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This entry was published on 2022-04-22
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SECTION 9.60
Assisted outpatient treatment
Mental Hygiene (MHY) CHAPTER 27, TITLE B, ARTICLE 9
* § 9.60 Assisted outpatient treatment.

(a) Definitions. For purposes of this section, the following
definitions shall apply:

(1) "assisted outpatient treatment" shall mean categories of
outpatient services which have been ordered by the court pursuant to
this section. Such treatment shall include case management services or
assertive community treatment team services to provide care
coordination, and may also include any of the following categories of
services: medication; periodic blood tests or urinalysis to determine
compliance with prescribed medications; individual or group therapy; day
or partial day programming activities; educational and vocational
training or activities; alcohol or substance abuse treatment and
counseling and periodic tests for the presence of alcohol or illegal
drugs for persons with a history of alcohol or substance abuse;
supervision of living arrangements; and any other services within a
local services plan developed pursuant to article forty-one of this
chapter, prescribed to treat the person's mental illness and to assist
the person in living and functioning in the community, or to attempt to
prevent a relapse or deterioration that may reasonably be predicted to
result in suicide or the need for hospitalization.

(2) "director" shall mean the director of community services of a
local governmental unit, or the director of a hospital licensed or
operated by the office of mental health which operates, directs and
supervises an assisted outpatient treatment program.

(3) "director of community services" and "local governmental unit"
shall have the same meanings as provided in article forty-one of this
chapter. The "appropriate director" shall mean the director of community
services of the county where the assisted outpatient resides, even if it
is a different county than the county where the assisted outpatient
treatment order was originally issued.

(4) "assisted outpatient treatment program" shall mean a system to
arrange for and coordinate the provision of assisted outpatient
treatment, to monitor treatment compliance by assisted outpatients, to
evaluate the condition or needs of assisted outpatients, to take
appropriate steps to address the needs of such individuals, and to
ensure compliance with court orders.

(5) "assisted outpatient" shall mean the person under a court order to
receive assisted outpatient treatment.

(6) "subject of the petition" or "subject" shall mean the person who
is alleged in a petition, filed pursuant to the provisions of this
section, to meet the criteria for assisted outpatient treatment.

(7) "correctional facility" and "local correctional facility" shall
have the same meanings as provided in section two of the correction law.

(8) "health care proxy" and "health care agent" shall have the same
meanings as provided in article twenty-nine-C of the public health law.

(9) "program coordinator" shall mean an individual appointed by the
commissioner of mental health, pursuant to subdivision (f) of section
7.17 of this chapter, who is responsible for the oversight and
monitoring of assisted outpatient treatment programs.

(b) Programs. The director of community services of each local
governmental unit shall operate, direct and supervise an assisted
outpatient treatment program. The director of a hospital licensed or
operated by the office of mental health may operate, direct and
supervise an assisted outpatient treatment program, upon approval by the
commissioner. Directors of community services shall be permitted to
satisfy the provisions of this subdivision through the operation of
joint assisted outpatient treatment programs. Nothing in this
subdivision shall be interpreted to preclude the combination or
coordination of efforts between and among local governmental units and
hospitals in providing and coordinating assisted outpatient treatment.

(c) Criteria. A person may be ordered to receive assisted outpatient
treatment if the court finds that such person:

(1) is eighteen years of age or older; and

(2) is suffering from a mental illness; and

(3) is unlikely to survive safely in the community without
supervision, based on a clinical determination; and

(4) has a history of lack of compliance with treatment for mental
illness that has:

(i) except as otherwise provided in subparagraph (iii) of this
paragraph, prior to the filing of the petition, at least twice within
the last thirty-six months been a significant factor in necessitating
hospitalization in a hospital, or receipt of services in a forensic or
other mental health unit of a correctional facility or a local
correctional facility, not including any current period, or period
ending within the last six months, during which the person was or is
hospitalized or incarcerated; or

(ii) except as otherwise provided in subparagraph (iii) of this
paragraph, prior to the filing of the petition, resulted in one or more
acts of serious violent behavior toward self or others or threats of, or
attempts at, serious physical harm to self or others within the last
forty-eight months, not including any current period, or period ending
within the last six months, in which the person was or is hospitalized
or incarcerated; or

