2023 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.