December 15, 2005

Honorable Sheldon Silver
Speaker of the Assembly
Legislative Office Building, Room 932
Albany, New York 12248

Dear Speaker Silver:

I am pleased to submit to you the 2005 Annual Report of the Assembly Committee on Mental Health, Mental Retardation and Developmental Disabilities.

The Committee worked diligently during this session to ensure that persons with disabilities are provided with appropriate care and treatment that is focused on individualized needs and is, whenever possible, provided in the community. The Committee achieved several legislative successes this year and engaged in numerous public dialogues focused on improving various aspects of the State’s delivery of mental hygiene services.

After five years of implementation, the provisions of New York’s Assisted Outpatient Treatment program were set to expire during the 2005 session. Prior to reauthorizing the provisions, commonly referred to as Kendra’s Law, the Committee held a series of public hearings across the State to obtain public input regarding the program’s effectiveness and the need for any changes. The feedback obtained at these hearings formed the basis for the Assembly’s legislative position as we successfully secured many of the improvements we sought and the reauthorization of the program for an additional five years.

Additionally, the Committee continued its work with the Mental Hygiene Task Force, a body formed by the Committee in November 2003 to make recommendations on restructuring the mental hygiene service delivery system. The Task Force included over fifty members representing consumers, families, advocates, service providers, labor organizations, and local government officials who each continued to contribute to the Task Force through the early part of 2005. In February 2005, the Task Force issued to the Committee a report titled, An Evaluation of the Delivery of Mental Hygiene Services in New York State, which included a number of legislative recommendations for improving the State’s public mental hygiene system. The Committee held two hearings on the recommendations contained in the report and I fully anticipate that the Committee will be considering legislation encompassing several of the recommendations during the 2006 session.

The Committee also spent much of the 2005 session considering measures focused on reducing the risks associated with sex offenders and what role, if any, the State’s mental health system should assume in providing treatment and in involuntary committing certain sex offenders following their release from incarceration. To gain a better understanding of the multitude of issues raised when contemplating legislation authorizing the civil confinement of certain sex offenders, the Assembly Committees of Codes, Corrections and Mental Health convened two forums to draw upon the knowledge of academia, service providers and interested stakeholders. I expect that this issue will continue to occupy much of the Committee’s attention during the 2006 session.

On behalf of myself and the other members of the Committee, I would like to express my sincere appreciation for your support and encouragement throughout the year. With your leadership, the Committee will continue to focus on ensuring that all persons with disabilities in New York receive quality services to which they are entitled.

Very truly yours,

Peter M. Rivera
Chair

2005 ANNUAL REPORT
OF THE
NEW YORK STATE ASSEMBLY
STANDING COMMITTEE ON MENTAL HEALTH, MENTAL RETARDATION
AND DEVELOPMENTAL DISABILITIES

Peter M. Rivera
Chair

Committee Members

The Assembly Committee on Mental Health, Mental Retardation and Developmental Disabilities has jurisdiction over legislation affecting programs that provide services, care and advocacy for individuals with various disabilities. The Committee works to ensure that individuals with a mental illness or a developmental disability, and those with multiple disabilities are provided appropriate and necessary services and protection from abuse or harm. The statutory basis for these programs is contained in the State Mental Hygiene Law.

The Committee works closely with the Committee on Alcoholism and Drug Abuse, the Task Force on People with Disabilities and the Mental Hygiene Task Force. The Committee has legislative oversight of programs administered by the State Office of Mental Health, the State Office of Mental Retardation and Developmental Disabilities and the State Commission on Quality Care and Advocacy for Persons with Disabilities.

During the 2005 session, the Committee reviewed 78 bills and addressed numerous issues aimed at providing quality services to individuals with various disabilities. These issues included reauthorizing the Assisted Outpatient Treatment (AOT) program, or Kendra’s Law, ensuring appropriate mental health services for our aging population, providing housing for individuals living with a mental illness, enhancing the Surrogate Decision-Making Program, and recognizing the important work of direct care professionals. The Committee also held hearings to collect information about the implementation and effectiveness of the AOT program, to gather feedback regarding the recommendations put forth by the Mental Hygiene Task Force, and to solicit views about the best ways in which individuals could be further protected from sex offenses. This report describes the Committee’s major legislative activities during the 2005 session.

