senate Bill S3018

2011-2012 Legislative Session

Creates mental health incident review panels

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 04, 2012 referred to mental health and developmental disabilities
Feb 07, 2011 referred to mental health and developmental disabilities

S3018 - Bill Details

Current Committee:
Law Section:
Mental Hygiene Law
Laws Affected:
Add §31.37, amd §33.13, Ment Hyg L; amd §6527, Ed L
Versions Introduced in 2009-2010 Legislative Session:
S4902

S3018 - Bill Texts

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Creates mental health incident review panels.

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BILL NUMBER:S3018

TITLE OF BILL:
An act
to amend the mental hygiene law and the education law, in relation to
creating mental health incident review panels

PURPOSE:
This bill would authorize the Commissioner of the Office of Mental
Health to convene panels of state and local officials to review
violent incidents involving persons with mental illness

SUMMARY OF PROVISIONS:
Section 1 of the bill adds a new Mental Hygiene Law § 31.37 to give
the commissioner of the Office of Mental Health (OMH) the authority
to establish one or more mental health incident review panels to
evaluate the circumstances surrounding incidents in which a person
with serious mental illness is physically injured or causes physical
injury, or suffers a serious and preventable medical complication, or
becomes involved in a violent criminal incident. Such panels must
include state mental health and local government officials, and may
include members from law enforcement agencies. To encourage candid
assessments of systemic or other problems that led to the incident
under review, the information obtained by the review panel will be
deemed confidential. The OMH Commissioner must make an annual report
to the legislature and the Governor summarizing the findings and
recommendations made by the review panels.

Section 2 of the bill adds a new Mental Hygiene Law § 33.13(c) (15) to
allow mental health information to be disclosed to a mental health
review panel.

Section 3 of the bill amends Education Law § 6527 to provide that the
reviews conducted by the mental health incident review panels will
not be subject to disclosure and that the information received by the
panels will be protected by the statutory quality assurance privilege.

Section 4 of the bill contains the effective date.

EXISTING LAW:
A quality assurance privilege is generally recognized as an essential
mechanism allowing medical facilities to address quality concerns in
a confidential manner that will help them to sustain a culture of
quality improvement. The New York Court of Appeals has recognized
that the statutory privilege set forth in Education Law 6527, which
protects quality
assurance records of certain entities from disclosure in the context
of Civil Procedure Law and Rules discovery provisions, "promotes the
quality of care through self-review without fear of legal reprisal."
Katherine F. v. New York, 94 N.Y.2d 200, 205 (1999). Under Mental
Hygiene Law § 29.29, the OMH Commissioner must establish procedures
for review and analysis of accidents and other injuries affecting the
health and welfare of patients at a mental health facility. Such
reviews and analyses are subject to the confidentiality provisions
set forth in Education Law § 6527.


JUSTIFICATION:
This bill, which creates a statutory scheme modeled after the child
fatality reviews conducted pursuant to Social Services Law § 422-b,
allows for improved State and local response to incidents that occur
outside of a mental health facility in which persons with mental
illness are harmed or harm others, or suffer serious and preventable
medical complications, or become involved in violent criminal offenses.

First, the bill allows the OMR Commissioner to include local and state
officials with varied backgrounds on review panels, which will permit
more effective and widely-ranging evaluations of these incidents.
Impaneling members with mental health, social services and law
enforcement backgrounds will ensure that an incident review panel may
consider a wide range of perspectives when: (1) identifying systemic
and individual problems that may have contributed to a particular
incident; and (2) recommending policy or legislative changes to
prevent future occurrences and enhance public safety.

Second, the bill will ensure that incident reviews are conducted
objectively, and that the panel members and other persons with whom
the panel members consult may frankly and freely discuss and analyze
any errors or Shortcomings in the mental health and/or criminal
justice system that may have led to the incident's Occurrence. These
assurances of confidentiality will lead to both improved quality of
care for persons with mental illness and enhanced protection for the
public.

LEGISLATIVE HISTORY:
2009/10: S.4901 - Referred to Mental Health and Development
Disabilities; A.6835.
S.8710 Passed Senate in 2008

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
30 days after it shall have become law.

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

                                  3018

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 7, 2011
                               ___________

Introduced  by  Sen. HUNTLEY -- read twice and ordered printed, and when
  printed to be committed to the Committee on Mental Health and Develop-
  mental Disabilities

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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00284-01-1

S. 3018                             2

SERVICES,  HUMAN  SERVICES PROGRAMS, HOSPITALS, LOCAL SCHOOLS, EMERGENCY
MEDICAL OR MENTAL HEALTH SERVICES, THE OFFICE OF  THE  COUNTY  ATTORNEY,
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 THOSE RECORDS PROTECTED BY SECTION 190.25 OF THE CRIMINAL  PROCE-
DURE LAW.
  (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.
  (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
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:

S. 3018                             3

  15. TO A MENTAL HEALTH INCIDENT  REVIEW  PANEL,  OR  MEMBERS  THEREOF,
ESTABLISHED BY THE COMMISSIONER PURSUANT TO SECTION 31.37 OF THIS TITLE,
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
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

S. 3018                             4

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.

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