In May 2012, The NYS Coallition of Mental Hygiene Directors issued a statement (link to statement) in opposition to closing loopholes in Kendra's Law. Following is our response. There document in opposition follows
Answers to Concerns Expressed by Local Mental Hygiene Directors (CLMHD) to Closing Cracks in Kendra's Law that Put Patients, the Public, and Police at Risk. (A6987/S4881)
Legislative and independent research proved Kendra's Law reduced arrest, incarceration, and dangerous behavior for a group of people with very serious mental illnesses who are prone to go off treatment and become violent. Research also identified cracks in the law that prevent some patients from benefiting from Kendra's Law. These cracks have put the public, patients, and police at risk:
• Seriously mentally ill people who already have a history of dangerous behavior (i.e., involuntarily treated); and/or criminal behavior (i.e., incarcerated), are regularly released into the community without first determining if they need ongoing treatment.
• Seriously mentally ill individuals who are being kept healthy and nonviolent only because of Kendra's Law are having their court orders expire without a review of whether the orders should be renewed.
• Seriously mentally ill individuals who are in need of AOT to prevent them from becoming incarcerated, arrested or psychotic are not receiving it, because families reporting these individuals are ignored.
In 2009, Senator Catherine Young and Assemblymember Ailleen Gunther introduced bipartisan bills (S6987/S4881) narrowly targeted to close these cracks. Their bills would ensure more who could benefit from Kendra's Law are considered for inclusion. The NYS Conference of Local Mental Health Directors (CLMHD) objects. In May 2012, the legislators amended their bill to address some CLMHD concerns, while preserving the objective of the bill to save money, improve care, and keep the public safer.
To place CLMHD concerns in context, it is important to understand that providing services to the most seriously ill should be, but the core function of mental hygiene directors. Their raison d'etre. Unfortunately, this core function of providing services to the most seriously ill is often ignored in favor of providing services to others. This approach sends the most seriously ill to jails and prisons and puts public and police at risk. To counteract this, improvement of care for the most seriously ill almost always and exclusively has to be obtained by legislation or law suits. Kendra's Law is one such piece of legislation. It not only allows courts to commit the seriously ill to accept treatment, it commits the mental health system to meeting their core responsibility of providing it.
CLMHD Overview Concerns:
CLMHD presents an overview of concerns as well as eight specific concerns. The overview concerns emphasize (1) that mental health directors need more money, (2) that with restructuring going on 'now is not the time', and (3) that an early report showing Kendra's Law is effective made reference to 'more research being needed'.
More money is always good. And one study did reflect the fact that when introduced, Kendra's Law was partially funded. However, the study also found Kendra's Law saves taxpayers money by reducing hospital, court, and incarceration costs. The same study quoted by CLMHD shows that Kendra's Law improved access to services; improved treatment plan development, discharge planning, and coordination of service planning" and most importantly, improved collaboration between mental health and court systems. While CLMHD mentioned short-term funding, there was no long-term funding for Kendra's Law and the study found in spite of no funding:
In the long run, however, overall service capacity was increased, and the focus on enhanced services for AOT participants appears to have led to greater access to enhanced services for both voluntary and involuntary recipients.
CLMHD also notes that a study suggested 'more research was needed'. Like money, more research is always good. And like mental health directors, researchers always want it. But CLMHD fails to note there have been at least six more peer-reviewed studies since the 2005 study. On June 30, 2009, a team of independent researchers released the report of their long-term study of AOT throughout New York State and in October, 2010 Psychiatric Services published six peer reviewed studies on the AOT program. These reports confirm patients given mandatory outpatient treatment who were more violent to begin with - were nevertheless four times less likely than members of the control group to perpetrate serious violence after undergoing assisted outpatient treatment and found less frequent psychiatric hospitalizations, shorter length of hospitalizations, reduction in the likelihood of arrest, higher social functioning, slightly less stigma and no increase in perceived coercion.
Now is not the time
CLMHD notes that New York is restructuring Article 31 mental health clinics and instituting other reforms that make this not the right time to close the cracks. This is erroneous. The fact that NY is restructuring makes it imperative to do this now. All restructurings of New York's mental health services (closing clinics, closing hospitals, getting out of the business of provisioning services, etc.) have worked to the detriment of those with the most serious illnesses and resulted in more people being incarcerated for mental illness in New York than hospitalized. As a result of the mental health system forsaking the most seriously ill, all improvements in treatment of the most seriously mentally ill have been the result of legislative action and court cases, not voluntary efforts by state or local officials. While the current restructuring may or may not benefit people with mental 'health' issues, they will no-doubt make it harder for those with the most serious illnesses to get treatment. Further, failure to close the cracks will result in more preventable tragedies like the stabbing of two officers in the Bronx, the stalking of a mayor in Middletown, the shooting of two parents in Staten Island, the stabbing of an officer in New York, and the deaths of numerous persons with mental illness in New York who come in contact with police as a result of the mental health systems' failure to treat them.