1. CONSUMER CARE ISSUES

   1. Protection from Abuse and Neglect
      A.7878-B (Brennan) / S.4877-B (Morahan)
      Chapter 536

      Persons with mental retardation and developmental disabilities represent an especially vulnerable class of individuals who rely on others to protect them from abuse and neglect.

      This law enhances the existing structure developed to respond to allegations of abuse and neglect, and outlines a collaborative process between the Office of Mental Retardation and Developmental Disabilities (OMRDD) and the Office of Children and Family Services (OCFS). It also requires the Commission on Quality of Care and Advocacy for Persons with Disabilities (CQCAPD) to monitor reported allegations and the actions taken in response to such allegations.

   2. Fee Liability
      A.2019 (Brennan)

      On several documented occasions, OMH has attempted to collect payment for services or treatment provided to an individual from funds awarded to the person due to negligent or improper treatment at a state facility. This bill would provide that when an action against the State for negligent or improper treatment in any Department of Mental Hygiene facility results in a settlement or a judgment, the monetary award can not then be offset or collected as payment for services or treatment provide by that facility.

      This bill passed the Assembly but was not acted upon by the Senate.

   3. OMH Community Housing Waiting List
      A.2895 (Rivera, P.)

      The importance of housing in the process of recovery from a psychiatric disability cannot be overstated. Unfortunately, the need for adequate housing for those suffering from a mental illness has reached crisis proportions. Although the State has recently supported numerous funding initiatives designed to expand the availability of housing in the community, there is still an unmet need across the State. While local government units and housing providers may monitor housing requests and referrals, the actual statewide need is unknown.

      This bill would provide the State with a tool to accurately assess the housing needs for persons in need of residential placements. A similar model has been successfully utilized by the state OMRDD to eliminate the need for housing for individuals identified by OMRDD. The bill would require OMH to develop a system by which housing providers can relay information about individuals with mental illness seeking housing to OMH on a monthly basis. OMH would also be required to publish the monthly waiting lists and provide them to designated legislative bodies and each local community service board. By accurately assessing current and future unmet housing needs, this bill would serve as a first, critical step toward providing persons with psychiatric disabilities access to safe and affordable housing in the community.

      This bill passed the Assembly and died in the Senate.

   4. Mental Health Insurance Parity
      A.2912 (Tonko)
      Referred to Assembly Insurance Committee

      Under current law, employers with more than 50 employees must include mental health insurance coverage in their health benefit package. What is missing in current law is a requirement that mental health coverage be equal or parallel to coverage for other illnesses. This has led to inadequate mental health benefits for many working adults, and their children and families.

      This bill, commonly referred to as "Timothy’s Law," would align these two systems, mirroring mental health coverage with current health coverage for other illnesses. For example, the out of pocket expense paid by employees would be the same for a therapy session as it would be for an annual physical. Likewise, the number of days or visits needed would be shaped by the patient and his or her physician, not by a pre-determined insurance policy. While the provisions of this bill would greatly impact individuals with mental illness, the legislation is within the jurisdiction of the Insurance Committee.

      This bill passed the Assembly and was referred to the Senate Insurance Committee.

2. SERVICE DELIVERY, OVERSIGHT AND MANAGEMENT

   1. Continued Operation of the Surrogate Decision-Making Committee Program
      A.8709 Rules (Lupardo) / S.5339 (Morahan)
      Chapter 126

      In 1985, New York State created the Surrogate Decision-Making Committee (SDMC) program, which authorizes committees of trained volunteers to exercise medical decision-making authority on behalf of mentally disabled persons who lack capacity to make such decisions and who do not have a family member or a legally authorized guardian who is willing to make the medical decisions on their behalf. Administered by the CQCAPD, the SDMC program is designed to provide a more efficient and personalized process for obtaining an informed decision than through the approach afforded by the courts. In 1992, the Commission was authorized to contract with local community dispute resolution centers to assist in the administration of the program. This collaborative effort has provided timely and cost-effective responses through the SDMC program. This law makes permanent the authority of the CQCAPD to contract with community dispute resolution centers for the provision of administrative support and assistance to operate the SDMC program.

