Senate Bill S801

                                BILL NUMBER:S801

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 in order to 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 (NEU'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 NBD were being
deprived their legal protection. The article claimed that the NED'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 NED'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:
2011-12: S.3423A/A.126A - Passed Assembly; Reported to Finance
2010:    A.10824-B/S.7432-A - Vetoed Memo 6811

FISCAL IMPLICATIONS:
No new costs.

EFFECTIVE DATE:
Immediately.