An Explanation of Kendra’s Law
Revised May 2006
In 1999, New York State Enacted Legislation that provides for assisted outpatient treatment for certain people with mental illness who, in view of their treatment history and present circumstances, are unlikely to survive safely in the community without supervision. This law is commonly referred to as “Kendra’s Law” and is set forth in §9.60 of the Mental Hygiene Law (MHL). It was named after Kendra Webdale, a young woman who died in January 1999 after being pushed in front of a New York City subway train by a person who was living in the community at the time, but was not receiving treatment for his mental illness. In 2005, the law was renewed with several changes, which are noted in this article.
Overview of Assisted Outpatient Treatment
Kendra’s Law establishes a procedure for obtaining court orders for certain individuals with mental illness to receive and accept outpatient treatment. The prescribed treatment is set forth in a written treatment plan prepared by a physician who has examined the individual. The procedure involves a hearing in which all the evidence, including testimony from the physician, and, if desired, from the person alleged to need treatment, is presented to the court. If the court determines that the individual meets the criteria for assisted outpatient treatment (“AOT”), an order is issued to the director of community services (DCS) who oversees the mental health program of a locality (i.e., the county or the City of New York mental health director). The court orders will require the director to provide or arrange for those services described in the written treatment plan that the court finds necessary. The initial order is effective for up to 6 months and can be extended for successive periods of up to one year. The legislation also establishes a procedure for evaluation in cases where the individual fails to comply with the ordered treatment and may pose a risk of harm.
This legislation also requires the Office of Mental Health to designate “program coordinators” who are responsible for monitoring and overseeing AOT programs. County directors of community services are required to operate AOT programs, either separately or jointly with other counties. The directors of local assisted outpatient treatment programs report to the program coordinators regarding the operation of their AOT programs and also supply the program coordinators with information on every assisted outpatient treatment order. The Commissioner of Mental Health must approve all AOT programs.
The process for issuance of assisted outpatient treatment orders begins with the filing of a petition in the supreme or county court where the person alleged to be mentally ill and in need of AOT is present (or is believed to be present). The following may act as petitioners:
- An adult (18 years or older) roommate of the person;
- A parent, spouse, adult child or adult sibling of the person;
- The director of a hospital where the person is hospitalized;
- The director of a public or charitable organization, agency or home that provides mental health services to the person or in whose institution the person resides;
- A qualified psychiatrist who is either treating the person or supervising the treatment of the person for mental illness;
- A licensed psychologist or licensed social worker who is treating the person for mental illness;
- The director of community services, or social services official of the city or county where the person is present or is reasonably believed to be present; or
- A parole officer or probation officer assigned to supervise the person.
The petition must allege that the subject of the petition meets the criteria for AOT and must be supported by a sworn statement of a physician who has examined the person within the last ten days attesting to the need for AOT. The required physician’s affidavit may state in the alternative that unsuccessful attempts were made in the past ten days to obtain the consent of the person for an examination, and that the physician believes AOT is warranted. In the latter case, the court may request the person to consent to examination. If the person refuses and the court finds reasonable cause to believe the allegations in the petition are true, the court may order peace officers or police officers to take the person into custody for transport to a hospital for examination by a physician. Any such retention shall not exceed twenty–four hours.
Service of the Notice and Petition
Notice of the petition must be served on a number of people or entities, including the person, his or her nearest relative, the Mental Hygiene Legal Services (“MHLS”), the AOT program coordinator appointed by OMH, any health care agent appointed in a proxy executed by the person, and the appropriate county AOT program director.
No person may be placed under an AOT order unless the court finds by clear and convincing evidence that the subject of the petition meets all of the following criteria:
- Is at least 18 years old; and
- Is suffering from a mental illness; and
- Is unlikely to survive safely in the community without supervision, based on a clinical determination; and
- Has a history of lack of compliance with treatment for mental illness that has:
- 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
- prior to the filing of the petition, resulted in one of 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; and
- is, as a result of his or her mental illness, unlikely to voluntarily participate in the outpatient treatment that would enable him or her to live safely in the community; and
- 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 §9.01 of this article; and
- is likely to benefit from assisted outpatient treatment.
