§ 31.37 Mental health incident review panels.

(a) The commissioner is authorized to establish, on his or her own
accord or pursuant to a request by a local governmental unit, a mental
health incident review panel for the purposes of reviewing in
conjunction with local representation, 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 suffers physical injury as
defined in subdivision nine of section 10.00 of the penal law or causes
such physical injury to another person, or suffers a serious and
preventable medical complication or becomes involved in a criminal
incident involving violence. A panel shall be authorized to 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
representatives from the office of mental health and the chief executive
officer or designee of 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 representatives 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, state or local police agencies, the
office of the medical examiner or the office of the coroner, the
judiciary, or other appropriate state or local officials; provided,
however, that a local law enforcement official may not serve as a member
of such a review panel if his or her office or agency is directly
involved in any ongoing investigation or prosecution of a crime under
review by the panel, or any appeal of a criminal conviction for such
crime.

(c) (i) 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 relevant client-identifiable
mental health records, as well as all records, documentation and reports
relating to the investigation of an incident by the justice center,
pursuant to article twenty of the executive law and an incident by a
facility in accordance with regulations of the commissioner, which are
necessary for the investigation of the serious incident involving a
person with mental illness and the preparation of a report of such
incident, as provided in subdivision (e) of this section. A mental
health incident review panel investigating a serious incident involving
a person with a mental illness pursuant to this section shall be
provided with access to all relevant, non-privileged records in the
possession of state or local officials or agencies, within twenty-one
days of receipt of a request, except: (A) those records protected by
section 190.25 of the criminal procedure law; (B) where providing law
enforcement records would interfere with an ongoing law enforcement
investigation or judicial proceeding, identify a confidential source or
disclose confidential information relating to an ongoing criminal
investigation, highly sensitive criminal investigative techniques or
procedures, or endanger the safety or welfare of an individual; (C) with
respect to any such record that is privileged, where the privilege is
held by the official or agency and no separate privilege held by an
individual applies, such official or agency shall be authorized to waive
such official's or agency's privilege, as applicable, and provide such
record; and (D) whenever an agency, director or unit believes pursuant
to subparagraph (B) of this paragraph that release of records would
interfere with a judicial proceeding, it shall identify that proceeding,
and the mental health incident review panel shall be authorized, upon
notice to such agency, director or unit, to request in writing to the
judge before whom such judicial proceeding is pending, that such judge
determine whether access to such records should be denied on the ground
that release of such records would interfere with the pending
proceeding. Upon receipt of such a request, the judge shall offer the
agency, director or unit and the panel a reasonable opportunity to be
heard, and may review the disputed records in camera. The judge shall
submit its determination to the agency, director or unit and the mental
health incident review panel, and the agency, director or unit shall
then proceed in accordance with the judge's determination.

(ii) In any case in which access to records is denied pursuant to this
subdivision, the appropriate agency shall inform the panel in writing of
the reasoning for such denial.

(d) Mental health incident review panels and members of the review
panels shall have immunity 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 discussions, deliberations or findings relating to the official
duties 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.

(d-1) Persons who present information to the panel shall have immunity
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 their authorized
participation at a meeting of the panel. Neither information nor records
relating to the performance of a review panel function, nor a person's
participation in a review panel shall be subject to disclosure pursuant
to article thirty-one of the civil practice law and rules. Nothing in
this section shall be construed to prevent the disclosure of, or
testimony regarding, information that exists or is obtained
independently of the panel or information that 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 for good cause shown or as set forth in subdivision (g) of
this section. Each mental health incident review panel shall develop a
report of the incident investigated. Such report shall not contain any
individually identifiable information and shall be provided to the
office of mental health upon completion. Records, reports, information
regarding testimony and other information gathered by the panel shall
not be further disseminated by a panel member.

(f) If quality problems of particular mental health programs are
identified 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
appropriate action within the scope of his or her authority.

(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
individual or entity receiving such report. Further, the commissioner
shall submit the final report of a review panel to the governor, the
temporary president of the senate and the speaker of the assembly,
consistent with federal and state confidentiality protections.

(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 and, to the extent
practicable, any recommendations that have been implemented, including
recommendations from prior year reports, and the impact of such
implementations. The annual cumulative reports shall thereafter be made
available to the public consistent with federal and state
confidentiality protections.