(iii) notwithstanding subparagraphs (i) and (ii) of this paragraph,
resulted in the issuance of a court order for assisted outpatient
treatment which has expired within the last six months, and since the
expiration of the order, the person has experienced a substantial
increase in symptoms of mental illness and such symptoms substantially
interferes with or limits one or more major life activities as
determined by a director of community services who previously was
required to coordinate and monitor the care of any individual who was
subject to such expired assisted outpatient treatment order. The
applicable director of community services or their designee shall
arrange for the individual to be evaluated by a physician. If the
physician determines court ordered services are clinically necessary and
the least restrictive option, the director of community services may
initiate a court proceeding.

(5) is, as a result of his or her mental illness, unlikely to
voluntarily participate in outpatient treatment that would enable him or
her to live safely in the community; and

(6) in view of his or her treatment history and current behavior, is
in need of assisted outpatient treatment in order to prevent a relapse
or deterioration which would be likely to result in serious harm to the
person or others as defined in section 9.01 of this article; and

(7) is likely to benefit from assisted outpatient treatment.

(d) Health care proxy. Nothing in this section shall preclude a person
with a health care proxy from being subject to a petition pursuant to
this chapter and consistent with article twenty-nine-C of the public
health law.

(e) Petition to the court. (1) A petition for an order authorizing
assisted outpatient treatment may be filed in the supreme or county
court in the county in which the subject of the petition is present or
reasonably believed to be present. Such petition may be initiated only
by the following persons:

(i) any person eighteen years of age or older with whom the subject of
the petition resides; or

(ii) the parent, spouse, sibling eighteen years of age or older, or
child eighteen years of age or older of the subject of the petition; or

(iii) the director of a hospital in which the subject of the petition
is hospitalized; or

(iv) the director of any public or charitable organization, agency or
home providing mental health services to the subject of the petition or
in whose institution the subject of the petition resides; or

(v) a qualified psychiatrist who is either supervising the treatment
of or treating the subject of the petition for a mental illness; or

(vi) a psychologist, licensed pursuant to article one hundred
fifty-three of the education law, or a social worker, licensed pursuant
to article one hundred fifty-four of the education law, who is treating
the subject of the petition for a mental illness; or

(vii) the director of community services, or his or her designee, or
the social services official, as defined in the social services law, of
the city or county in which the subject of the petition is present or
reasonably believed to be present; or

(viii) a parole officer or probation officer assigned to supervise the
subject of the petition.

(2) The petition shall state:

(i) each of the criteria for assisted outpatient treatment as set
forth in subdivision (c) of this section;

(ii) facts which support the petitioner's belief that the subject of
the petition meets each criterion, provided that the hearing on the
petition need not be limited to the stated facts; and

(iii) that the subject of the petition is present, or is reasonably
believed to be present, within the county where such petition is filed.

(3) The petition shall be accompanied by an affirmation or affidavit
of a physician, who shall not be the petitioner, stating either that:

(i) such physician has personally examined the subject of the petition
no more than ten days prior to the submission of the petition,
recommends assisted outpatient treatment for the subject of the
petition, and is willing and able to testify at the hearing on the
petition; or

(ii) no more than ten days prior to the filing of the petition, such
physician or his or her designee has made appropriate attempts but has
not been successful in eliciting the cooperation of the subject of the
petition to submit to an examination, such physician has reason to
suspect that the subject of the petition meets the criteria for assisted
outpatient treatment, and such physician is willing and able to examine
the subject of the petition and testify at the hearing on the petition.

(4) In counties with a population of less than eighty thousand, the
affirmation or affidavit required by paragraph three of this subdivision
may be made by a physician who is an employee of the office. The office
is authorized to make available, at no cost to the county, a qualified
physician for the purpose of making such affirmation or affidavit
consistent with the provisions of such paragraph.

(f) Service. The petitioner shall cause written notice of the petition
to be given to the subject of the petition and a copy thereof to be
given personally or by mail to the persons listed in section 9.29 of
this article, the mental hygiene legal service, the health care agent if
any such agent is known to the petitioner, the appropriate program
coordinator, and the appropriate director of community services, if such
director is not the petitioner.

