STATE OF NEW YORK ________________________________________________________________________ 910 2023-2024 Regular Sessions IN SENATE January 9, 2023 ___________ Introduced by Sen. ORTT -- read twice and ordered printed, and when printed to be committed to the Committee on Alcoholism and Substance Abuse AN ACT to amend the mental hygiene law, in relation to emergency inter- vention for persons impaired by substances The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 22.09 of the mental hygiene law, as amended by 2 section 1 of part D of chapter 69 of the laws of 2016, paragraph 5 of 3 subdivision (a) as amended by section 9 of part AA of chapter 57 of the 4 laws of 2021, is amended to read as follows: 5 § 22.09 Emergency services for persons intoxicated, impaired, or inca- 6 pacitated by alcohol [and/or substances]. 7 (a) As used in this article: 8 1. "Intoxicated or impaired person" means a person whose mental or 9 physical functioning is substantially impaired as a result of the pres- 10 ence of alcohol [and/or substances] in his or her body. 11 2. "Incapacitated" means that a person, as a result of the use of 12 alcohol [and/or substances], is unconscious or has his or her judgment 13 otherwise so impaired that he or she is incapable of realizing and 14 making a rational decision with respect to his or her need for treat- 15 ment. 16 3. "Likelihood to result in harm" or "likely to result in harm" means 17 (i) a substantial risk of physical harm to the person as manifested by 18 threats of or attempts at suicide or serious bodily harm or other 19 conduct demonstrating that the person is dangerous to himself or 20 herself, or (ii) a substantial risk of physical harm to other persons as 21 manifested by homicidal or other violent behavior by which others are 22 placed in reasonable fear of serious physical harm. 23 4. "Emergency services" means immediate physical examination, assess- 24 ment, care and treatment of an incapacitated person for the purpose of EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD03698-01-3
S. 910 2 1 confirming that the person is, and continues to be, incapacitated by 2 alcohol [and/or substances] to the degree that there is a likelihood to 3 result in harm to the person or others. 4 5. "Treatment facility" means a facility designated by the commission- 5 er which may only include a general hospital as defined in article twen- 6 ty-eight of the public health law, or a medically managed or medically 7 supervised withdrawal, inpatient rehabilitation, or residential stabili- 8 zation treatment program that has been certified by the commissioner to 9 have appropriate medical staff available on-site at all times to provide 10 emergency services and continued evaluation of capacity of individuals 11 retained under this section or a crisis stabilization center licensed 12 pursuant to [article] section 36.01 of this chapter. 13 (b) 1. An intoxicated or impaired person may come voluntarily for 14 emergency services to a chemical dependence program or treatment facili- 15 ty authorized by the commissioner to provide such emergency services. A 16 person who appears to be intoxicated or impaired and who consents to the 17 proffered help may be assisted by any peace officer acting pursuant to 18 his or her special duties, police officer, or by a designee of the 19 director of community services to return to his or her home, to a chemi- 20 cal dependence program or treatment facility, or to any other facility 21 authorized by the commissioner to provide such emergency services. In 22 such cases, the peace officer, police officer, or designee of the direc- 23 tor of community services shall accompany the intoxicated or impaired 24 person in a manner which is reasonably designed to assure his or her 25 safety, as set forth in regulations promulgated in accordance with 26 subdivision (d) of this section. 27 2. A person who appears to be incapacitated by alcohol [and/or 28 substances] to the degree that there is a likelihood to result in harm 29 to the person or to others may be taken by a peace officer acting pursu- 30 ant to his or her special duties, or a police officer who is a member of 31 the state police or of an authorized police department or force or of a 32 sheriff's department or by the director of community services or a 33 person duly designated by him or her to a treatment facility for 34 purposes of receiving emergency services. Every reasonable effort shall 35 be made to protect the health and safety of such person, including but 36 not limited to the requirement that the peace officer, police officer, 37 or director of community services or his or her designee shall accompany 38 the apparently incapacitated person in a manner which is reasonably 39 designed to assure his or her safety, as set forth in regulations 40 promulgated in accordance with subdivision (d) of this section. 