A court may not issue an AOT order unless it finds that assisted outpatient treatment is the least restrictive alternative available for the person.
Written Treatment Plan
An examining physician appointed by the county director of community services (DCS) prepares the treatment plan submitted to the court. The examining physician must permit the person, his or her treating physician, and, if requested by the person, a relative, close friend or other concerned individual to actively participate in the development of the treatment plan. The treatment plan must include case management or assertive community treatment (“ACT”) team services to provide care coordination. It will also set forth the other categories of services recommended by the examining physician. If the plan includes alcohol or substance abuse counseling, then it may include a provision for relevant testing for alcohol or illegal substances. Such testing may be recommended only if the physician’s clinical basis for the recommendation shows facts sufficient for the court to find that (1) the person has a history of alcohol or substance abuse that is clinically related to his or her mental illness, and (2) testing is necessary to prevent a relapse or deterioration which would likely result in serious harm to the person or others.
A physician (not necessarily the same one who testifies regarding the satisfaction of the AOT criteria) must also explain the treatment plan in testimony to the court demonstrating that the proposed treatment is the least restrictive alternative. If the treatment plan includes a recommendation for medication, the testimony must include the types or classes of medication recommended, the beneficial and detrimental physical and mental effects of the medication, and whether the medication should be self–administered or administered by authorized professionals.
The Court Hearing
Upon receipt of the petition, the court is required to set a hearing date that is no more than 3 days later, although adjournments can be granted for good cause. The examining physician must testify at the hearing and must state the facts and rationale supporting the need for AOT as well as the conclusion that such treatment is the least restrictive alternative. The subject of the petition has the right to legal representation by Mental Hygiene Legal Services (MHLS), or by other counsel at the subject’s expense, at all stages of the proceeding. The person may also testify (but is not required to do so), and he or she may call witnesses and examine any adverse witnesses. A proposed written treatment plan must be furnished to the court before an order for AOT will be issued. If the petitioner is the director of community services operating an AOT program, the treatment plan is required by the court by the date of the hearing. If the subject of the petition has previously refused to be examined, the court may order officers to take the person into custody for transport to a hospital for examination.
Disposition of the Proceeding
If the court concludes that all the criteria for AOT are not met, the petition must be dismissed. If, however, the court finds by clear and convincing evidence that the subject of the petition meets the criteria and a written treatment plan has been filed, the court may order the subject to receive assisted outpatient treatment. If the treatment plan and testimony explaining it have not been provided to the court by the time of such a finding, the court will issue and order to the appropriate director of community services to provide the written treatment plan and testimony within three business days.
The initial assisted outpatient treatment order may extend for a period of up to six months. The order must specifically state findings that the proposed treatment is the least restrictive treatment that is appropriate and feasible, and must state the categories of treatment required. No treatment may be ordered unless the examining physician recommends it and it is included in the written treatment plan. The order must also require the appropriate director of community services to provide or arrange for the services described in the order.
The initial order can be extended for additional successive periods of up to one year. The same procedure used to commence the initial proceeding is used to secure an order for extension. Appeals of AOT orders are taken in the same manner as specified in MHL §9.35 relating to retention orders.
Failure to Comply with AOT Order
If in the clinical judgment of a physician the assisted outpatient has failed or refused to comply with the treatment ordered by the court and may be in need of involuntary admission to a hospital, the physician may request the director of community services, his/her designee, or other physician designated under §9.37 of the MHL to arrange for the transport of the person to a hospital. If requested, peace officers or police officers must take the individual into custody and transport him/her to the hospital. Ambulance services and OMH–approved mobile crisis outreach teams are authorized but cannot be directed to provide such transport. The individual may be held at the hospital for up to 72 hours for care, observation, and treatment and to permit a physician to determine whether involuntary admission under the standards set forth in Article 9 of the MHL is warranted. At any point during the 72 hours, should a determination be made that the individual does not meet involuntary admission criteria, that individual must be released.
