BILL NUMBER: S1080
SPONSOR: SCARCELLA-SPANTON
 
TITLE OF BILL:
An act to amend the mental hygiene law, in relation to hospitalization,
care coordination, and assisted outpatient treatment for persons with
mental illness
 
PURPOSE:
This bill will provide an alternative means for mental health inter-
vention by providing for court ordered in patient medical treatment, as
well as assisted outpatient treatment for persons with mental illness.
 
SUMMARY OF PROVISIONS:
Sections one and two of the bills set out legislative findings and
provide for the new law to be known as the Supportive Interventions Act.
Sections 3 through 35 would make the following amendments and additions
to the Mental Hygiene Law (MHY):
 
STANDARDS FOR INVOLUNTARY MENTAL HEALTH INTERVENTIONS
Bill § 3 would revise definitions in MHY § 9.01 to:
* *clarify that a substantial risk of harm to a person may be manifested
by the person's substantial inability to meet their own basic needs for
food, clothing, shelter, or medical care.
* *authorize involuntary intervention in circumstances where a person
with mental illness is at substantial risk of psychiatric harm.
* *Improve readability of existing language and make the defined terms
consistent with their usage in MHY Article 9.
Bill § 11 would delete the definition of "likelihood to result in seri-
ous harm" in MHY § 9.39, as the revised definition in § 9.01 would apply
to all of MHY Article 9.
Pursuant to a new MHY § 9.04 added by bill § 4, a clinical determination
of whether a person's mental illness is "likely to result in serious
harm to self or others" would be required to consider all relevant
information presented to the evaluating facility's staff, including
credible reports of the person's recent behavior and any known informa-
tion related to the person's medical and behavioral history; the
person's current ability, with. available support, to adhere to outpa-
tient treatment; and the expected long-term impact on the person's
health or safety of actions or self-neglect caused by mental illness.
 
QUALIFIED CLINICAL EXAMINERS
Bill § 3 would revise MHY § 9.01 to add a definition of "qualified clin-
ical examiner," which would include licensed psychologists, psychiatric
nurse practitioners and clinical social workers.
The bill would amend the MHY to give qualified clinical examiners the
same authority that physicians now have to:
* *examine a person and certify them for involuntary admission to a
hospital. MHY § 9.27 (a) and (d), as amended by bill § 6; § 9.37, as
amended by bill § 10; § 9.55, as amended by bill § 17; § 9.57, as
amended by bill § 19.
* *authorize an ambulance service to transport such a person. MHY §
9.27(i), as amended by bill § 6; § 9.55, as amended by bill § 17; §
9.60(n), as amended by bill § 28.
* *examine a person brought to the hospital pursuant to the certif-
ications described above and to inform the hospital director's determi-
nation about involuntary admission; however, like a physician, a quali-
fied clinical examiner could not do this examination under MHY § 9.27 if
they were one of the professionals who had completed the earlier certif-
ications. MHY § 9.27(e), as amended by bill § 6; § 9.39 as amended by
bill § 11.
* *be designated by a Director of Community Services (DCS), or such
director's designee, to apply to a hospital for a person's involuntary
admission to a hospital. MHY § 9.37(a), as amended by bill § 10.
* *examine a person brought to a comprehensive psychiatric emergency
program (CPEP) to determine whether the person may have a mental illness
for which immediate observation, care and treatment in a CPEP is appro-
priate; and perform the examination required to confirm the findings of
another physician or qualified clinical examiner regarding the need for
admission. MHY § 9.40, as amended by bill § 12.
* *support a petition for assisted outpatient treatment (AOT) brought
under MHY § 9.60(e)(1) by recommending the subject for AOT, based on an
examination conducted no more than 10 days before submission of the
petition, or if appropriate attempts to conduct an examination have been
unsuccessful, based on reason to suspect that the subject meets the
criteria for AOT. MHY § 9.60(e), as amended by bill § 23.
* *Request that a DCS remove a person who has not complied with an AOT
order to a hospital for an examination to determine whether hospitaliza-
tion is necessary. MHY § 9.60(n), as amended by bill § 28.
* *determine that a person who is subject to conditional release from a
hospital has a mental illness and may be in need of involuntary care and
treatment in a hospital pursuant to MHY Article 9. MHY § 29.15(e)(1), as
amended by bill § 31.
* *be designated by a DCS who is not qualified to conduct examinations
under the MHY to conduct examinations on such director's behalf. MHY §
41.09(b), as amended by bill § 34.
Pursuant to amendments to MHY § 9.05 that would be made by bill § 5,
qualified clinical examiners would be disqualified from acting in a case
under the same circumstances as now apply to examining physicians.
Bill §§ 6 through 9 and § 11 would amend MHY §§ 9.27(a), 9.29(a),
9.31(a), 9.33(a), and 9.39(b) to change the term "medical certification"
to "clinical certification," recognizing the authority of qualified
clinical examiners described above.
 