41 3. A person who comes voluntarily or is brought without his or her 42 objection to any such facility or program in accordance with this subdi- 43 vision shall be given emergency care and treatment at such place if 44 found suitable therefor by authorized personnel, or referred to another 45 suitable facility or treatment program for care and treatment, or sent 46 to his or her home. 47 4. The director of a treatment facility may receive as a patient in 48 need of emergency services any person who appears to be incapacitated as 49 defined in this section. 50 5. A person who comes voluntarily or is brought with his or her 51 objection to a treatment facility shall be examined as soon as possible 52 but not more than twelve hours after arriving at such treatment facility 53 by an examining physician. If such examining physician determines that 54 such person is incapacitated by alcohol [and/or substances] to the 55 degree that there is a likelihood to result in harm to the person or 56 others, he or she may be retained to receive emergency services and
S. 910 3 1 shall be regularly reevaluated to confirm continued incapacity by alco- 2 hol [and/or substances] to the degree that there is a likelihood to 3 result in harm to the person or others. If the examining physician 4 determines at any time that such person is not incapacitated by alcohol 5 [and/or substances] to the degree that there is a likelihood to result 6 in harm to the person or others, he or she must be released. Notwith- 7 standing any other law, in no event may such person be retained against 8 his or her objection beyond whichever is the shorter of the following: 9 (i) the time that he or she is no longer incapacitated by alcohol 10 [and/or substances] to the degree that there is a likelihood to result 11 in harm to the person or others or (ii) a period longer than seventy-two 12 hours. 13 6. Every reasonable effort must be made to obtain the person's consent 14 to give prompt notification of a person's retention in a facility or 15 program pursuant to this section to his or her closest relative or 16 friend, and, if requested by such person, to his or her attorney and 17 personal physician, in accordance with federal confidentiality regu- 18 lations. 19 7. A person may not be retained pursuant to this section beyond a 20 period of seventy-two hours without his or her consent. Persons suitable 21 therefor may be voluntarily admitted to a chemical dependence program or 22 facility pursuant to this article. 23 (c) Discharge procedures. 1. The discharge procedure process shall 24 begin as soon as the patient is admitted to the treatment facility and 25 shall be considered a part of the treatment planning process. The 26 discharge plan shall be developed in collaboration with the patient and 27 any significant other(s) the patient chooses to involve. If the patient 28 is a minor, the discharge plan must also be developed in consultation 29 with his or her parent or guardian, unless the minor is being treated 30 without parental consent as authorized by section 22.11 of this [chap- 31 ter] article. 32 2. No patient shall be discharged without a discharge plan which has 33 been completed and reviewed by the multi-disciplinary team prior to the 34 discharge of the patient. This review may be part of a regular treatment 35 plan review. The portion of the discharge plan which includes the refer- 36 rals for continuing care shall be given to the patient upon discharge. 37 This requirement shall not apply to patients who refuse continuing care 38 planning, provided, however, that the treatment facility shall make 39 reasonable efforts to provide information about the dangers of long term 40 substance use as well as information related to treatment including, but 41 not limited to, the OASAS HOPELINE and the OASAS Bed Availability Dash- 42 board. 43 3. The discharge plan shall be developed by the responsible clinical 44 staff member, who, in the development of such plan, shall consider the 45 patient's self-reported confidence in maintaining abstinence and follow- 46 ing an individualized relapse prevention plan. The responsible clinical 47 staff member shall also consider an assessment of the patient's home and 48 family environment, vocational/educational/employment status, and the 49 patient's relationships with significant others. The purpose of the 50 discharge plan shall be to establish the level of clinical and social 51 resources available to the patient upon discharge from the inpatient 52 service and the need for the services for significant others. The 53 discharge plan shall include, but not be limited to, the following: 54 (i) identification of continuing chemical dependence services includ- 55 ing management of withdrawal or continuing stabilization and any other
