NY Ment Hygiene L § 29.15 (2021)
2021 New York Laws MHY - Mental Hygiene Title E - General Provisions Article 29 - General Provisions Relating to In-Patient Facilities 29.15 - Discharge and Conditional Release of Patients to the Community.

§ 29.15 Discharge and conditional release of patients to the community.  (a)  A  patient  may  be  discharged  or conditionally released to the community by the director of a department facility, if, in  the  opinion of staff familiar with the patient's case history, such patient does not require active in-patient care and treatment.  (b)  A  patient may be conditionally released, rather than discharged, when in the opinion of staff familiar with the patient's  case  history, the  clinical  needs  of  such  patient  warrant  this  more restrictive placement, provided, however, that   1. an involuntary patient may be conditionally released only  for  the remainder of the authorized retention period; and   2.  except as provided in subdivision (d) of this section, a voluntary patient may be conditionally released only for a  twelve  month  period, provided however that (i) a voluntary patient under sixteen years of age may  be  conditionally released only after consultation with the parent, legal guardian, or next-of-kin of such patient; (ii) a voluntary patient over sixteen and under  eighteen  years  of  age  may  be  conditionally released  only with his consent or with the consent of the parent, legal guardian, or next-of-kin of such  patient;  (iii)  a  voluntary  patient eighteen  years  of age or older may be conditionally released only with his consent.  (c) The director of a department facility from which  any  patient  is conditionally released shall cause all such patients to be informed once during  each  one  hundred  twenty  days of conditional release of their status and rights, including their right  to  avail  themselves  of  the facilities  of  the  mental  hygiene  legal service. At the time of such periodic notification, the written consent of a patient to his continued stay on conditional release status shall be obtained and a copy  thereof shall be given to the mental hygiene legal service.  (d)  1. No voluntary patient who has been conditionally released shall be continued on such status for a period beyond twelve months  from  the date  of  commencement  of  such status or beyond twelve months from the effective  date  of  this  statute,  whichever  is  later,  unless   the suitability of such patient to remain on such status and his willingness to  so  remain  have  been  reviewed.  The  director  shall  review  the suitability of such patient to remain in such  status,  and  the  mental hygiene  legal  service  shall review the willingness of such patient to remain in such status. Notice of  the  determination  of  the  patient's suitability  made  by  the director shall be given to the mental hygiene legal service. If the mental hygiene legal service finds that  there  is any  ground  to doubt the director's determination of the suitability of such patient to remain on such status, or the willingness of the patient to so remain, it shall make an application, upon notice to  the  patient and  the  director  of  the facility for a court order determining those questions. In any such proceeding, the patient or someone on his  behalf or the mental hygiene legal service may request a hearing. If the mental hygiene legal service finds no grounds to doubt the determination of the director  as  to  the  suitability  or the willingness of the patient to continue on conditional release status, it  shall  so  certify  and  the patient may be continued on such status. A copy of such certification of review shall be filed in the patient's record.   2.  If  an  application for a court order has been made, the court, in determining  the  proceeding,  may  approve  the  continued  conditional release  of  the  patient or, if the court finds that the patient is not suitable or willing to continue on conditional release  status,  it  may order the discharge of such patient.   3.  Prior  to  the  termination  of twelve months from the date of the certification by the mental hygiene legal service of such  first  review  or,  if an application for a court order has been made, from the date of the first order and, thereafter, prior  to  the  termination  of  twelve months  from  any  subsequent  certification or subsequent order, as the case  may  be,  the  director and the mental hygiene legal service shall conduct another review of the patient's suitability and  willingness  to remain  on  conditional  release  status,  as set forth in the foregoing subdivisions.  (e) * 1. In the case of an involuntary patient on conditional release, the director may terminate the conditional release and order the patient to return to the facility at  any  time  during  the  period  for  which retention  was  authorized,  if, in the director's judgment, the patient needs in-patient care and treatment and the conditional  release  is  no longer  appropriate;  provided,  however,  that  in  any  such case, the director shall cause written notice of such patient's return to be given to the mental hygiene  legal  service.  The  director  shall  cause  the patient  to  be retained for observation, care and treatment and further examination in a hospital for up to seventy-two hours if a physician  on the  staff of the hospital determines that such person may have a mental illness and may be in need  of  involuntary  care  and  treatment  in  a hospital pursuant to the provisions of article nine of this chapter. Any continued retention in such hospital beyond the initial seventy-two hour period  shall  be  in  accordance  with  the  provisions of this chapter 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 chapter, and does not agree to stay in the hospital as  a  voluntary  or informal  patient,  he  or she must be released, either conditionally or unconditionally.   * NB Effective until June 30, 2022   * 1. In the case of an involuntary patient on conditional release, the director may terminate the conditional release and order the patient  to return to the facility at any time during the period for which retention was  authorized,  if,  in  the  director's  judgment,  the patient needs in-patient care and treatment and the conditional release is  no  longer appropriate provided, however, that in any such case, the director shall cause  written notice of such patient's return to be given to the mental hygiene legal service. If, at any time prior to the expiration of thirty days from the date of return to the facility,  he  or  any  relative  or friend  or  the  mental hygiene legal service gives notice in writing to the director of request for hearing on the question of  the  suitability of  such  patient's  return  to  the  facility,  a hearing shall be held pursuant to the provisions of this chapter relating to  the  involuntary admission of a person.   * NB Effective June 30, 2022   2.  In  the  case  of  a voluntary patient on conditional release, the director may terminate the conditional release and order the patient  to return to the facility at any time, if, in the judgment of the director, the  patient  needs  in-patient  care  and treatment and the conditional release is no  longer  appropriate,  provided,  however,  that  if  such patient  does  not  consent  to  return to the facility, he shall not be returned to the facility, except in accordance with  the  provisions  of this chapter and the regulations of the commissioner for the involuntary admission of a person.  (f)   The   discharge   or  conditional  release  of  all  clients  at developmental centers, patients at psychiatric centers  or  patients  at psychiatric  inpatient  services  subject  to licensure by the office of mental health shall  be  in  accordance  with  a  written  service  plan prepared  by  staff  familiar  with  the  case  history of the client or  patient to be discharged or conditionally released  and  in  cooperation with  appropriate  social  services  officials  and  directors  of local governmental units. In causing such plan to be prepared, the director of the  facility  shall take steps to assure that the following persons are interviewed, provided an opportunity  to  actively  participate  in  the development  of  such  plan  and  advised  of whatever services might be available to the patient through the mental hygiene legal  service:  the patient  to  be  discharged  or  conditionally  released;  an authorized representative of the patient, to include the parent or parents  if  the patient  is  a  minor,  unless  such minor sixteen years of age or older objects to the participation of the parent or parents and there has been a clinical determination by a physician  that  the  involvement  of  the parent  or  parents is not clinically appropriate and such determination is documented in the clinical record and there is no plan  to  discharge or release the minor to the home of such parent or parents; and upon the request  of  the  patient  sixteen  years of age or older, a significant individual to the  patient  including  any  relative,  close  friend  or individual  otherwise  concerned  with the welfare of the patient, other than an employee of the facility.  (g) A written service plan prepared pursuant  to  this  section  shall include, but shall not be limited to, the following:   1.  a  statement  of  the  patient's  need,  if  any, for supervision, medication, aftercare services, and  assistance  in  finding  employment following discharge or conditional release, and   2.  a  specific  recommendation  of the type of residence in which the patient is to live and a  listing  of  the  services  available  to  the patient in such residence.   3.  A  listing  of  organizations,  facilities, including those of the department, and individuals who are available  to  provide  services  in accordance with the identified needs of the patient.   4.  The  notification  of  the  appropriate  school  district  and the committee on special  education  regarding  the  proposed  discharge  or release  of a patient under twenty-one years of age, consistent with all applicable federal and state laws relating to  confidentiality  of  such information.   5.  An  evaluation of the patient's need and potential eligibility for public benefits following discharge or  conditional  release,  including public assistance, medicaid, and supplemental security income.   6.  Material  providing information related to extreme risk protection orders, pursuant to article sixty-three-A of the civil practice law  and rules.  Such information may be provided to the patient or, upon consent of the  patient,  to  an  authorized  representative  who  has  actively participated  in the patient's treatment plan. Such information may only be provided if the director of the facility and such facility's clinical staff  who  worked  directly  with  the  patient  determine  through  an evaluation and assessment, that there is the presence of a mental health diagnosis  or  symptoms  of  a  mental illness exhibited by the patient, which indicates the patient may be at substantial risk of physical  harm to  himself  or  herself, or has made threats of or attempts at suicide. Such determination and the basis for it shall be included in the written clinical record.   An inpatient facility operated or licensed by  the  office  of  mental health  shall  provide  reasonable  and  appropriate  assistance  to the patient,  in  cooperation  with  local  social  services  districts,  in applying for benefits identified in the written service plan pursuant to paragraph  five  of  this subdivision, prior to discharge or conditional release.  (h) It shall also  be  the  responsibility  of  the  director  of  any department  facility  from which a client or patient has been discharged or conditionally released,  in  collaboration,  when  appropriate,  with appropriate   social   services   officials   and   directors  of  local governmental  units,  to  prepare,  to  cause  to be implemented, and to monitor a comprehensive program designed:   1. to determine whether the residence in which such client or  patient is  living, is adequate and appropriate for the needs of such patient or client;   2. to verify that such patient or client  is  receiving  the  services specified in such patient's or client's written service plan; and   3.  to  recommend,  and  to take steps to assure the provision of, any additional services.  (i) 1. No patient about to be  discharged  or  conditionally  released from a department facility or an inpatient facility operated or licensed by  the  office  of  mental  health  shall  be  directly referred to any facility subject to licensure, certification or approval  by  any  state agency  or  department, unless it has been determined that such facility has a current and valid license, certificate or approval.  