S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7252

                            I N  S E N A T E

                             March 25, 2010
                               ___________

Introduced  by  Sen.  MORAHAN  --  (at  request  of the Office of Mental
  Health) -- read twice and ordered printed,  and  when  printed  to  be
  committed to the Committee on Mental Health and Developmental Disabil-
  ities

AN  ACT  to  amend  the  mental  hygiene  law  and the education law, in
  relation to creating mental health incident review panels

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The mental hygiene law is amended by adding a new section
31.37 to read as follows:
S 31.37 MENTAL HEALTH INCIDENT REVIEW PANELS.
  (A) THE COMMISSIONER IS AUTHORIZED TO ESTABLISH A MENTAL HEALTH  INCI-
DENT  REVIEW  PANEL  FOR THE PURPOSES OF REVIEWING THE CIRCUMSTANCES AND
EVENTS RELATED TO A SERIOUS INCIDENT  INVOLVING  A  PERSON  WITH  MENTAL
ILLNESS.   FOR PURPOSES OF THIS SECTION, A "SERIOUS INCIDENT INVOLVING A
PERSON WITH MENTAL ILLNESS" MEANS AN INCIDENT OCCURRING IN THE COMMUNITY
IN WHICH A PERSON WITH A SERIOUS MENTAL ILLNESS IS PHYSICALLY INJURED OR
CAUSES PHYSICAL INJURY TO ANOTHER  PERSON,  OR  SUFFERS  A  SERIOUS  AND
PREVENTABLE MEDICAL COMPLICATION OR BECOMES INVOLVED IN A CRIMINAL INCI-
DENT  INVOLVING VIOLENCE. A PANEL SHALL CONDUCT A REVIEW OF SUCH SERIOUS
INCIDENT IN AN ATTEMPT TO IDENTIFY PROBLEMS OR  GAPS  IN  MENTAL  HEALTH
DELIVERY  SYSTEMS  AND TO MAKE RECOMMENDATIONS FOR CORRECTIVE ACTIONS TO
IMPROVE THE PROVISION OF MENTAL HEALTH OR RELATED SERVICES,  TO  IMPROVE
THE  COORDINATION,  INTEGRATION AND ACCOUNTABILITY OF CARE IN THE MENTAL
HEALTH SERVICE SYSTEM, AND TO ENHANCE INDIVIDUAL AND PUBLIC SAFETY.
  (B) A MENTAL HEALTH INCIDENT REVIEW PANEL SHALL INCLUDE, BUT NEED  NOT
BE  LIMITED TO, REPRESENTATIVES FROM THE OFFICE OF MENTAL HEALTH AND THE
LOCAL GOVERNMENTAL UNIT WHERE THE SERIOUS INCIDENT  INVOLVING  A  PERSON
WITH  A  MENTAL  ILLNESS OCCURRED. A MENTAL HEALTH INCIDENT REVIEW PANEL
MAY ALSO INCLUDE, IF DEEMED APPROPRIATE BY THE COMMISSIONER BASED ON THE
NATURE OF THE SERIOUS INCIDENT BEING REVIEWED,  ONE  OR  MORE  REPRESEN-
TATIVES  FROM  MENTAL  HEALTH  PROVIDERS,  LOCAL  DEPARTMENTS  OF SOCIAL
SERVICES, HUMAN SERVICES PROGRAMS, HOSPITALS, LOCAL  SCHOOLS,  EMERGENCY
MEDICAL  OR  MENTAL  HEALTH SERVICES, THE OFFICE OF THE COUNTY ATTORNEY,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD16170-01-0