S. 910 4 1 treatment, rehabilitation, self-help and vocational, educational and 2 employment services the patient will need after discharge; 3 (ii) identification of the type of residence, if any, that the patient 4 will need after discharge; 5 (iii) identification of specific providers of these needed services; 6 and 7 (iv) specific referrals and initial appointments for these needed 8 services. 9 4. A discharge summary which includes the course and results of care 10 and treatment must be prepared and included in each patient's case 11 record within twenty days of discharge. 12 (d) The commissioner shall promulgate all rules and regulations, after 13 consulting with representatives of appropriate law enforcement and chem- 14 ical dependence providers of services, establishing procedures for 15 taking intoxicated or impaired persons and persons apparently incapaci- 16 tated by alcohol [and/or substances] to their residences or to appropri- 17 ate public or private facilities for emergency services and for minimiz- 18 ing the role of the police in obtaining treatment of such persons 19 necessary to implement the provisions of this section, including but not 20 limited to establishing procedures for transporting incapacitated 21 persons to a treatment facility for emergency services. 22 § 2. The mental hygiene law is amended by adding a new section 22.10 23 to read as follows: 24 § 22.10 Emergency services for persons impaired or incapacitated by 25 substances. 26 (a) Definitions. As used in this article: 27 1. "Impaired person" means a person whose mental or physical function- 28 ing is substantially impaired as a result of the presence of substances 29 in his or her body. 30 2. "Incapacitated" means that a person, as a result of the use of 31 substances, is unconscious or has his or her judgment otherwise so 32 impaired that he or she is incapable of realizing and making a rational 33 decision with respect to his or her need for treatment. 34 3. "Likelihood to result in harm" or "likely to result in harm" means 35 (i) a substantial risk of physical harm to the person as manifested by 36 threats of or attempts at suicide or serious bodily harm or other 37 conduct demonstrating that the person is dangerous to himself or 38 herself, or (ii) a substantial risk of physical harm to other persons as 39 manifested by homicidal or other violent behavior by which others are 40 placed in reasonable fear of serious physical harm. 41 4. "Emergency services" means immediate voluntary or involuntary phys- 42 ical examination, assessment, care and treatment of an impaired person 43 who has become incapacitated in order to achieve stabilization and/or 44 subsequent admission to extended voluntary or involuntary treatment. 45 5. "Treatment facility" means a hospital as defined in article twen- 46 ty-eight of the public health law, or a chemical dependence program 47 facility certified or approved by the commissioner. 48 6. "Substance" shall have the same meaning as set forth in subdivision 49 thirty-nine of section 1.03 of this chapter. 50 (b) Voluntary emergency services. 1. An impaired person may come 51 voluntarily for emergency services to a chemical dependence program or 52 treatment facility authorized by the commissioner to provide such emer- 53 gency services. A person who appears to be impaired and who consents to 54 the proffered help shall be assisted by any peace officer acting pursu- 55 ant to his or her special duties, police officer, or by a designee of 56 the director of community services to return to his or her home, to a
S. 910 5 1 chemical dependence program or treatment facility, or to any other 2 facility authorized by the commissioner to provide emergency services. 3 In such cases, the peace officer, police officer, or designee of the 4 director of community services shall accompany the impaired person in a 5 manner which is reasonably designed to assure his or her safety, as set 6 forth in regulations promulgated in accordance with subdivision (f) of 7 this section. 8 2. Consistent with subdivision (b) of section 22.07 of this article, a 9 person who appears to be incapacitated by substances to the degree that 10 there is a likelihood to result in harm to the person or to others shall 11 be taken by a peace officer acting pursuant to his or her special 12 duties, or a police officer who is a member of the state police or of an 13 authorized police department or force or of a sheriff's department or by 14 the director of community services or a person duly designated by him or 15 her, or pursuant to petition to the director of community services 16 pursuant to subdivision (d) of this section, to a treatment facility for 17 purposes of receiving emergency services. Every reasonable effort shall 18 be made to protect the health and safety of such person, including but 19 not limited to the requirement that the peace officer, police officer, 20 or director of community services or his or her designee shall accompany 21 the apparently incapacitated person in a manner which is reasonably 22 designed to assure his or her safety, as set forth in regulations 23 promulgated in accordance with subdivision (f) of this section. 24 3. A person who comes voluntarily or is brought without his or her 25 objection to any such treatment facility in accordance with paragraph 26 two of this subdivision shall be provided emergency services at such 27 place if found suitable by authorized personnel, or referred to another 28 suitable facility or treatment program for emergency services, or sent 29 to his or her home. 30 4. A person who is brought with his or her objection to any treatment 31 facility in accordance with paragraph two of this subdivision shall be 32 examined as soon as possible by an examining physician. If such examin- 33 ing physician determines that such person is incapacitated by substances 34 to the degree that there is a likelihood to result in harm to the person 35 or others, he or she may be retained for emergency treatment to achieve 36 stabilization. If the examining physician determines that such person is 37 not incapacitated by substances to the degree that there is a likelihood 38 to result in harm to the person or others, he or she must be released. 