In  addition, no  patient  about  to  be  discharged  or conditionally released from a department facility  shall  be  directly  referred  to  any  residential accommodation not subject to licensure, certification or approval by any state  agency  or  department  unless  it  has  been  determined,  after consultation with appropriate  local  agencies,  that  such  residential accommodation complies with all appropriate local zoning, building, fire and safety codes, ordinances and regulations.   2. (I) A patient about to be discharged or conditionally released from a department facility licensed or operated by the office for people with developmental  disabilities  or  from  an inpatient facility operated or licensed by the office of alcoholism and substance abuse services or the office of mental health to an adult home or  residence  for  adults,  as defined  in  section  two  of the social services law, shall be referred only to such home or residence that is consistent  with  that  patient's needs  and  that  operates pursuant to section four hundred sixty of the social services  law,  provided  further  that:  (A)  for  a  department facility   licensed   or   operated   by  the  office  for  people  with developmental disabilities or for an inpatient facility operated by  the office  of  alcoholism  and  substance  abuse  services or the office of mental health, the facility  director  retains  authority  to  determine whether the home, program or residence is consistent with that patient's needs  and  (B) such referral shall be made to the patient's home county whenever possible or appropriate.  (II) No patient about to be discharged or conditionally released  from a department facility licensed or operated by the office for people with developmental  disabilities  or  from  an inpatient facility operated or licensed by the office of alcoholism and substance abuse services or the office of mental health shall be referred to any adult home or residence for adults, as defined in section two of the social services law,  which has  received  an  official written notice from the department of health of: (A) the proposed revocation, suspension or denial of  its  operating certificate;  (B)  the  limitation  of  its  operating  certificate with respect to new admissions; (C) the issuance of a  department  of  health order  or  commissioner  of  health's  order or the seeking of equitable relief pursuant to section four hundred sixty-d of the  social  services law;  (D)  the  proposed assessment of civil penalties for violations of the provisions of subparagraph two of paragraph (b) of subdivision seven of section four hundred sixty-d of the social services law; or placement on the "do not refer list" pursuant to subdivision  fifteen  of  section  four  hundred  sixty-d  of the social services law. Referrals may resume when such enforcement actions are resolved.  (III)  A  community  provider  of mental hygiene services, including a provider of case management services, which serves residents of any home or residence in which  the  department  of  social  services  has  acted pursuant  to subdivision nine of section four hundred sixty-one-c of the social services law, shall assist the operator of such home or residence or the department of social services in efforts to secure an appropriate alternate placement of a resident.  (IV) The commissioner shall promptly refer to the department of social services any serious complaint  received  about  the  care  provided  or health  and  safety conditions in an adult home or residence for adults. The commissioner may as appropriate  assist  the  department  of  social services  in the investigation and resolution of such complaints as well as in the investigation and resolution of any such  complaint  which  is initially received by the department of social services.  (j) The department shall submit to the legislature and the governor by the   first   day   of   January,   nineteen  hundred  seventy-eight,  a comprehensive plan describing those reasonable  steps  taken  or  to  be taken  by  the  department  to  locate former patients who had been in a department facility for a continuous period for two or more years  prior to their discharge or conditional release and who had been discharged or conditionally  released  on  or  after the thirty-first day of December, nineteen hundred seventy without the benefit of a written service  plan. In  each  case  in which the person has been located, the department, in cooperation with appropriate social services officials and directors  of community services, shall make every effort to develop a written service plan  for  such  person  and shall assume the same responsibilities with respect to such person as the department  is  required  to  assume  with respect  to a person who was discharged or conditionally released from a department facility pursuant to a written service plan.  (k) No patient shall be required, as  a  condition  precedent  to  his discharge, to agree to the terms of a written service plan. If after the advisability  of  following  the program proposed in the written service plan has been explained to the patient who has been discharged or who is to be discharged, such patient expresses his objection to  such  program or  any  part thereof, a notation of such objection shall be made in the patient's records.  (l) Nothing in this section shall be construed to prohibit, limit,  or restrict the obligation of the director of a department facility to make necessary expenditures for the board and family care of patients subject to  the  approval of the commissioner, provided that no such expenditure shall be made with respect  to  any  patient  who  is  receiving  public assistance and care under the social services law.  (m)  It  shall be the responsibility of the chief administrator of any facility providing inpatient services subject to licensure by the office of mental health to notify, when appropriate, the local social  services commissioner   and   appropriate   state   and   local   mental   health representatives  when  an  inpatient  is  about  to  be  discharged   or conditionally  released  and  to  provide  to such officials the written service plan developed for such inpatient as required under  subdivision (f) of this section.  (n)  It  shall  be  the  duty  of  directors  of local social services districts and local governmental  units  to  cooperate  with  facilities licensed  or  operated by an office of the department in the preparation and implementation of comprehensive written services plans  as  required by this section.