Eight Specific CLMHD Concerns
Some of the eight specific concerns of CLMHD have been addressed by amendments the authors recently made to A6987/S4881. Some concerns are unfounded; and some are unconvincing. Following are the eight concerns and a response to them.
CLMHD Position # 1: Opposes the state monitoring expiring court orders
CLMHD misunderstands the language in (MHL) 7.17 (f). There is no language being inserted that changes the state's responsibility to one of "operational responsibility" or involvement in "clinical decisions". Program Coordinators do not monitor and oversee individual patients, they provide oversight and monitoring of "assisted outpatient programs" (9.60(a)(9). Program coordinators already monitor that each AOT recipient has a case manager, gets services, that services are timely, etc. The current bill merely adds 'expiring orders' to the list of tasks assisted outpatient treatment coordinators should monitor. It is important to note that this provision might have prevented several tragedies across New York including the recent stabbing of Police Officers William Fair and Phillip White in the Bronx by mentally ill Bennedy Abreu. Mr. Abreu was on a Kendra's Law Order. But it was allowed to expire without review.
CLMHD Concern # 2: Opposes mental health directors investigate reports of dangerous mentally ill individuals that are received from family members.
CLMHD claims they do monitor reports received from family members while simultaneously opposing the requirement to do so. In deference to CLMHD, the bill sponsors have changed this provision. Directors are no longer obligated to receive reports from family members. Instead, the amended bill requires OMH to come up with regulations on how to handle reports received from family members. As part of the regulatory process, CLMHD will have input into the ultimate outcome. It is however unfortunate that CLMHD blames "dysfunctional families" for wanting to petition, rather than a non-responsive mental health system for making it necessary. Many instances of violence by persons with mental illness are a frequently a direct result of this type of thinking. For example, this provision might have prevented Arthur and Marion Bellucci from being stabbed to death by their mentally ill son, Eric, in Staten Island. Before they were killed, Eric's parents told authorities Eric was dangerous and begged authorities to treat him. They were ignored.
CLMHD Concern #3: Opposes mental health directors having to include information on expiring orders report in their quarterly reports
CLMHD claims that the requirement to include information on expiring court orders in their quarterly reports "almost create(s) a statutory presumption in favor of AOT extensions…" That is not true. Reporting that a court order has expired, does not require it to be renewed.
CLMHD # 4: Opposes allowing testing for drugs to be 'random' or allowing training consumers on how to manage medications, symptoms or finances to be listed as allowable services
None of the services above are mandated. The legislation specifies all may be included in the treatment plan. Since it is the local mental hygiene director who draws up the treatment plan, if the county does not offer these services, they need not be included in their plan. They are optional. Further, drug testing may already be included in a court order, the bill just specifies it can be "random". Likewise, training consumers on managing medication and symptoms is already included in case management or physician services provided to patients. This bill merely enumerates them so those developing treatment plans specifically consider them when drawing up their plans. Courts have already determined that providing non-clinical financial management services to individuals in AOT is a useful and allowable service. This bill merely codifies what courts have decided so those preparing treatment plans, can consider whether or not to offer it. In the Matter of William C., the court acknowledged that the statute does not specifically authorize the appointment of a representative payee, but the court concluded that "[i]t cannot be seriously disputed that money management is a service which would assist a mentally ill person in "living and functioning" as a productive member of the community." This case suggests that other traditionally non-clinical services may be included in an AOT treatment plan to the extent that such services are essential to the ultimate goal of the treatment plan – for the patient to remain safely in the community. Certainly it would extend to medication and symptom management training, which are clinical. It is important to note that this provision might have prevented a mentally ill substance abuser from becoming homeless because the program which was supposed to act as a representative payee failed to do so. (See Andrea Peyser, NY Post, 1/7/10).