   2. Clarification of Provisions related to the Assisted Outpatient Treatment Program
      A.8991 Rules (Rivera, P.) / S.5909 (Morahan)
      Chapter 137

      This law clarifies the eligibility criteria of court-ordered assisted outpatient treatment, as enacted by Chapter 158 of the Laws of 2005. One of the primary goals of the program is to permit individuals, who would otherwise be hospitalized, to receive treatment in the community. Among the several criteria the court must consider when determining whether a person qualifies for assisted outpatient treatment is the individual’s willingness to voluntarily participate in outpatient treatment. This measure clarifies that the court must find that the subject of a petition for assisted outpatient treatment is unlikely to voluntarily participate in outpatient treatment that would enable him or her to live safely in the community.

   3. Extension of the Assisted Outpatient Treatment Program
      A.8954 Rules (Rivera, P.) / S.5876 (Morahan)
      Chapter 158

      In 1999, New York State enacted legislation that created a statutory framework for providing court-ordered assisted outpatient treatment for persons with a mental illness who may be unlikely to survive safely in the community without appropriate services and supports. Since that time, over 4,100 court orders have been issued. The statute, commonly referred to as Kendra’s Law, was set to expire on June 30, 2005. This law extends Kendra’s Law for another five years, and makes several important enhancements to it. These improvements include increasing the number of people who may petition the court for an assisted outpatient treatment order, requiring OMH to develop a mental health training program for supreme and county court judges and court personnel, requiring an external evaluation of the Assisted Outpatient Treatment program to be conducted, and requiring annual reports on the program to be provided to the Governor and the Legislature.

   4. Authorization of Intensive and Supportive Case Managers
      A.2972 (Rivera, P.) / S.2704 (Morahan)
      Chapter 192

      This law adds intensive and supportive case managers to the list of individuals authorized to report to county mental hygiene departments on the apparent need to transport a non-consenting person assigned to their care to a hospital psychiatric emergency room for evaluation for possible hospitalization. As these case managers' responsibilities have grown over the past several years to become the constant link between the client and the mental health services they receive, these case managers are often most familiar with the particular circumstances of an individual. Currently, there are twelve other categories of people authorized in statute to report to the local mental hygiene department on such need.

   5. Cooperation with CQCAPD
      A.1248 (Dinowitz) / S.4142 (Morahan)
      Chapter 435

      The CQCAPD currently investigates complaints by or on behalf of individuals who are served by facilities with an operating certificate from an office of the Department of Mental Hygiene. This law will require programs funded or administered by OMH or the OMRDD to cooperate with applicable regulatory and statutory provisions of such Offices, and to cooperate with the oversight functions of the CQCAPD. This measure will help to ensure the quality of care provided to persons in the community who are receiving services through programs or facilities funded by OMH or OMRDD.

   6. Confidentiality of Clinical Records
      A.8076-A (Rivera, P.) / S.4775-A (Morahan)
      Chapter 571

      Pursuant to state and federal laws and regulations, licensed mental hygiene facilities must keep patient records confidential. Confidentiality practices governing non-licensed and non-traditional services are not so clear. In order to clarify confidentiality issues, this law extends the current provisions concerning the confidentiality of patient records and the disclosure of information to include any program operated by or under contract with a local director of community services.

   7. Fiscal Management Review
      A.152 (Destito)

      When a program applies for or renews an operating certificate or a certificate of incorporation, either the Commissioner of OMRDD or the OMH must look at a variety of criteria. This bill would require that upon the issuance or the renewal of such certificates, the appropriate commissioner would review the financial practices of certain individuals and operators. This measure would enhance the financial accountability of the programs licensed by OMRDD and OMH.

      This bill passed the Assembly and died in the Senate.