QUALIFIED MENTAL HEALTH PROFESSIONALS
Bill §§ 3 and 20 would move the definition of "qualified mental health
professional" currently in MHY § 9.58 to § 9.01, and expand it to
include qualified clinical examiners; registered nurses; and licensed
master social workers, mental health counselors, and marriage and family
therapists, when such professionals are working under the supervision of
a physician or qualified clinical examiner.
Under MHY § 9.27(d), as amended by bill § 6, a physician or qualified
clinical examiner evaluating a person for involuntary admission would be
required, insofar as reasonable, to consult with a qualified mental
health professional who has furnished prior treatment.
Under a new MHY § 9.56 that would be added by bill § 18, directors of
adult care facilities would be authorized to direct the removal of a
resident to a hospital or crisis stabilization center for evaluation, if
such removal is requested by a physician or qualified mental health
professional who serves on the staff of the facility, has completed
training described in § 9.56, and finds that the resident appears to be
mentally ill and is acting in a manner likely to result in serious harm
to self or others.
 
NOTIFICATIONS AND REPORTS TO DIRECTORS OF COMMUNITY SERVICES (DCS)
Bill § 13 would amend MHY § 9.41 to clarify that when peace officers or
police officers temporarily detain a person pending further examination
or admission to a hospital or CPEP, they may satisfy the obligation to
notify the DCS by notifying the DCS's designee.
Bill § 14 would amend MHY § 9.45 by adding domestic partners and cohabi-
tants of a person's home to those who may report to the DCS or the DCS's
designee that a person has a mental illness for which immediate care and
treatment is appropriate and that is likely to result in serious harm to
self or others, authorizing the DCS or designee to direct the person's
removal to a hospital.
Bill § 15 would amend MHY § 9.46(b) to maintain the scope of mental
health professionals' duty under such statute to report concerns about a
patient's risk of serious harm to the DCS or the DCS's designee. Under
the amendment, and consistent with current law, a report would only be
required when the mental health professional determines that a person is
likely to engage in conduct that would result in serious physical harm
to self or others. (The amendment is necessitated by the integration of
"psychiatric harm" into MHY § 9.01's definition of "likely to result in
serious harm to self or others" pursuant to amendments in bill § 3.
Under bill § 15, a mental health professional's perceived risk of
psychiatric harm would not trigger a reporting duty under MHY § 9.46.)
 
RESIDENTS OF ADULT CARE FACILITIES
Bill § 18 would add a new MHY § 9.56 permitting physicians and qualified
mental health professionals employed at an adult care facility to
request the facility's director to direct the removal of any resident
who appears to be mentally ill and is acting in a manner that is likely
to result in serious harm to self or others. The bill would empower the
facility's director to require peace officers or police officers to
transport the resident to a hospital and require the Commissioner of the
Office of Mental Health to develop standards relating to training for
physicians and mental health professionals on their authority under this
new section. Persons removed to a hospital pursuant to § 9.56 would
maintain their status as residents of the adult care facility until
admitted to the hospital, or for 24 hours following release upon a
determination of a physician or qualified clinical examiner not to admit
them.
 