CLMHD Concern #5A: Opposes mental health directors being informed of mentally ill prisoners who are being released from jails and prisons
A6987/S4881 was amended in response to the concerns of CLMHD. It no longer requires directors of community services (DCS) to receive reports of those being discharged from criminal justice. Instead, it clarifies that corrections officials should petition directly. It is important to note that this provision might have changed the fate of Police Officer Loor. Terrence Hale who stabbed Officer Loor in East Harlem was mentally ill and released from incarceration without anyone evaluating his ability to live safely in community and potential need for Kendra's Law.
CLMHD Concern #5B: Opposes mental health directors being informed of involuntarily committed patients who are being released from hospitals for whom no petition has been filed.
CLMHD objects to being informed about mentally ill individuals being released from involuntary commitment if the hospital did not file a petition. These individuals have already been found 'danger to self or others' or 'gravely disabled'. It is critical that directors be informed when these individuals are being released back into the community in order to decide whether to provision voluntary services, file a petition, or do nothing. Again: helping ameliorate the symptoms of the most severely ill is a core responsibility of local mental health directors. Only be receiving reports can mental health directors decide whether to prioritize these individuals or not. As a result of not having this provision, there are more New Yorkers with mental illness incarcerated than hospitalized.
To keep patients, public and police safer, the most important people to evaluate for AOT are those who are mentally ill and were involuntarily committed (i.e., already danger to self or others) and those who are mentally ill and incarcerated. Someone should be evaluating them. Community mental health officials are the appropriate officers. Allowing the "head in the sand" approach to continue is cruel to individuals with serious mental illness; needlessly burdens the criminal justice system and puts everyone at risk.
CLMHD # 6 Opposes making a reasonable effort to seek information from family members when developing a treatment plan
CLMHD claims mental health directors already solicit family input while simultaneously opposing codifying it. To address the concerns of CLMHD the bill's authors amended their bill to clarify that the reasonable effort to solicit family input need only be directed to a single family member, not an entire family. Failure to seek information from a family member often has tragic results. For example, many mentally ill individuals will tell doctors that upon discharge from involuntary commitment they are going to live with their parents, even when they parents may have moved or are too old or poor to provide housing. Without soliciting input from families, doctors have no way to verify. In addition, family members often know which treatments have and have not worked or caused problematic side-effects. Without access to that information, doctors could prescribe treatments that are dangerous. While HIPPA precludes disclosing information to families without permission, it does not prevent receiving it. The bill language is totally consistent with OMH regulations pertaining to patients who are not under AOT. According to OMH HIPPA guidelines, "New York State Mental Hygiene Law not only allows but requires the involvement of an authorized representative of the patient (which can include family members) in treatment planning, because it is presumed that such involvement has important therapeutic benefits."
CLMHD #7: Opposes increasing the maximum allowable period under Kendra's Law from six months to one year in spite of research that shows it is more beneficial
CLMHD expresses fear that this will result in new constitutional challenges to the law. However, 79% of those in AOT have been in it more than the current maximum of 6 months, but it required a separate court hearing to extend the six month order to reach one year. By allowing the maximum period to extend up to a year at the initial hearing, it would eliminate the costs of repetitioning, re-evalutation and holding court hearings for the renewal. The assisted outpatients can still be put in the program for as little as 1 day if needed. There is no minimum. Longer enrollments would only be allowed when clinically indicated and the same due process protections would apply and the assisted outpatient would still maintain the ability to petition to have their enrollment shortened. Perhaps more importantly, a study commissioned by the legislature found strong evidence that enrollments of one year or longer have sustained benefits even after AOT ends, while services delivered for only six months are less likely to do so. Extending the maximum allowable time frame (especially in light of CLMHD opposition to considering if renewal petitions should be filed) would deliver greater improvement and reduce costs. As provisions are severable, there is no fear that extending the time frame would obviate the entire law. Petitions would merely be filed for the already allowable six month period.
CLMHD #8: Opposes doctors being allowed to determine that a significant failure to comply with treatment or drug testing means someone "shall" be evaluated to see if they need involuntary inpatient commitment.
To address the concerns of CLMHD the bill's authors amended their bill. Prior to amendment A6987/S4881 stated that if a physician "determines that the assisted outpatient's failure to comply with the assisted outpatient treatment
includes a substantial failure to take medication, submit to blood testing or urinalysis, or receive treatment for alcohol or substance abuse,
such physician shall presume that the assisted outpatient is in need of
an examination to determine whether he or she has a mental illness for which hospitalization is necessary". The new language changes "shall" to "may"
By closing cracks between the criminal justice system and the mental health system; and closing cracks between the inpatient system and the outpatient system, A6987/S4881 will improve patient care, keep the public and police safer, help mental health directors identify seriously ill individuals who may be in need of treatment, save money through reduced incarceration and hospitalization, streamline procedures consisted with research; and reduce the tragedies caused when people with serious mental illness who have a history of dangerous behavior or incarceration are allowed to go untreated without first examining the consequences of that decision.
