BILL NUMBER:S3423

TITLE OF BILL:
An act
to amend the mental hygiene law, in relation to providing a mental
hygiene legal service to certain patients or residents of residential
healthcare facilities

PURPOSE OR GENERAL IDEA OF BILL:
This bill provides mental hygiene
legal services with authority to provide legal assistance to patients
or residents of residential health care facilities including nursing
homes who have been admitted directly from a psychiatric facility or
a psychiatric ward of a hospital and who have a serious mental
illness for which they are receiving services related to such illness.

SUMMARY OF SPECIFIC PROVISIONS:
Sections 1 of the bill amends section 47.01 subdivision (a) of the
mental hygiene law to include patients and residents of residential
healthcare facilities including nursing homes who have been directly
admitted from a facility licensed by the Office of Mental Health and
who have a serious mental illness and are receiving services for such
illness.

Section 2 of the bill provides for an immediate effective date.

              

JUSTIFICATION:
The NYS Court of Appeals, the State's highest court,
recently ruled that Mental Hygiene Legal Services (MHLS) lacks
jurisdiction to represent mentally ill individuals who have been
admitted to nursing homes from psychiatric centers and psychiatric
hospital wards because the Office of Mental Health does not license
the facilities. The legislature amended the law in 1993 to
significantly expand MHLS's jurisdiction to include individuals in a
range of other in and out-patient facilities without regard to the
type of facility or a person's lack of legal admission status and
avoid the need for MHLS to do battle to establish a jurisdictional
foothold. Unfortunately, by a vote of 4-3, the Court of Appeals
decided that those amendments are not sufficient to afford seriously
mentally ill individuals access of protective MHLS when in a setting
not licensed by OMH.

In the mid 1990's a practice of transferring individuals from
psychiatric centers and psychiatric wards of hospitals to specialized
units in nursing homes called neurobiological units (NBU's) where
they continued to receive intensive psychiatric treatment was begun.
These individuals were not there for traditional nursing home care. A
series of award winning articles in the New York Times focused in
part on this practice and claimed that the residents in the NBU were
being deprived their legal protection. The article claimed that the
NBU's were like being involuntarily committed to a psychiatric center
without any legal protections. MHLS began looking into the matter and
sought access to the residents and their records in order to provide
advocacy and legal representation. Nursing homes denied them access
and in June 2003, MHLS commenced a court action seeking jurisdiction
to protect the rights of these individuals.


Nursing homes have since shut down NBU's, however there continues to
be a steady flow of seriously mentally ill individuals being
transferred from OMH licensed psychiatric centers and hospital wards
to nursing homes.

Seriously mentally ill individuals deserve the same protections that
they would be afforded had they remained in the OMH licensed
facilities. They are not being discharged because they have been
cured or stabilized. If these individuals continue to require
intensive, institutional care and treatment that a nursing home
provides, they must continue to be provided with the protections that
MHLS was designed to provide. Many of these individuals have been in
nursing homes for years without legal representation waiting this
court decision. This bill will clearly put in statute MHLS' authority
to provide legal assistance to these seriously mentally ill
individuals who are alleged to be in need of care and treatment in
such restrictive settings.

PRIOR LEGISLATIVE HISTORY:
2010: A.10824-B/S.7432-A - Vetoed Memo 6811.

FISCAL IMPLICATIONS:
No new costs.

EFFECTIVE DATE:
Immediately.