(g) Right to counsel. The subject of the petition shall have the right
to be represented by the mental hygiene legal service, or privately
financed counsel, at all stages of a proceeding commenced under this
section.

(h) Hearing. (1) Upon receipt of the petition, the court shall fix the
date for a hearing. Such date shall be no later than three days from the
date such petition is received by the court, excluding Saturdays,
Sundays and holidays. Adjournments shall be permitted only for good
cause shown. In granting adjournments, the court shall consider the need
for further examination by a physician or the potential need to provide
assisted outpatient treatment expeditiously. The court shall cause the
subject of the petition, any other person receiving notice pursuant to
subdivision (f) of this section, the petitioner, the physician whose
affirmation or affidavit accompanied the petition, and such other
persons as the court may determine to be advised of such date. Upon such
date, or upon such other date to which the proceeding may be adjourned,
the court shall hear testimony and, if it be deemed advisable and the
subject of the petition is available, examine the subject of the
petition in or out of court. If the subject of the petition does not
appear at the hearing, and appropriate attempts to elicit the attendance
of the subject have failed, the court may conduct the hearing in the
subject's absence. In such case, the court shall set forth the factual
basis for conducting the hearing without the presence of the subject of
the petition.

(2) The court shall not order assisted outpatient treatment unless an
examining physician, who recommends assisted outpatient treatment and
has personally examined the subject of the petition no more than ten
days before the filing of the petition, testifies in person or by
videoconference at the hearing. Provided however, a physician shall only
be authorized to testify by video conference when it has been: (i) shown
that diligent efforts have been made to attend such hearing in person
and the subject of the petition consents to the physician testifying by
video conference; or (ii) the court orders the physician to testify by
video conference upon a finding of good cause. Such physician shall
state the facts and clinical determinations which support the allegation
that the subject of the petition meets each of the criteria for assisted
outpatient treatment.

(3) If the subject of the petition has refused to be examined by a
physician, the court may request the subject to consent to an
examination by a physician appointed by the court. If the subject of the
petition does not consent and the court finds reasonable cause to
believe that the allegations in the petition are true, the court may
order peace officers, acting pursuant to their special duties, or police
officers who are members of an authorized police department or force, or
of a sheriff's department to take the subject of the petition into
custody and transport him or her to a hospital for examination by a
physician. Retention of the subject of the petition under such order
shall not exceed twenty-four hours. The examination of the subject of
the petition may be performed by the physician whose affirmation or
affidavit accompanied the petition pursuant to paragraph three of
subdivision (e) of this section, if such physician is privileged by such
hospital or otherwise authorized by such hospital to do so. If such
examination is performed by another physician, the examining physician
may consult with the physician whose affirmation or affidavit
accompanied the petition as to whether the subject meets the criteria
for assisted outpatient treatment.

(4) A physician who testifies pursuant to paragraph two of this
subdivision shall state: (i) the facts which support the allegation that
the subject meets each of the criteria for assisted outpatient
treatment, (ii) that the treatment is the least restrictive alternative,
(iii) the recommended assisted outpatient treatment, and (iv) the
rationale for the recommended assisted outpatient treatment. If the
recommended assisted outpatient treatment includes medication, such
physician's testimony shall describe the types or classes of medication
which should be authorized, shall describe the beneficial and
detrimental physical and mental effects of such medication, and shall
recommend whether such medication should be self-administered or
administered by authorized personnel.

(5) The subject of the petition shall be afforded an opportunity to
present evidence, to call witnesses on his or her behalf, and to
cross-examine adverse witnesses.

(i) Written treatment plan. (1) The court shall not order assisted
outpatient treatment unless a physician appointed by the appropriate
director, in consultation with such director, develops and provides to
the court a proposed written treatment plan. The written treatment plan
shall include case management services or assertive community treatment
team services to provide care coordination. The written treatment plan
also shall include all categories of services, as set forth in paragraph
one of subdivision (a) of this section, which such physician recommends
that the subject of the petition receive. All service providers shall be
notified regarding their inclusion in the written treatment plan. If the
written treatment plan includes medication, it shall state whether such
medication should be self-administered or administered by authorized
personnel, and shall specify type and dosage range of medication most
likely to provide maximum benefit for the subject. If the written
treatment plan includes alcohol or substance abuse counseling and
treatment, such plan may include a provision requiring relevant testing
for either alcohol or illegal substances provided the physician's
clinical basis for recommending such plan provides sufficient facts for
the court to find (i) that such person has a history of alcohol or
substance abuse that is clinically related to the mental illness; and
(ii) that such testing is necessary to prevent a relapse or
deterioration which would be likely to result in serious harm to the
person or others. If a director is the petitioner, the written treatment
plan shall be provided to the court no later than the date of the
hearing on the petition. If a person other than a director is the
petitioner, such plan shall be provided to the court no later than the
date set by the court pursuant to paragraph three of subdivision (j) of
this section.