Pass A6987/S4881, as amended
Prepared by Mental Illness Policy Org. 5/7/12
NEW YORK STATE CONFERENCE OF LOCAL MENTAL HYGIENE DIRECTORS, INC.
An Affiliate of the New York State Association of Counties
41 State St., Suite 505, Albany, NY 12207 (518) 462-9422 FAX (518) 465-2695 E-MAIL: email@example.com www.clmhd.org
See Mental Illness Policy Org response
Memorandum in Opposition S4881 (Young)/A6987 (Gunther)
AN ACT to amend the mental hygiene law and the correction law, in relation to enhancing the assisted outpatient treatment program
The Conference of Local Mental Hygiene Directors (the Conference) strongly opposes S4881/A6987 which makes significant changes in the NY Assisted Outpatient Treatment law.
The Conference is a statutory organization established pursuant to Section 41.10 of the Mental Hygiene law consisting of the Directors of Community Services for the 57 counties and the City of New York. Chapter 408 of the Laws of 1999 creates a statutory framework for court-ordered Assisted Outpatient Treatment (AOT), to ensure that individual with mental illness and a history of hospitalizations and difficulties following a treatment plan participate in community-based services appropriate to their needs. The law attempts to ensure that services are received by those consumers least likely to pursue them and most likely to be dropped from other services because they present a unique challenge. This law establishes a procedure for obtaining court orders for certain individuals with mental illness to receive and accept outpatient treatment. Our members are in a unique position to judge the effectiveness of AOT since it is our members, the Directors of Community Services who are charged with the front line duty of helping to create and oversee the treatment plans which are the backbone of the law. We supported a five-year extension of this law in 2010 in order to study the implementation of AOT further, and we strongly disagree with the significant changes that this bill seeks to make; some of which we feel could invalidate the entire law as unconstitutional.
The independent study conducted by Duke University which was required by the first extension of this law answered the specific questions asked by the Legislature and concluded that the AOT Program improves a range of important outcomes for its recipients. However, the report also found that the results and uses of AOT differ substantially around the State and specifically said that “further study is necessary” to explore the differences in uses of AOT in different parts of the state. Most importantly, as the report indicated that the “introduction of New York’s AOT Program was accompanied by a significant infusion of new service dollars” and is therefore “a critical test of how a comprehensively implemented and well-funded program of assisted outpatient treatment can perform.” Since the time frame which was evaluated in the report, all state funding has been significantly reduced so we are currently reevaluating the use of AOT in a different financial environment, per the five year extension granted by the Legislature in 2010. The report also indicated that an “important difference among regions [is in] the use of enhanced voluntary service (EVS) agreements (sometimes referred to as "enhanced services") in lieu of a formal AOT court order.” Under a voluntary agreement, the recipient signs a statement that he or she will adhere to a prescribed community treatment plan. Far more study is necessary before a final decision can be reached as to whether or how the use of such voluntary contracts may be factored into the overall Assisted Outpatient process.
Finally and critically, New York is in the midst of a major restructuring of the operation and funding of all Article 31 mental health clinics. We are facing the unknowns of how Federal Healthcare Reform is going to impact our public mental health system. We are faced with the findings in the Duke report that in its early years, the AOT Program reduced access to services for non-AOT recipients and that “lack of continued growth of new service dollars will likely increase competition for access to services once again.” It is imperative that we see how all these stars will align before the legislature can make a reasoned decision regarding any substantial restructuring of the AOT statute.
Some of the changes this bill seeks to effect do not make sense and may be unconstitutional.
The bill seeks to amend Mental Hygiene Law (MHL) 7.17 (f) to require that AOT program coordinators monitor local programs concerning expiring AOT orders which fundamentally changes the role of the program coordinator from one of monitoring and oversight to one of operational responsibility. Currently health care professionals make these decisions on the local level. This change would mean that a State employee without having seen the patient would be overseeing clinical decisions made by health care professionals on the local level. We strongly oppose any such usurpation of local clinical decision making.