39 Except as provided in subdivision (c) of this section, in no event may 40 such person be retained against his or her objection beyond whichever is 41 the shorter of the following: 42 (i) the time that he or she is no longer incapacitated by substances 43 to the degree that there is a likelihood to result in harm to the person 44 or others or; 45 (ii) a period longer than seventy-two hours. 46 5. Every reasonable effort must be made to obtain the person's consent 47 to give prompt notification of a person's retention in a facility or 48 program pursuant to this subdivision to his or her closest relative or 49 friend, and, if requested by such person, to his or her attorney and 50 personal physician, in accordance with federal confidentiality regu- 51 lations. 52 (c) Involuntary emergency services on certificate of a director of 53 community services or designee. 1. The director of a treatment facility 54 designated by the commissioner to provide emergency services shall upon 55 the certificate of a local director of community services or a physician 56 duly designated by the director of community services, receive and care
S. 910 6 1 for in such facility as a patient any person who, in the opinion of the 2 director of community services or his or her designee sought by petition 3 pursuant to subdivision (d) of this section, is incapacitated such that 4 such person's use or abuse of chemical substances is likely to result in 5 harm to himself, herself or others and for whom immediate involuntary 6 emergency services is appropriate. 7 2. The need for immediate involuntary emergency services shall be 8 confirmed prior to admission by a physician affiliated with the facili- 9 ty. Excluding Sundays and holidays, if the physician recommends such 10 patient be retained for emergency services beyond seventy-two hours and 11 the patient does not agree to remain in such facility as a voluntary 12 patient, the certificate of such physician attesting that the patient is 13 in need of extended involuntary emergency services shall be filed with 14 the facility. From the time of such patient's admission under this 15 subdivision the retention of such patient for emergency services beyond 16 seventy-two hours shall be subject to the provisions for notice, hear- 17 ing, review, and judicial approval provided by this article for the 18 admission and retention of involuntary patients, provided that, for the 19 purposes of such provisions, the date of admission of the patient shall 20 be deemed to be the date when the patient was first received in the 21 facility pursuant to this subdivision. 22 (d) Petition to local director of community services for voluntary or 23 involuntary emergency services. 1. A petition for emergency services may 24 be sought for an adult or for a minor by petition to a local govern- 25 mental unit's director of community services in accordance with this 26 subdivision. Any one of the following persons may petition the director 27 of community services: 28 (i) in the case of an adult, a physician, the person's spouse or guar- 29 dian, any relative of the person, or any other adult who has personal 30 knowledge of a person's substance abuse impairment; or 31 (ii) in the case of a minor, the minor's parent, legal guardian, or 32 legal custodian. 33 2. Petition for admission of a patient to a treatment facility for 34 emergency services pursuant to this section shall be based upon a 35 personal examination by a director of community services or his or her 36 designee. It shall be in writing and shall be filed with the director of 37 a facility at the time of the patient's reception, together with a 38 statement in a form prescribed by the commissioner giving such informa- 39 tion as he or she may deem appropriate. A petition for admission for 40 emergency services must establish the reason the petitioner believes 41 that there is a likelihood to result in harm to the person or others 42 unless he or she is admitted for immediate emergency services. A peti- 43 tion must include: 44 (i) the name of the person to be admitted, the name and signature of 45 the petitioner, the relationship between the person to be admitted and 46 the applicant; and 47 (ii) the reason the petitioner believes that because of such impair- 48 ment the person has lost the power of self-control with respect to 49 substance abuse; and 50 (iii) the reason the petitioner believes that the person's refusal to 51 voluntarily receive emergency services is based on judgement so impaired 52 by reason of substance abuse that he or she is incapable of appreciating 53 his or her need for such services and of making a rational decision 54 regarding his or her need for services.