ASSISTED OUTPATIENT TREATMENT (AOT)
Bill § 21 would amend MHY § 9.60(c)(4)(iii) to streamline the criteria
by which a court assesses an increase in symptoms of mental illness in a
person previously subject to AOT, and to remove the role of the DCS in
determining whether such person is in need of an additional period of
AOT.
Bill § 22 would amend MHY § 9.60(e)(1)(vi) to broaden the range of indi-
viduals who may initiate a petition for AOT to include a domestic part-
ner of the subject of the petition and a qualified mental health profes-
sional as defined in MHY § 9.01 who is treating the subject of the
petition for a mental illness.
Bill § 23 would amend MHY §§ 9.60(e)(3) and 9.60(e)(4) to permit quali-
fied clinical examiners to submit affirmations or affidavits in support
of petitions for AOT.
Bill § 24 would amend MHY § 9.60(h) to permit qualified clinical examin-
ers to perform evaluations of individuals who are the subject of
petitions for AOT.
Bill § 25 would amend MHY § 9.60(i) to empower psychiatric nurse practi-
tioners to develop written treatment plans for AOT and to permit physi-
cians and psychiatric nurse practitioners to testify by video in court
proceedings upon consent of the subject of the petition or upon a find-
ing of good cause.
Bill § 26 would amend MHY § 9.60(j)(2) to provide that a court shall
order AOT for an initial period of one year, unless a shorter period is
warranted by a showing of good cause or the request of the petitioner.
(Current law provides for an initial AOT period "not to exceed" one
year.)
Bill § 27 would make a technical amendment to MHY § 9.60(k) in accord-
ance with bill § 25's grant of authority to psychiatric nurse practi-
tioners to develop AOT written treatment plans.
Bill § 28 would amend MHY § 9.60(n) to include qualified clinical exam-
iners in the management of patients who fail to comply with AOT.
Bill § 29 would amend MHY § 9.60(s) to streamline the process for a DCS
to obtain treatment history information in furtherance of an investi-
gation under MHY § 9.47 of a person's eligibility for AOT, and to
require that the DCS provide or make a good faith attempt to provide the
person who is the subject of such investigation with advance notice of
the DCS's intent to seek such disclosure and an opportunity to challenge
such disclosure in court.
Bill § 33 would add a new subdivision (f-1) to MHY § 29.15 to require
providers of psychiatric inpatient services to assess all patients for
AOT eligibility before discharge, and to maintain records as to the
findings of each such assessment and the actions taken upon such find-
ings.
 
COMMUNICATION AND COORDINATION AMONG PROVIDERS
Bill § 30 would add a new § 9.64 requiring the director of a hospital or
CPEP to provide notice to any community mental health provider that an
individual who is maintained on the provider's caseload has been admit-
ted as a patient.
Bill § 32 would amend MHY § 29.15(f) to require a provider of psychiat-
ric inpatient services, prior to discharging or conditionally releasing
a patient, to interview a representative of a community provider of
mental health services that maintains the patient on its caseload and
provide such representative an opportunity to participate in the devel-
opment of a written service plan for such patient. It would also amend
MHY § 29.15(m) to require a provider of psychiatric inpatient services
to notify any community provider of mental health services that main-
tains the patient on its caseload, and any adult care facility where the
patient resided at the time of admission, of the patient's discharge or
conditional release.
 
TRAINING
Bill § 35 would require the Office of Mental Health to conduct training
on the changes included in this bill and their implications for practi-
tioners.
 
EFFECTIVE DATE
Bill § 36 would provide that this act would take effect 90 days after it
becomes law. It would authorize the addition, amendment and/or repeal of
any rule or regulation necessary for the implementation of this act to
be made and completed before the act's effective date. It also provides
for the amendments made by this legislation not to affect the repeal or
sunset of various provisions of the MHY.
 