Other Provisions of Kendra’s Law
Medication Grant Program
Note: It is important to mention that the population targeted by this medication grant program may be quite different from the group of individuals who potentially qualify for assisted outpatient treatment. While there will likely be some overlap, the eligibility requirements for individuals under the grant program are substantially different from the eligibility criteria for assisted outpatient treatment under §9.60(c) of the MHL.
Kendra’s Law also addresses the need to ensure that people with mental illness who are transitioning from hospitals or correctional facilities to the community receive necessary psychiatric medications without interruption. To this end, the legislation establishes a grant program administered by OMH (effective April 1, 2000) that provides funding to localities for medications to treat mental illness, and the services necessary to prescribe and administer such medications, during the period that an individual’s eligibility for medical assistance is being determined. Grants may be used to provide medications and such related services to individuals for whom the process of applying for medical assistance has commenced within one week after discharge or release, and who have either:
- been discharged from a hospital as defined in §1.03 of the MHL; or
- been released from a correctional facility or local correctional facility and have received services from or in a forensic or similar mental health unit of such a facility.
The grants available under the legislation are subject to the approval of the State Commissioner of Mental Health based on a plan by the locality explaining:
- the process for improving the timeliness of filing medical assistance applications for the individuals who will receive such medications;
- the process by which such medications will be made available at or near the time of release or discharge;
- the process by which these individuals will be referred to a city or county provider of medications or to a provider under contract with a locality to supply such medications; and
- the process by which the Office of Mental Health will be provided information necessary to file medical assistance claims.
The program will also provide grants to assist localities in the development of the plans required by the Commissioner of Mental Health. The grants may also assist in the preparation of plans to be used at local correctional facilities to improve coordination between individuals for whom the medications are targeted and providers of the medications, as well as to help such individuals in applying for medical assistance and other public benefits.
Termination of Conditional Release
The legislation also amends §29.15 of the Mental Hygiene Law regarding the termination of conditional release for involuntary patients who leave State–operated psychiatric centers. Conditional release may be used for these individuals as a means of ending the inpatient period of service to them without ending the State facility’s ties to the person under the MHL. The “conditions” usually involve the facility providing or arranging for services on an outpatient bases and the person agreeing to accept such services.
If a director of an OMH inpatient facility determines that conditional release is no longer appropriate, and a physician on the staff of the hospital determines that the conditionally released individual may have a mental illness and may be in need of involuntary hospitalization, the director may require the person to be retained for observation, care and treatment at a hospital for up to 72 hours. Any continued retention beyond this initial period will be in accordance with the provisions of the Mental Hygiene Law relating to voluntary or involuntary admissions.
This legislation also provides that clinical information regarding individuals shall be available to mental health facilities throughout the State. Kendra’s Law amends §33.13 of the Mental Hygiene Law, the confidentiality provision, to clarify that OMH–licensed and OMH–operated facilities may share confidential patient information (but only information that is necessary in light of the reason for disclosure). Furthermore, county directors of community services (DCS) shall, upon request, have access to otherwise confidential information that (s)he needs to perform the function, powers and duties related to the AOT program.
Additionally, upon prior approval of the Commissioner of OMH, general hospital emergency room services are permitted to share patient information with other hospital emergency room services, as well as with hospitals licensed or operated by OMH.
Planning for AOT Programs and High–Need Patients
Kendra’s Law also requires each local governmental unit, as part of its local or unified services plan, to plan for the provision of services to individuals who may be included in an AOT program administered, supervised or operated by the locality. Furthermore, each local governmental unit is required under this legislation to plan for the provision of mental health services to “high–need patients” as that term is defined by the Commissioner of Mental Health.