S. 7252                             2

STATE OR LOCAL LAW ENFORCEMENT AGENCIES, THE OFFICE OF THE MEDICAL EXAM-
INER OR THE OFFICE OF THE CORONER, OR OTHER APPROPRIATE STATE  OR  LOCAL
OFFICIALS.
  (C)  NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY AND TO
THE EXTENT CONSISTENT WITH FEDERAL LAW, A MENTAL HEALTH INCIDENT  REVIEW
PANEL  SHALL  HAVE  ACCESS  TO  THOSE  CLIENT-IDENTIFIABLE MENTAL HEALTH
RECORDS, AS WELL AS ALL RECORDS, DOCUMENTATION AND REPORTS  RELATING  TO
THE  INVESTIGATION OF AN INCIDENT BY A FACILITY IN ACCORDANCE WITH REGU-
LATIONS OF THE COMMISSIONER, WHICH ARE NECESSARY FOR  THE  INVESTIGATION
OF  THE  INCIDENT  AND  THE  PREPARATION OF A REPORT OF THE INCIDENT, AS
PROVIDED IN SUBDIVISION (E) OF THIS SECTION. A  MENTAL  HEALTH  INCIDENT
REVIEW PANEL ESTABLISHED PURSUANT TO THIS SECTION SHALL BE PROVIDED WITH
ACCESS  TO  ALL  OTHER RECORDS IN THE POSSESSION OF STATE OR LOCAL OFFI-
CIALS OR AGENCIES, WITHIN TWENTY-ONE  DAYS  OF  RECEIPT  OF  A  REQUEST,
EXCEPT:  (1)  THOSE  RECORDS PROTECTED BY SECTION 190.25 OF THE CRIMINAL
PROCEDURE LAW, AND (II) WHERE PROVISION OF LAW ENFORCEMENT RECORDS WOULD
INTERFERE WITH AN ONGOING  LAW  ENFORCEMENT  INVESTIGATION  OR  JUDICIAL
PROCEEDING,  OR  IDENTIFY A CONFIDENTIAL SOURCE OR DISCLOSE CONFIDENTIAL
INFORMATION RELATING TO AN ONGOING CRIMINAL INVESTIGATION, HIGHLY SENSI-
TIVE CRIMINAL INVESTIGATIVE TECHNIQUES OR PROCEDURES,  OR  ENDANGER  THE
SAFETY OR WELFARE OF AN INDIVIDUAL.
  (D) MENTAL HEALTH INCIDENT REVIEW PANELS, MEMBERS OF THE REVIEW PANELS
AND PERSONS WHO PRESENT INFORMATION TO A REVIEW PANEL SHALL HAVE IMMUNI-
TY  FROM  CIVIL AND CRIMINAL LIABILITY FOR ALL REASONABLE AND GOOD FAITH
ACTIONS TAKEN PURSUANT TO THIS SECTION, AND SHALL NOT BE  QUESTIONED  IN
ANY  CIVIL  OR  CRIMINAL  PROCEEDING  REGARDING ANY OPINIONS FORMED AS A
RESULT OF A MEETING OF SUCH REVIEW PANEL. NOTHING IN THIS SECTION  SHALL
BE  CONSTRUED  TO  PREVENT  A  PERSON  FROM TESTIFYING AS TO INFORMATION
OBTAINED INDEPENDENTLY OF A MENTAL  HEALTH  INCIDENT  REVIEW  PANEL,  OR
INFORMATION WHICH IS PUBLIC.
  (E)  NOTWITHSTANDING  ANY  OTHER PROVISION OF LAW TO THE CONTRARY, ALL
MEETINGS CONDUCTED, ALL REPORTS AND RECORDS MADE AND MAINTAINED AND  ALL
BOOKS AND PAPERS OBTAINED BY A MENTAL HEALTH INCIDENT REVIEW PANEL SHALL
BE  CONFIDENTIAL,  AND  SHALL  NOT  BE OPEN OR MADE AVAILABLE, EXCEPT BY
COURT ORDER OR AS SET FORTH IN SUBDIVISION (G)  OF  THIS  SECTION.  EACH
MENTAL  HEALTH INCIDENT REVIEW PANEL SHALL DEVELOP A REPORT OF THE INCI-
DENT INVESTIGATED. SUCH REPORT SHALL NOT CONTAIN ANY INDIVIDUALLY  IDEN-
TIFIABLE  INFORMATION,  AND IT SHALL BE PROVIDED TO THE OFFICE OF MENTAL
HEALTH UPON COMPLETION. SUCH REPORTS MUST BE APPROVED BY THE  OFFICE  OF
MENTAL HEALTH PRIOR TO BECOMING FINAL.
  (F) IF QUALITY PROBLEMS OF PARTICULAR MENTAL HEALTH PROGRAMS ARE IDEN-
TIFIED  BASED  ON SUCH REVIEWS, THE COMMISSIONER IS AUTHORIZED, PURSUANT
TO THE RELEVANT PROVISIONS OF THIS CHAPTER, TO TAKE APPROPRIATE  ACTIONS
REGARDING  THE  LICENSURE OF PARTICULAR PROVIDERS, TO REFER THE ISSUE TO
OTHER RESPONSIBLE PARTIES FOR INVESTIGATION, OR TO TAKE OTHER  APPROPRI-
ATE ACTION.
  (G)  IN HIS OR HER DISCRETION, THE COMMISSIONER SHALL BE AUTHORIZED TO
PROVIDE THE FINAL REPORT OF A REVIEW PANEL OR PORTIONS  THEREOF  TO  ANY
INDIVIDUAL  OR  ENTITY  FOR  WHOM  THE  REPORT MAKES RECOMMENDATIONS FOR
CORRECTIVE OR OTHER APPROPRIATE ACTIONS THAT SHOULD BE TAKEN.  ANY FINAL
REPORT OR PORTION THEREOF SHALL  NOT  BE  FURTHER  DISSEMINATED  BY  THE
RECIPIENT.
  (H)  THE  COMMISSIONER SHALL SUBMIT AN ANNUAL CUMULATIVE REPORT TO THE
GOVERNOR AND THE LEGISLATURE INCORPORATING THE DATA IN THE MENTAL HEALTH
INCIDENT REVIEW PANEL REPORTS AND INCLUDING A SUMMARY  OF  THE  FINDINGS

