NY Ment Hygiene L § 31.37 (2021)
2021 New York Laws MHY - Mental Hygiene Title E - General Provisions Article 31 - Regulation and Quality Control of Services for the Mentally Disabled 31.37 - Mental Health Incident Review Panels.

§ 31.37 Mental health incident review panels.  (a)  The  commissioner  is  authorized to establish, on his or her own accord or pursuant to a request by a local governmental unit,  a  mental health   incident   review  panel  for  the  purposes  of  reviewing  in conjunction with local  representation,  the  circumstances  and  events related  to  a  serious incident involving a person with mental illness. For purposes of this section, a "serious  incident  involving  a  person with  mental  illness"  means  an incident occurring in the community in which a person with a serious mental illness suffers physical injury  as defined  in subdivision nine of section 10.00 of the penal law or causes such physical injury  to  another  person,  or  suffers  a  serious  and preventable  medical  complication  or  becomes  involved  in a criminal incident involving violence. A panel shall be authorized  to  conduct  a review  of  such  serious incident in an attempt to identify problems or gaps in mental health delivery systems and to make  recommendations  for corrective  actions to improve the provision of mental health or related services, to improve the coordination, integration and accountability of care in the mental health service system, and to enhance individual  and public safety.  (b)   A   mental   health   incident   review   panel   shall  include representatives from the office of mental health and the chief executive officer or designee of the local governmental  unit  where  the  serious incident  involving  a  person  with a mental illness occurred. A mental health incident review panel may also include, if deemed appropriate  by the  commissioner  based  on  the  nature  of the serious incident being reviewed, one or more  representatives  from  mental  health  providers, local   departments   of   social  services,  human  services  programs, hospitals, local schools, emergency medical or mental  health  services, the  office  of the county attorney, state or local police agencies, the office of the medical  examiner  or  the  office  of  the  coroner,  the judiciary,  or  other  appropriate  state  or local officials; provided, however, that a local law enforcement official may not serve as a member of such a review panel if his  or  her  office  or  agency  is  directly involved  in  any  ongoing investigation or prosecution of a crime under review by the panel, or any appeal of a  criminal  conviction  for  such crime.  (c) (i) Notwithstanding any other provision of law to the contrary and to  the  extent  consistent  with  federal law, a mental health incident review panel shall have access  to  those  relevant  client-identifiable mental health records, as well as all records, documentation and reports relating  to  the  investigation  of  an incident by the justice center, pursuant to article twenty of the executive law and  an  incident  by  a facility  in  accordance with regulations of the commissioner, which are necessary for the investigation of  the  serious  incident  involving  a person  with  mental  illness  and  the  preparation of a report of such incident, as provided in subdivision  (e)  of  this  section.  A  mental health  incident review panel investigating a serious incident involving a person with a  mental  illness  pursuant  to  this  section  shall  be provided  with  access  to  all  relevant, non-privileged records in the possession of state or local officials or  agencies,  within  twenty-one days  of  receipt  of  a request, except: (A) those records protected by section 190.25 of the criminal procedure law; (B)  where  providing  law enforcement  records  would  interfere  with  an ongoing law enforcement investigation or judicial proceeding, identify a confidential source  or disclose  confidential  information  relating  to  an  ongoing  criminal investigation, highly sensitive  criminal  investigative  techniques  or procedures, or endanger the safety or welfare of an individual; (C) with respect  to  any  such record that is privileged, where the privilege is  held by the official or agency and no  separate  privilege  held  by  an individual applies, such official or agency shall be authorized to waive such  official's  or agency's privilege, as applicable, and provide such record;  and  (D) whenever an agency, director or unit believes pursuant to subparagraph (B) of this paragraph  that  release  of  records  would interfere with a judicial proceeding, it shall identify that proceeding, and  the  mental  health incident review panel shall be authorized, upon notice to such agency, director or unit, to request in  writing  to  the judge  before  whom such judicial proceeding is pending, that such judge determine whether access to such records should be denied on the  ground that   release   of  such  records  would  interfere  with  the  pending proceeding. Upon receipt of such a request, the judge  shall  offer  the agency,  director  or  unit and the panel a reasonable opportunity to be heard, and may review the disputed records in camera.  The  judge  shall submit  its determination to the agency, director or unit and the mental health incident review panel, and the agency,  director  or  unit  shall then proceed in accordance with the judge's determination.  (ii) In any case in which access to records is denied pursuant to this subdivision, the appropriate agency shall inform the panel in writing of the reasoning for such denial.  (d)  Mental  health  incident  review panels and members of the review panels shall have immunity from civil and  criminal  liability  for  all reasonable  and  good  faith actions taken pursuant to this section, and shall not be questioned in any civil or  criminal  proceeding  regarding any  discussions,  deliberations  or  findings  relating to the official duties of such review panel. Nothing in this section shall be  construed to   prevent  a  person  from  testifying  as  to  information  obtained independently of a mental health incident review panel,  or  information which is public.  (d-1) Persons who present information to the panel shall have immunity from  civil  and  criminal  liability  for all reasonable and good faith actions taken pursuant to this section, and shall not be  questioned  in any   civil   or   criminal   proceeding   regarding   their  authorized participation at a meeting of the panel. Neither information nor records relating to the performance of a review panel function, nor  a  person's participation  in a review panel shall be subject to disclosure pursuant to article thirty-one of the civil practice law and  rules.  Nothing  in this  section  shall  be  construed  to  prevent  the  disclosure of, or testimony  regarding,   information   that   exists   or   is   obtained independently of the panel or information that is public.  (e)  Notwithstanding  any  other provision of law to the contrary, all meetings conducted, all reports and records made and maintained and  all books and papers obtained by a mental health incident review panel shall be  confidential,  and  shall  not  be open or made available, except by court order for good cause shown or as set forth in subdivision  (g)  of this  section.  Each mental health incident review panel shall develop a report of the incident investigated. Such report shall not  contain  any individually  identifiable  information  and  shall  be  provided to the office of mental health upon completion. Records,  reports,  information regarding  testimony  and  other information gathered by the panel shall not be further disseminated by a panel member.  (f) If quality problems  of  particular  mental  health  programs  are identified  based  on  such  reviews,  the  commissioner  is authorized, pursuant to the relevant provisions of this chapter, to take appropriate actions regarding the licensure of particular providers,  to  refer  the issue  to  other responsible parties for investigation, or to take other appropriate action within the scope of his or her authority.  (g) In his or her discretion, the commissioner shall be authorized  to provide  the  final  report of a review panel or portions thereof to any individual or entity for  whom  the  report  makes  recommendations  for corrective  or other appropriate actions that should be taken. Any final report  or  portion  thereof  shall  not  be further disseminated by the individual or entity receiving such report.  Further,  the  commissioner shall  submit  the  final  report of a review panel to the governor, the temporary president of the senate  and  the  speaker  of  the  assembly, consistent with federal and state confidentiality protections.  (h)  The  commissioner shall submit an annual cumulative report to the governor and the legislature incorporating the data in the mental health incident review panel reports and including a summary  of  the  findings and  recommendations  made  by  such  review  panels  and, to the extent practicable, any recommendations that have been  implemented,  including recommendations  from  prior  year  reports,  and  the  impact  of  such implementations. The annual cumulative reports shall thereafter be  made available   to   the   public   consistent   with   federal   and  state confidentiality protections.