(2) The physician appointed to develop the written treatment plan
shall provide the following persons with an opportunity to actively
participate in the development of such plan: the subject of the
petition; the treating physician, if any; and upon the request of the
subject of the petition, an individual significant to the subject
including any relative, close friend or individual otherwise concerned
with the welfare of the subject. If the subject of the petition has
executed a health care proxy, the appointed physician shall consider any
directions included in such proxy in developing the written treatment
plan.

(3) The court shall not order assisted outpatient treatment unless a
physician appearing on behalf of a director testifies to explain the
written proposed treatment plan. Such physician shall state the
categories of assisted outpatient treatment recommended, the rationale
for each such category, facts which establish that such treatment is the
least restrictive alternative, and, if the recommended assisted
outpatient treatment plan includes medication, such physician shall
state the types or classes of medication recommended, the beneficial and
detrimental physical and mental effects of such medication, and whether
such medication should be self-administered or administered by an
authorized professional. If the subject of the petition has executed a
health care proxy, such physician shall state the consideration given to
any directions included in such proxy in developing the written
treatment plan. If a director is the petitioner, testimony pursuant to
this paragraph shall be given at the hearing on the petition. If a
person other than a director is the petitioner, such testimony shall be
given on the date set by the court pursuant to paragraph three of
subdivision (j) of this section.

(j) Disposition. (1) If after hearing all relevant evidence, the court
does not find by clear and convincing evidence that the subject of the
petition meets the criteria for assisted outpatient treatment, the court
shall dismiss the petition.

(2) If after hearing all relevant evidence, the court finds by clear
and convincing evidence that the subject of the petition meets the
criteria for assisted outpatient treatment, and there is no appropriate
and feasible less restrictive alternative, the court may order the
subject to receive assisted outpatient treatment for an initial period
not to exceed one year. In fashioning the order, the court shall
specifically make findings by clear and convincing evidence that the
proposed treatment is the least restrictive treatment appropriate and
feasible for the subject. The order shall state an assisted outpatient
treatment plan, which shall include all categories of assisted
outpatient treatment, as set forth in paragraph one of subdivision (a)
of this section, which the assisted outpatient is to receive, but shall
not include any such category that has not been recommended in both the
proposed written treatment plan and the testimony provided to the court
pursuant to subdivision (i) of this section.

(3) If after hearing all relevant evidence presented by a petitioner
who is not a director, the court finds by clear and convincing evidence
that the subject of the petition meets the criteria for assisted
outpatient treatment, and the court has yet to be provided with a
written proposed treatment plan and testimony pursuant to subdivision
(i) of this section, the court shall order the appropriate director to
provide the court with such plan and testimony no later than the third
day, excluding Saturdays, Sundays and holidays, immediately following
the date of such order. Upon receiving such plan and testimony, the
court may order assisted outpatient treatment as provided in paragraph
two of this subdivision.

(4) A court may order the patient to self-administer psychotropic
drugs or accept the administration of such drugs by authorized personnel
as part of an assisted outpatient treatment program. Such order may
specify the type and dosage range of such psychotropic drugs and such
order shall be effective for the duration of such assisted outpatient
treatment.

(5) If the petitioner is the director of a hospital that operates an
assisted outpatient treatment program, the court order shall direct the
hospital director to provide or arrange for all categories of assisted
outpatient treatment for the assisted outpatient throughout the period
of the order. In all other instances, the order shall require the
appropriate director, as that term is defined in this section, to
provide or arrange for all categories of assisted outpatient treatment
for the assisted outpatient throughout the period of the order.