S. 7252                             3

AND  RECOMMENDATIONS  MADE  BY SUCH REVIEW PANELS. THE ANNUAL CUMULATIVE
REPORTS MAY THEREAFTER BE MADE AVAILABLE TO THE PUBLIC.
  S  2.  Subdivision  (c)  of section 33.13 of the mental hygiene law is
amended by adding a new paragraph 15 to read as follows:
  15. TO A MENTAL HEALTH INCIDENT  REVIEW  PANEL,  OR  MEMBERS  THEREOF,
ESTABLISHED  BY THE COMMISSIONER PURSUANT TO SECTION 31.37 OF THIS CHAP-
TER, IN CONNECTION WITH INCIDENT REVIEWS CONDUCTED BY SUCH PANEL.
  S 3. Subdivision 3 of section 6527 of the education law, as amended by
chapter 257 of the laws of 1987, is amended to read as follows:
  3. No individual who serves as a member of (a) a committee established
to administer a utilization review  plan  of  a  hospital,  including  a
hospital  as defined in article twenty-eight of the public health law or
a hospital as defined in subdivision ten of section 1.03 of  the  mental
hygiene  law, or (b) a committee having the responsibility of the inves-
tigation of an incident reported pursuant to section 29.29 of the mental
hygiene law or the evaluation and improvement of  the  quality  of  care
rendered  in a hospital as defined in article twenty-eight of the public
health law or a hospital as defined in subdivision ten of  section  1.03
of  the  mental  hygiene  law,  or  (c)  any medical review committee or
subcommittee thereof of a local, county or state medical, dental, podia-
try or optometrical society, any such  society  itself,  a  professional
standards  review  organization  or  an  individual when such committee,
subcommittee, society, organization  or  individual  is  performing  any
medical or quality assurance review function including the investigation
of  an incident reported pursuant to section 29.29 of the mental hygiene
law, either described in  clauses  (a)  and  (b)  of  this  subdivision,
required  by  law, or involving any controversy or dispute between (i) a
physician, dentist, podiatrist or optometrist or hospital  administrator
and  a  patient  concerning  the  diagnosis,  treatment  or care of such
patient or the fees or charges therefor or (ii)  a  physician,  dentist,
podiatrist  or  optometrist  or hospital administrator and a provider of
medical, dental,  podiatric  or  optometrical  services  concerning  any
medical or health charges or fees of such physician, dentist, podiatrist
or  optometrist,  or (d) a committee appointed pursuant to section twen-
ty-eight hundred five-j of the public health law to participate  in  the
medical and dental malpractice prevention program, or (e) any individual
who  participated in the preparation of incident reports required by the
department of health pursuant to section twenty-eight hundred five-l  of
the  public  health  law, or (f) a committee established to administer a
utilization review plan, or a committee  having  the  responsibility  of
evaluation  and improvement of the quality of care rendered, in a health
maintenance organization  organized  under  article  forty-four  of  the
public health law or article forty-three of the insurance law, including
a  committee  of  an  individual  practice  association or medical group
acting pursuant to a contract with such a health  maintenance  organiza-
tion,  OR (G) A MENTAL HEALTH INCIDENT REVIEW PANEL CONVENED PURSUANT TO
SECTION 31.37 OF THE MENTAL HYGIENE LAW, shall be liable in  damages  to
any  person  for any action taken or recommendations made, by him OR HER
within the scope of his OR HER function in such capacity  provided  that
(a)  such individual has taken action or made recommendations within the
scope of his OR HER function and without malice, and (b) in the  reason-
able  belief  after reasonable investigation that the act or recommenda-
tion was warranted, based upon the facts disclosed.
  Neither the proceedings nor the records relating to performance  of  a
medical  or  a  quality  assurance review function or participation in a
medical  and  dental  malpractice  prevention  program  nor  any  report

S. 7252                             4

required  by  the  department of health pursuant to section twenty-eight
hundred five-l of the public health law described herein, including  the
investigation  of  an incident reported pursuant to section 29.29 of the
mental  hygiene  law OR REVIEWED PURSUANT TO SECTION 31.37 OF THE MENTAL
HYGIENE LAW, shall be subject to disclosure under article thirty-one  of
the  civil  practice  law and rules except as hereinafter provided or as
provided by any other provision of law. No person  in  attendance  at  a
meeting  when  a  medical or a quality assurance review or a medical and
dental malpractice prevention program or an incident reporting  function
described  herein was performed, including the investigation of an inci-
dent reported pursuant to section 29.29 of the mental hygiene law OR  AN
INCIDENT  REVIEWED  PURSUANT TO SECTION 31.37 OF THE MENTAL HYGIENE LAW,
shall be required to testify as to what transpired thereat. The prohibi-
tion relating to discovery of testimony shall not apply  to  the  state-
ments  made by any person in attendance at such a meeting who is a party
to an action or proceeding the subject matter of which was  reviewed  at
such meeting.
  S  4.  This  act shall take effect on the thirtieth day after it shall
have become a law.