S. 910 7 1 3. Upon receipt of such petition, the director of community services 2 or a person duly designated by him or her shall review such petition and 3 may take actions pursuant to subdivisions (b) or (c) of this section. 4 (e) Each person admitted to a treatment facility for emergency 5 services pursuant to this section shall be provided with written notice 6 regarding patient rights pursuant to section 22.03 of this article, 7 access to his or her personal attorney upon request, and notice as to 8 the availability of the mental hygiene legal service for legal counsel 9 and shall be provided access to the service upon request. 10 (f) The commissioner shall promulgate regulations establishing proce- 11 dures for taking intoxicated or impaired persons and persons apparently 12 incapacitated by alcohol and/or substances to their residence or to 13 appropriate public or private treatment facilities for emergency 14 services and minimizing the role of the police in obtaining treatment of 15 such persons. 16 § 3. The mental hygiene law is amended by adding a new section 22.13 17 to read as follows: 18 § 22.13 Court authorization to retain an involuntary patient. 19 (a) If the director of a facility shall determine that a patient 20 admitted pursuant to subdivision (c) of section 22.10 of this article, 21 for whom there is no prior court order authorizing retention for a spec- 22 ified period, is in need of retention beyond seventy-two hours and if 23 such patient does not agree to remain in such facility as a voluntary 24 patient, the director shall apply to the supreme court or the county 25 court in the county where the facility is located for an order authoriz- 26 ing continued retention. The facility is authorized to retain the 27 patient for seventy-two hours or during the period in which the applica- 28 tion may be pending, such period not to exceed ninety days. The director 29 shall cause written notice of such application to be given to the 30 patient and a copy thereof shall be given personally or by mail to any 31 persons required by this article to be served with notice of such 32 patient's initial admission and to the mental hygiene legal service. 33 Such notice shall state that a hearing may be requested by the patient 34 or the service and that failure to make such a request within five days, 35 excluding Sunday and holidays, from the date that the notice was given 36 to the patient will permit the entry without a hearing of an order 37 authorizing retention for a period not to exceed ninety days from the 38 date of the order, provided the court is satisfied that the patient 39 requires continued retention. 40 (b) Upon the demand of the patient or of anyone on his or her behalf 41 or upon request of the mental hygiene legal service, the court shall, or 42 may on its own motion, fix a date for the hearing of the application 43 pursuant to court procedure in the jurisdiction of the facility. 44 (c) Except as provided in subdivision (a) of this section a person may 45 not be retained beyond a period of ninety days without his or her 46 consent. Persons suitable therefor may be voluntarily admitted to a 47 chemical dependence program or facility pursuant to this article. 48 § 4. Subdivision (d) of section 22.11 of the mental hygiene law, as 49 added by chapter 558 of the laws of 1999, is amended to read as follows: 50 (d) Inpatient or residential treatment. 1. [Admission] Voluntary 51 admission procedures. (i) A copy of the patient's rights established 52 under this section and under section 22.03 of this article shall be 53 given and explained to the minor and to the minor's consenting parent or 54 guardian at the time of admission by the director of the facility or 55 such person's designee.