   8. Workforce Reduction Plans
      A.5385 (Rivera, P.) / S.3532 (Robach)

      Current law requires OMH, but not OMRDD, to engage in extensive planning upon the closure or the significant reduction in services at a state-operated facility. For instance, OMH must give twelve months notice to and coordinate efforts with the community, consumer groups, advocacy groups, employee organizations and other state agencies before any such closure or significant reduction in services. This bill would require that OMRDD follow an essentially identical process to that of OMH when facing potential closures or reductions.

      This measure passed the Assembly but was not acted upon by the Senate.

3. SUPPORT FOR CONSUMERS, PARENTS AND FAMILIES

   1. Expansion of Surrogate Decision-Making Committee program
      A.5794-A (Brennan) / S.2751-A (Morahan)
      Chapter 715

      The Surrogate Decision-Making Committee (SDMC) program was established to make critical medical decisions for persons who live in or receive services from a Department of Mental Hygiene facility, who lack capacity to make medical decisions, and who do not have a relative or guardian to make such decisions for them. This law provides that an individual, for whom a SDMC has issued a determination, may continue to receive surrogate decision-making regardless of a change in residential status. This law will ensure that someone who qualifies for this program will continue to benefit from this resource even if they are placed outside of the mental hygiene system.

   2. Guardian Decision-Making Authority
      A.8274 (Rivera, P.) / S.5323 (Hannon)
      Referred to Assembly Judiciary Committee
      Chapter 744

      This law amends provisions of the Surrogate’s Court Procedure Act to correct an omission in Chapter 500 of the Laws of 2002. It ensures that individuals with mental retardation and those with developmental disabilities have guardians with the same level of authorization to make health care decisions, including the ability to withdraw life-sustaining treatment.

   3. Certification of Healthcare Decision-Making Capacity
      A.8906 Rules (Rivera, P.) / S.5803 (Hannon)
      Referred to Assembly Judiciary Committee
      Veto Message #121

      Chapter 500 of the Laws of 2000 clarified that guardians of persons with mental retardation have the authority to make health care decisions, including decisions regarding life-sustaining treatment under certain circumstances. This bill would amend the Surrogate'’s Court Procedure Act to require that guardians appointed prior to the effective date of Section 1750-b of the Surrogate’s Court Procedure Act file a determination certifying that a ward with mental retardation or developmental disabilities lacks capacity to make his or her own health care decisions. This measure would clarify Chapter 500 of the Laws of 2002.

      This bill passed both houses of the Legislature but was vetoed by the Governor. The Governor maintained that the issue was being reviewed by the Court of Appeals and legislation was not necessary at this time.

4. OTHER PROGRAM AREAS

   1. Geriatric Mental Health Act
      A.7672-B (Rivera, P.) / S.4742-B (Spano)
      Chapter 568

      It is estimated that the elderly population, those over 65 years of age, will double over the next thirty years. Currently, there are an estimated six million American seniors with depression and only 10 percent of them are receiving treatment. Between 2010 and 2020 alone the number of older adults with mental illnesses will grow from approximately eight million to approximately 11 million. The mental health needs of this population are strikingly different than other groups; yet there are few programs providing comprehensive, integrated services targeted to this population.

      This landmark legislation, which enacts the "Geriatric Mental Health Act," is the first measure in the nation to address the growing mental health challenges of seniors. Specifically, the law increases the focus on this population by establishing an Interagency Geriatric Mental Health Planning Council. This Council will be responsible for making recommendations regarding all aspects of the mental health needs of the aging population. Likewise, this law provides for demonstration projects to increase services to older New Yorkers.

   2. Community Mental Hygiene Services Fund
      A.2974 (Rivera, P.)

      As New York State continues to embrace the notion of deinstitutionalization through the down-sizing or closing of state-operated mental hygiene facilities, there is a consequential savings in state expenditures and potentially, increased revenues resulting from asset sales or leases. This legislation seeks to build upon the success of the State’s Community Mental Health Reinvestment Program, which supports the growth of community-based mental health programs through savings captured by state-operated inpatient psychiatric bed closures.