(6) The director shall cause a copy of any court order issued pursuant
to this section to be served personally, or by mail, facsimile or
electronic means, upon the assisted outpatient, the mental hygiene legal
service or anyone acting on the assisted outpatient's behalf, the
original petitioner, identified service providers, and all others
entitled to notice under subdivision (f) of this section.

(k) Petition for additional periods of treatment. (1) Prior to the
expiration of an order pursuant to this section, the appropriate
director shall review whether the assisted outpatient continues to meet
the criteria for assisted outpatient treatment. If, as documented in the
petition, the director determines that such criteria continue to be met
or has made appropriate attempts to, but has not been successful in
eliciting, the cooperation of the subject to submit to an examination,
within thirty days prior to the expiration of an order of assisted
outpatient treatment, such director may petition the court to order
continued assisted outpatient treatment pursuant to paragraph two of
this subdivision. Upon determining whether such criteria continue to be
met, such director shall notify the program coordinator in writing as to
whether a petition for continued assisted outpatient treatment is
warranted and whether such a petition was or will be filed.

(2) Within thirty days prior to the expiration of an order of assisted
outpatient treatment, the appropriate director or the current
petitioner, if the current petition was filed pursuant to subparagraph
(i) or (ii) of paragraph one of subdivision (e) of this section, and the
current petitioner retains his or her original status pursuant to the
applicable subparagraph, may petition the court to order continued
assisted outpatient treatment for a period not to exceed one year from
the expiration date of the current order. If the court's disposition of
such petition does not occur prior to the expiration date of the current
order, the current order shall remain in effect until such disposition.
The procedures for obtaining any order pursuant to this subdivision
shall be in accordance with the provisions of the foregoing subdivisions
of this section; provided that the time restrictions included in
paragraph four of subdivision (c) of this section shall not be
applicable. The notice provisions set forth in paragraph six of
subdivision (j) of this section shall be applicable. Any court order
requiring periodic blood tests or urinalysis for the presence of alcohol
or illegal drugs shall be subject to review after six months by the
physician who developed the written treatment plan or another physician
designated by the director, and such physician shall be authorized to
terminate such blood tests or urinalysis without further action by the
court.

(l) Petition for an order to stay, vacate or modify. (1) In addition
to any other right or remedy available by law with respect to the order
for assisted outpatient treatment, the assisted outpatient, the mental
hygiene legal service, or anyone acting on the assisted outpatient's
behalf may petition the court on notice to the director, the original
petitioner, and all others entitled to notice under subdivision (f) of
this section to stay, vacate or modify the order.

(2) The appropriate director shall petition the court for approval
before instituting a proposed material change in the assisted outpatient
treatment plan, unless such change is authorized by the order of the
court. Such petition shall be filed on notice to all parties entitled to
notice under subdivision (f) of this section. Not later than five days
after receiving such petition, excluding Saturdays, Sundays and
holidays, the court shall hold a hearing on the petition; provided that
if the assisted outpatient informs the court that he or she agrees to
the proposed material change, the court may approve such change without
a hearing. Non-material changes may be instituted by the director
without court approval. For the purposes of this paragraph, a material
change is an addition or deletion of a category of services to or from a
current assisted outpatient treatment plan, or any deviation without the
assisted outpatient's consent from the terms of a current order relating
to the administration of psychotropic drugs.

(m) Appeals. Review of an order issued pursuant to this section shall
be had in like manner as specified in section 9.35 of this article.