S. 910 8 1 (ii) The minor shall be required to sign a form indicating that the 2 treatment is being voluntarily sought, and that he or she has been 3 advised of his or her ability to access the mental hygiene legal service 4 and of his or her rights under this section and section 22.03 of this 5 article. The signed form shall be included in the minor's medical 6 record. 7 (iii) At the time of admission, any minor so admitted shall be 8 informed by the director of the facility or the director's designee, 9 orally and in writing, of the minor's right to be discharged in accord- 10 ance with the provisions of this [section] subdivision within twenty- 11 four hours of his or her making a request therefor. 12 (iv) Emergency contacts. 13 (A) At the time of admission, the provider of services shall use its 14 best efforts to obtain from the minor's consenting parent or guardian a 15 telephone number or numbers where he or she may be reached by the facil- 16 ity at any time during the day or night. In addition, such provider of 17 services shall also use its best efforts to obtain from the parent or 18 guardian a name, address and appropriate telephone number or numbers of 19 an adult designated by such parent or guardian as an emergency contact 20 person in the event the facility is unable to reach such parent or guar- 21 dian. 22 (B) If the minor is admitted in accordance with subdivision (c) of 23 this section, the provider of services shall use its best efforts to 24 obtain from the minor the name, address, and telephone number of an 25 adult who may serve as an emergency contact, and the facility shall 26 verify the existence and availability of such contact upon notice to and 27 with the prior written consent of the minor. 28 (C) Failure to obtain emergency contacts, after reasonable effort, in 29 accordance with this section shall not preclude admission of the minor 30 to treatment. 31 (v) Notice of admission and discharge procedures. 32 (A) A copy of the facility's admission and discharge procedures shall 33 be provided to the minor and to the minor's consenting parent or guardi- 34 an at the time of admission by the director of the facility or such 35 person's designee. Such information shall also be mailed to the desig- 36 nated emergency contact person by regular mail. 37 (B) If the minor is admitted in accordance with subdivision (c) of 38 this section, a copy of the facility's admission and discharge proce- 39 dures shall be provided to the minor. Such information shall also be 40 mailed to the designated emergency contact person by regular mail. 41 (vi) Each minor admitted for inpatient or residential chemical depend- 42 ence treatment pursuant to this subdivision shall be provided with writ- 43 ten notice regarding the availability of the mental hygiene legal 44 service for legal counsel, and shall be provided access to the service 45 upon request. 46 2. Involuntary admission procedures. (i) Minors admitted pursuant to 47 section 22.10 of this article shall be provided with written notice 48 regarding the availability of the mental hygiene legal service for legal 49 counsel, and shall be provided access to the service upon request. 50 (ii) No minor receiving involuntary inpatient emergency services 51 pursuant to subdivision (c) of section 22.10 of this article may be 52 discharged from the program prior to seventy-two hours based solely on 53 his or her request. 54 (iii) A copy of the patient's rights established under this section 55 and under section 22.03 of this article shall be given and explained to
S. 910 9 1 the minor and to the minor's consenting parent or guardian at the time 2 of admission by the director of the facility or such person's designee. 3 (iv) The minor shall be required to sign a form indicating that he or 4 she has been advised of his or her ability to access the mental hygiene 5 legal service and of his or her rights under this section and section 6 22.03 of this article. The signed form shall be included in the minor's 7 medical record. 8 3. Discharge procedures. All minors admitted pursuant to this subdivi- 9 sion shall be discharged in accordance with the following: 10 (i) [Any minor admitted to an inpatient or residential chemical 11 dependence treatment facility has the right to be discharged within 12 twenty-four hours of his or her request in accordance with the 13 provisions of this subdivision. 14 (ii)] If discharge is requested prior to completion of a minor's 15 treatment plan, such minor must request discharge in writing. 16 (A) Upon receipt of any form of written request for discharge, the 17 director of the facility in which the minor is admitted shall immediate- 18 ly notify the minor's parent or guardian. If the facility is unable to 19 contact such parent or guardian within a reasonable time, or if the 20 minor has been admitted pursuant to subdivision (c) of this section, the 21 facility shall notify the designated emergency contact person. 22 (B) The minor shall not be discharged from such facility until it is 23 determined: 24 (1) that the safety and well being of such minor will not be threat- 25 ened [or the expiration of twenty-four hours, whichever is sooner]; [or] 26 (2) that the minor's parent or guardian consents to the release of 27 such minor; and 28 (3) that the parent, guardian, or designated emergency contact person 29 has made appropriate and timely departure arrangements with the facili- 30 ty. [However, unless otherwise directed by the minor's parent or guardi- 31 an or designated emergency contact person pursuant to this item, such 32 minor shall be discharged within twenty-four hours after submission of 33 the request. 34 (iii)] (ii) Writing materials for use in requesting a discharge shall 35 be made available at all times to all minors admitted under this 36 section. 37 (iii) The staff of the facility shall assist such minors in preparing 38 or submitting requests for discharge. 39 § 5. This act shall take effect immediately.