      Specifically, this bill would require that revenue produced from closures of Department of Mental Hygiene facilities or programs, and any savings from the reduction in services associated with such facilities or programs, be deposited into a Community Mental Hygiene Services Fund. This fund would earmark funds for capital projects and for operation costs of state-run or not-for-profit programs within the Offices of the Department of Mental Hygiene.

      This bill passed the Assembly but was not acted upon by the Senate.

   3. Judicial Discretion for Attorney Compensation
      A.4126 (Gottfried)

      During an Article 81 proceeding for the appointment of a guardian for an alleged incapacitated person, the court can direct the petitioner to pay the fees of Mental Hygiene Legal Services or other counsel appointed to represent the subject of the proceeding. However, the statute is currently silent with respect to a court’s discretion to determine compensation for an attorney privately retained by such alleged incapacitated person. This bill would clarify this omission by authorizing the court, within its discretion, to determine reasonable compensation for any attorney retained by the person alleged to be incapacitated, thereby increasing an alleged incapacitated individual’s access to counsel.

      This bill passed the Assembly but died in the Senate.

   4. Temporary Epilepsy Task Force
      A.8743 Rules (Lifton) / S.4934 -A (Morahan)

      Section 1.03(22) of the Mental Hygiene Law provides a categorical definition of developmental disabilities, which includes mental retardation, cerebral palsy, epilepsy, neurological impairments, and autism. In August 2001, OMRDD promulgated an Advisory Guideline providing direction for determining eligibility for OMRDD services. The Guideline indicates that eligibility for services is based on adaptive behavior measures. These measures are used primarily to determine the level of disability for people with subnormal intelligence. These measures may not be applicable to persons with epilepsy. As a result, the Advisory Guideline has created a barrier to OMRDD services for people severely disabled by epilepsy that is inconsistent with the NYS Mental Hygiene Law.

      This legislation would create a temporary Epilepsy Task Force to develop eligibility guidelines that would be sensitive to the unique disabling effects of epilepsy. This measure would provide a reasonable approach to ensuring that those individuals severely disabled by epilepsy receive the OMRDD services to which they are entitled under state law.

      The bill passed the Assembly but died in the Senate.

   5. Recognition of Direct Support Professionals
      K. 360 (Rivera, P.)

      This resolution was adopted by the Assembly to recognize the hard work of direct care staff and the important role they play in the care and treatment of those living with mental disabilities. The care provided by direct support professionals is the cornerstone of our State's system of treatment and service delivery to persons with disabilities. Nonetheless, high rates of employee vacancies and annual turnover rates hovering near 40 percent threaten the ability of providers to offer safe and high-quality supports to individuals with developmental or psychiatric abilities. The current situation results in large part from the extraordinary physical and mental demands placed upon direct support professionals, who often receive uncompetitive salaries and benefits. At the same time, individuals in need rely on the stability and skill level of such direct care staff. The Assembly urges New York State and the New York State Congressional Delegation to promote a stable and qualified direct support workforce for individuals with mental retardation and other developmental or psychiatric disabilities.

During 2005, the Committee held several hearings to address major issues under consideration by the Committee. The Committee first held two public hearings in April to solicit public feedback regarding the implementation of the State’s Assisted Outpatient Treatment program. The statute enacting the program, commonly referred to as "Kendra’s Law," was first enacted in 1999 and was set to expire on June 30, 2005. The Committee also held two public hearings to consider measures for improving the State’s mental hygiene service delivery system. These two hearings focused specifically on the recommendations put forth in the February 2005 report, An Evaluation of the Delivery of Mental Hygiene Services in New York State, submitted to the Committee by the Mental Hygiene Task Force.

In conjunction with the Assembly Committees of Codes and Corrections, the Committee also convened a roundtable discussion and a public hearing on current criminal penalties and the potential civil commitment of sex offenders. The purpose of these forums was to evaluate the best ways New York laws should be changed to better protect the public from sex offenders, including a review of whether New York should enact a law providing for the involuntary civil commitment of sex offenders following their terms of incarceration.