(n) Failure to comply with assisted outpatient treatment. Where in the
clinical judgment of a physician, (i) the assisted outpatient, has
failed or refused to comply with the assisted outpatient treatment, (ii)
efforts were made to solicit compliance, and (iii) such assisted
outpatient may be in need of involuntary admission to a hospital
pursuant to section 9.27 of this article or immediate observation, care
and treatment pursuant to section 9.39 or 9.40 of this article, such
physician may request the appropriate director of community services,
the director's designee, or any physician designated by the director of
community services pursuant to section 9.37 of this article, to direct
the removal of such assisted outpatient to an appropriate hospital for
an examination to determine if such person has a mental illness for
which hospitalization is necessary pursuant to section 9.27, 9.39 or
9.40 of this article. Furthermore, if such assisted outpatient refuses
to take medications as required by the court order, or he or she refuses
to take, or fails a blood test, urinalysis, or alcohol or drug test as
required by the court order, such physician may consider such refusal or
failure when determining whether the assisted outpatient is in need of
an examination to determine whether he or she has a mental illness for
which hospitalization is necessary. Upon the request of such physician,
the appropriate director, the director's designee, or any physician
designated pursuant to section 9.37 of this article, may direct peace
officers, acting pursuant to their special duties, or police officers
who are members of an authorized police department or force or of a
sheriff's department to take the assisted outpatient into custody and
transport him or her to the hospital operating the assisted outpatient
treatment program or to any hospital authorized by the director of
community services to receive such persons. Such law enforcement
officials shall carry out such directive. Upon the request of such
physician, the appropriate director, the director's designee, or any
physician designated pursuant to section 9.37 of this article, an
ambulance service, as defined by subdivision two of section three
thousand one of the public health law, or an approved mobile crisis
outreach team as defined in section 9.58 of this article shall be
authorized to take into custody and transport any such person to the
hospital operating the assisted outpatient treatment program, or to any
other hospital authorized by the appropriate director of community
services to receive such persons. Any director of community services, or
designee, shall be authorized to direct the removal of an assisted
outpatient who is present in his or her county to an appropriate
hospital, in accordance with the provisions of this subdivision, based
upon a determination of the appropriate director of community services
directing the removal of such assisted outpatient pursuant to this
subdivision. Such person may be retained for observation, care and
treatment and further examination in the hospital for up to seventy-two
hours to permit a physician to determine whether such person has a
mental illness and is in need of involuntary care and treatment in a
hospital pursuant to the provisions of this article. Any continued
involuntary retention in such hospital beyond the initial seventy-two
hour period shall be in accordance with the provisions of this article
relating to the involuntary admission and retention of a person. If at
any time during the seventy-two hour period the person is determined not
to meet the involuntary admission and retention provisions of this
article, and does not agree to stay in the hospital as a voluntary or
informal patient, he or she must be released. Failure to comply with an
order of assisted outpatient treatment shall not be grounds for
involuntary civil commitment or a finding of contempt of court.

(o) Effect of determination that a person is in need of assisted
outpatient treatment. The determination by a court that a person is in
need of assisted outpatient treatment shall not be construed as or
deemed to be a determination that such person is incapacitated pursuant
to article eighty-one of this chapter.

(p) False petition. A person making a false statement or providing
false information or false testimony in a petition or hearing under this
section shall be subject to criminal prosecution pursuant to article one
hundred seventy-five or article two hundred ten of the penal law.

(q) Exception. Nothing in this section shall be construed to affect
the ability of the director of a hospital to receive, admit, or retain
patients who otherwise meet the provisions of this article regarding
receipt, retention or admission.

(r) Education and training. (1) The office of mental health, in
consultation with the office of court administration, shall prepare
educational and training materials on the use of this section, which
shall be made available to local governmental units, providers of
services, judges, court personnel, law enforcement officials and the
general public.

(2) The office, in consultation with the office of court
administration, shall establish a mental health training program for
supreme and county court judges and court personnel. Such training shall
focus on the use of this section and generally address issues relating
to mental illness and mental health treatment.

(s) A director of community services or his or her designee may
require a provider of inpatient psychiatric services operated or
licensed by the office of mental health to provide contemporaneous
information, including but not limited to relevant clinical records,
documents, and other information concerning the person receiving
assisted outpatient treatment pursuant to an active assisted outpatient
treatment order, that is deemed necessary by such director or designee
who is required to coordinate and monitor the care of any individual who
was subject to an active assisted outpatient treatment order to appro-
priately discharge their duties pursuant to section 9.47 of this
article, and where such provider of inpatient psychiatric services is
required to disclose such information pursuant to paragraph twelve of
subdivision (c) of section 33.13 of this chapter and such disclosure is
in accordance with all other applicable state and federal
confidentiality laws. None of the records or information obtained by the
director of community services pursuant to this subdivision shall be
public records, and the records shall not be released by the director to
any person or agency, except as already authorized by law.

* NB Repealed June 30, 2027