The bill seeks to amend MHL 9.47 (b) to require that a director of community services' responsibility to investigate reports of persons who may be in need of AOT applies to reports received from family and community members, as well as written reports received from hospital directors. This requirement appears to give family members, whose motivation may not be the best interests of the patient, statutory authority to limit the professional discretion of the DCS. Mental Illness often causes dysfunction in families and DCSs currently receive such reports and have the discretion to, and do investigate as deemed appropriate.
The bill seeks to amend MHL 9.48 to require that AOT program directors' quarterly reports to program coordinators include information on any expired AOT court orders, including the determination made as to whether to petition for renewal, the basis for such determination, and the court's disposition of the renewal petition. This would almost create a statutory presumption in favor of AOT extensions without showing any clinical need or value. It once again requires the program coordinator to second guess clinical decisions by local health care professionals. Since the renewal decision is solely within the county’s discretion, there is no point to this provision other than to create conflict without benefit, and it will ultimately be a disincentive to original AOT petitions.
The bill seeks to add medication or symptom management training, financial management services, and random testing for drugs or alcohol as listed potential services to be included in AOT and specifies that other services which may be included in an individualized treatment plan need not be clinical in nature. This results in two problems. Local mental hygiene departments are simply not in a position to offer non clinical services such as financial management training to AOT patients. The second is the legality. If the recipient is in need of an Article 81 guardianship then that is the correct proceeding. Attempting to bypass the criteria of Article 81 in an AOT order presents constitutional issues. As the Court of Appeals stated in Matter of K.L. “[t]he determination by a court that a patient is in need of assisted outpatient treatment shall not be construed as or deemed to be a determination that such patient is incapacitated pursuant to article eighty-one” of the Mental Hygiene Law.
The bill attempts to create a major unfunded mandate on the locality by requiring the DCS to receive and investigate reports by hospital directors discharging patients who were initially admitted on an involuntary basis in cases when the hospital director does not petition for an AOT order upon release and also requires DCS investigation of AOT need for inmates released from hospitals serving prisoners with mental illness. In counties with State hospitals or prisons this could result in numerous additional reviews of cases where the treating professional has already determined that the AOT order is not necessary.
The bill seeks to amend the statute to specifically require examining physicians to make “reasonable effort” to obtain information from the family members of the subject of an AOT petition. Again in appropriate cases a physician developing the treatment would certainly make reasonable efforts to obtain relevant information which may include family input when appropriate. This provision might require such input in every case creating rights accruing to family members which do not otherwise exist under the statute.
The bill would allow the increase of the maximum length of initial order to one year. This again would change the due process equation upheld by the Matter of K.L., and will certainly result in new constitutional challenges to the entire law.
A major problem with the bill is that it establishes a presumption that a person with an assisted outpatient treatment order should be removed to a hospital to determine his or her need for admission merely based on his or her failure to take medication, submit to blood testing or urinalysis, or comply with drug or alcohol treatment. This not only creates a serious limitation on clinical judgment in the removal decision but also creates a major likelihood of constitutional challenges to the statute. The Court of Appeals has held that: “If an assisted outpatient later fails or refuses to comply with treatment as ordered by the court; if efforts to solicit voluntary compliance are made without success; and if in the clinical judgment of a physician, the patient may be in need of either involuntary admission to a hospital or immediate observation, care and treatment pursuant to standards set forth in the Mental Hygiene Law, then the physician can seek the patient’s temporary removal to a hospital for examination to determine whether hospitalization is required.” Removal of most of those criteria clearly undermines the legislature’s careful consideration of constitutional issues in the original drafting of the law.
In Matter of K.L., the court said “The restriction on a patient’s freedom effected by a court order authorizing assisted outpatient treatment is minimal, inasmuch as the coercive force of the order lies solely in the compulsion generally felt by law-abiding citizens to comply with court directives. For although the Legislature has determined that the existence of such an order and its attendant supervision increases the likelihood of voluntary compliance with necessary treatment, a violation of the order, standing alone, ultimately carries no sanction. Rather, the violation, when coupled with a failure of efforts to solicit the assisted outpatient’s compliance, simply triggers heightened scrutiny on the part of the physician, who must then determine whether the patient may be in need of involuntary hospitalization.” This bill seeks to substantially change that equation and we respectfully contend that no such action should be taken without very careful study of the impacts and legality of such changes.
We thank you for your consideration of these critical concerns and respectfully oppose this legislation.
See Mental Illness Policy Org response