1. Assisted Outpatient Treatment ("Kendra’s Law")

   Friday, April 8, 2005 at 10:30 AM
   Assembly Hearing Room, 250 Broadway, New York City

   Thursday, April 21, 2005 at 11:00 AM
   Buffalo and Erie County Public Library, Buffalo

   In 1999, New York State enacted controversial legislation providing court-ordered assisted outpatient treatment for persons with a mental illness who may be unlikely to survive safely in the community without appropriate services and supports. As this initiative was set to sunset on June 30, 2005, a comprehensive review of the implementation and effectiveness of the program was warranted.

   There were two hearings held on this issue. Over 23 different organizations and groups participated in the hearings. These included family members, consumers, professors, a representative from the New York State Attorney General’s Office, New York City and county providers, the National Alliance for the Mentally Ill, New York Association of Psychiatric Rehabilitation Services and Committee of Local Mental Hygiene Directors. Over 58 individuals shared their experiences and recommendations about this program. This feedback was vital in shaping the changes made to assisted outpatient treatment, and in the ultimate decision to renew the legislation.

2. Mental Hygiene Task Force

   Friday, June 3, 2005 at 11:00 AM
   Onondaga County Legislative Chambers, Syracuse

   Friday, June 17, 2005 at 10:00 AM
   Assembly Hearing Room, 250 Broadway, New York City

   In June 2005, the Committee held two public hearings to evaluate the recommendations proposed by the Mental Hygiene Task Force in its February, 2005 report, An Evaluation of the Delivery of Mental Hygiene Services in New York State. Over 25 advocates, providers, family members and consumers testified. The information collected from these hearings enabled the Committee to draft new legislative initiatives and modify existing recommendations.

   The Committee is currently working on several legislative initiatives with the intention of introducing and acting on them during the next legislative session. The Committee and Task Force have focused significant attention on populations that have been overlooked by traditional mental health providers and OMH. For example, legislation is being drafted to require the Mental Health Services Council and the Advisory Councils on Mental Retardation and Developmental Disabilities and Alcoholism and Substance Abuse Services to each identify gaps in services to persons with multiple disabilities when establishing their respective statewide goals and objectives. Likewise, legislation is currently being developed to require OMH to study and report on populations with high rates of unmet mental health needs and to make recommendations for improving mental health service delivery to the identified populations. To further foster the growth of culturally and linguistically competent mental health services, the Committee is drafting legislation that would create a Division of Minority Mental Health within OMH. This Division would be charged with evaluating and improving the current mental health service delivery model for ethnic and minority populations.

   Similarly, another legislative initiative under development would require OMH to establish two centers of excellence in culturally and linguistically competent mental health. These centers would advance best practices to improve the quality and availability of mental health services offered to the diverse populations of New York State. Lastly, in an effort to provide interested parties and the general public with sufficient time to review and comment on the Department of Mental Hygiene’s annual five-year plans, legislation will be introduced in 2006 that would change the deadline for the submission of the five-year plan to an earlier date in the calendar year.

3. Criminal Penalties and the Civil Commitment of Sex Offenders

   Roundtable:	Wednesday, July 20, 2005 at 10:30 AM Assembly Hearing Room, 250 Broadway, New York City
   Hearing:	Tuesday, September 20, 2005 Legislative Office Building, Hamilton Hearing Room B, Albany

   Over the past decade, New York has significantly strengthened the laws that punish sex offenders and other violent crimes and has enacted measures for the control and supervision of offenders after prison terms are completed. Recently, a number of other proposals were made in both the Assembly and Senate, including measures to provide life sentences for first time aggravated rape, authorize the lifetime registration of low and moderate risk offenders under the State’s Sex Offender Registration Act, and require electronic monitoring and enhanced parole and post-release supervision for high risk sex offenders.

   The purpose of the roundtable discussion, which was by invitation only, and the public hearing was to solicit views from knowledgeable persons about the best ways in which New Yorkers could be further protected from sex offenses, including the question of whether New York should enact a civil commitment law for sex offenders. The valuable information generated at the two forums, which numerous members of the Assembly attended, was incorporated into legislation that provides for the civil commitment for sex offenders who pose a further risk to society after their release from prison.

APPENDIX A

SUMMARY OF ACTION ON ALL BILLS