JUSTIFICATION:
In clarifying that a substantial risk of harm to a person may be mani-
fested by their substantial inability to meet their basic human needs of
food, clothing, shelter or medical care, this bill effectively codifies
the holding of the Appellate Division in  
BOGGS VS. NEW YORK CITY HEALTH
& HOSPITALS CORPORATION, 132 A.D.2d 340, 342 (1st Dep't 1987).
Despite the Boggs holding that " 
A person may be involuntarily confined
for care and treatment, where his or her mental illness manifests itself
in neglect or refusal to care for themselves," New Yorkers in crisis are
frequently denied hospital care by a pervasive misunderstanding that the
law requires conduct that is violent, suicidal, or places the individual
at imminent risk. New York is one of only three states lacking explicit
statutory recognition for inability to meet basic needs as a form of
danger-to-self.
Additionally, this legislation aligns New York's laws with those of
dozens of other states by recognizing a substantial risk of psychiatric
harm-not just "physical" harm-as a basis for civil commitment. A growing
body of research indicates that the longer a person remains in a state
of untreated psychosis, the lower their prospects for eventual mental
health recovery. By expressly authorizing involuntary care to prevent
such psychiatric deterioration, this bill affirms the important princi-
ple that the potential for harm to a person's brain matters just as much
as the potential for harm to other parts of the body.
To help ensure that psychiatric inpatients receive appropriate lengths
of stay to adequately prepare them for successful return to the communi-
ty, this legislation also clarifies the range of evidence that should be
considered when a facility determines whether to admit or retain a
person for psychiatric treatment. Too often, hospital evaluations of a
person's condition are based solely on how the person presents in the
moment and ignore the broader context of the person's mental health
history and behavior.
Mental health facilities and programs in New York face significant chal-
lenges due to a limited workforce. This legislation eliminates needless
limitations on professional practice by expanding the types of clini-
cians who can perform evaluations for hospital admission. Physicians
are not uniquely qualified to diagnose mental illness and assess likeli-
hood of serious harm. This bill would allow clinicians such as psychol-
ogists, psychiatric nurse practitioners, and licensed clinical social
workers to perform this function, thereby allowing physicians more time
to provide medical care to patients. This is consistent with the scope
of evaluation authority in numerous other states.
In addition, New York needs more mobile crisis outreach teams (MCOTs)
who can identify individuals in the community with acute mental health
needs, engage them in voluntary treatment when possible, and direct
their removal to a hospital for evaluation when necessary. The challenge
of meeting this demand would be greatly reduced if MCOTs could be assem-
bled from a wider pool of mental health professionals than current law
allows. By expanding MCOT eligibility to licensed mental health counse-
lors and licensed marriage and family therapists, this legislation will
expand access to this vital service.
Mental health professionals working in homeless shelters and other
adult-care facilities frequently encounter clients in psychiatric crises
in need of transport to a hospital for evaluation. Under current law,
shelter staff lack authority to direct removals, leaving them dependent
upon police to exercise their own removal authority. Often, the opinion
of the police officer who arrives on the scene does not align with the
training-informed judgment of the shelter staff clinician who requested
the assistance, leaving the shelter unable to effectuate the removal.
This legislation empowers adult care facility directors to direct the
transport of a resident for evaluation, upon the finding of need by a
clinician on the facility's staff who has completed a certification
process identical to that currently required for clinicians who serve on
mobile crisis outreach teams.
This legislation also addresses critical gaps in communication between
inpatient and outpatient providers when vulnerable individuals enter and
exit hospital care. Community providers such as Assertive Community
Treatment (ACT) and Intensive Mobile Treatment (IMT) teams that serve
clients with severe mental illness face an immense challenge in keeping
track of their clients' whereabouts and conditions, especially for those
who are homeless. It is even harder to keep track when a client experi-
ences a crisis and is hospitalized. Current law imposes no duty on
hospitals to inform outpatient providers when their clients are admitted
or discharged, nor to involve the patient's community-based providers in
discharge planning. To enhance coordination of care