STATE OF NEW YORK ________________________________________________________________________ 4323 2023-2024 Regular Sessions IN ASSEMBLY February 14, 2023 ___________ Introduced by M. of A. GUNTHER, GOODELL, MORINELLO, NORRIS, WALSH -- read once and referred to the Committee on Alcoholism and Drug Abuse AN ACT to amend the mental hygiene law, in relation to establishing protocols for assisted outpatient treatment for substance abuse The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The mental hygiene law is amended by adding a new article 2 23 to read as follows: 3 ARTICLE 23 4 ASSISTED OUTPATIENT TREATMENT FOR SUBSTANCE ABUSE 5 Section 23.01 Assisted outpatient treatment for substance abuse. 6 23.03 Definitions. 7 23.05 Criteria for assisted outpatient treatment for substance 8 abuse. 9 23.07 Petition to the court. 10 23.09 Service. 11 23.11 Right to counsel. 12 23.13 Hearing. 13 23.15 Written treatment plan. 14 23.17 Disposition. 15 23.19 Petitions for additional periods of treatment; petitions 16 for an order to stay, vacate or modify; and appeals. 17 23.21 Failure to comply with assisted outpatient treatment. 18 23.23 Effect of determination that a person is in need of 19 assisted outpatient treatment. 20 23.25 False petition. 21 23.27 Education and training. 22 23.29 The assisted outpatient treatment for substance abuse 23 advisory council. 24 § 23.01 Assisted outpatient treatment for substance abuse. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD09049-01-3A. 4323 2 1 There is hereby established the assisted outpatient treatment for 2 substance abuse program. This program shall serve individuals with 3 substance use disorders who, due to opioid abuse, require services to 4 prevent them from causing harm to themselves and others. The commission- 5 er, in consultation with the commissioner of the department of health 6 and the commissioner of the office of mental health, and in conjunction 7 with the assisted outpatient treatment for substance abuse advisory 8 council, shall promulgate all rules and regulations necessary to imple- 9 ment the provisions of this article. 10 § 23.03 Definitions. 11 For the purposes of this article, the following definitions shall 12 apply: 13 (a) "Assisted outpatient treatment for substance abuse" shall mean 14 categories of services that have been ordered by the court pursuant to 15 this article. Such treatment shall include case management services to 16 provide care coordination, and may also include any of the following 17 categories of services: substance use disorder services, detoxification 18 as deemed appropriate pursuant to a written treatment plan; medication 19 supported recovery; individual or group therapy; day or partial day 20 programming activities; tests for the presence of alcohol or illegal 21 drugs; supervision of living arrangements; treatment for co-occurring 22 disorders; and any other services prescribed to treat the person's 23 substance use disorder and to assist the person in living and function- 24 ing in the community, or to attempt to prevent a relapse or deteri- 25 oration that may reasonably be predicted to result in the need for 26 hospitalization or serious harm to the person or others. 27 (b) "Assisted outpatient treatment for substance abuse program" shall 28 mean a system to arrange for, and coordinate the provision of, assisted 29 outpatient treatment for substance abuse; to monitor treatment compli- 30 ance by assisted outpatients; to take appropriate steps to address the 31 needs of such individuals; and to ensure compliance with court orders. 32 (c) "Assisted outpatient" shall mean the person under a court order to 33 receive assisted outpatient treatment for substance abuse due to a 34 substance use disorder. 35 (d) "Opioid" shall mean an opiate, opium, opium poppy or poppy straw; 36 and any salt, compound, derivative, or preparation of thereof that is 37 chemically equivalent or identical to such substances. 38 (e) "Subject of the petition" or "subject" shall mean the person who 39 is alleged in a petition, filed pursuant to the provisions of this arti- 40 cle, to meet the criteria for assisted outpatient treatment for 41 substance abuse. 42 (f) "Substance use disorder" shall mean the misuse of, dependence on, 43 or addiction to a legal or illegal opioid leading to effects that are 44 detrimental to the individual's physical and mental health, or the 45 welfare of others. 46 § 23.05 Criteria for assisted outpatient treatment for substance abuse. 47 A person may be ordered to receive assisted outpatient treatment for 48 substance abuse if the court finds that such person: 49 (a) is eighteen years of age or older; and 50 (b) is suffering from a substance use disorder; and 51 (c) is unlikely to survive safely in the community without super- 52 vision, based on a clinical determination; and 53 (d) has a history of lack of compliance with treatment for a substance 54 use disorder, as evidenced by: 55 (1) prior to the filing of the petition, at least twice within the 56 last thirty-six months, his or her substance use disorder has been aA. 4323 3 1 significant factor in necessitating hospitalization in a hospital, as 2 defined in article twenty-eight of the public health law, or receipt of 3 substance abuse treatment services in a correctional facility or a local 4 correctional facility, not including any current period, or period 5 ending within the last six months, during which the person was or is 6 hospitalized or incarcerated; or 7 (2) prior to the filing of the petition, resulted in one or more acts 8 of serious violent behavior toward self or others or threats of, or 9 attempts at, serious physical harm to self or others within the last 10 forty-eight months, not including any current period, or period ending 11 within the last six months, in which the person was or is hospitalized 12 or incarcerated; provided, however, that use of an opioid alone shall 13 not be deemed as satisfying this requirement; and 14 (e) is, as a result of his or her substance abuse, unlikely to volun- 15 tarily participate in substance use disorder services that would enable 16 him or her to live safely in the community; and 17 (f) in view of his or her treatment history and current behavior, is 18 in need of assisted outpatient treatment for substance abuse in order to 19 prevent a relapse or deterioration that would be likely to result in 20 serious harm to the person or others; and 21 (g) is likely to benefit from assisted outpatient treatment for 22 substance abuse. 23 § 23.07 Petition to the court. 24 (a) A petition for an order authorizing assisted outpatient treatment 25 for substance abuse may be filed in the supreme or county court in the 26 county in which the subject of the petition is present or reasonably 27 believed to be present. A petition to obtain an order authorizing 28 assisted outpatient treatment for substance abuse may be initiated only 29 by the following persons: 30 (1) any person eighteen years of age or older with whom the subject of 31 the petition resides; or 32 (2) the parent, spouse, sibling, or child of the subject of the peti- 33 tion who is eighteen years of age or older; or 34 (3) any other person deemed appropriate by the commissioner in regu- 35 lation. 36 (b) The petition shall state: 37 (1) each of the criteria for assisted outpatient treatment for 38 substance abuse as set forth in section 23.05 of this article; 39 (2) facts which support the petitioner's belief that the subject of 40 the petition meets each criterion, provided that the hearing on the 41 petition need not be limited to the stated facts; and 42 (3) that the subject of the petition is present, or is reasonably 43 believed to be present, within the county where such petition is filed. 44 (c) The petition shall be accompanied by an affirmation or affidavit 45 of a physician, who shall not be the petitioner, stating either that: 46 (1) such physician has personally examined the subject of the petition 47 no more than ten days prior to the submission of the petition, recom- 48 mends assisted outpatient treatment for substance abuse for the subject 49 of the petition, and is willing and able to testify at the hearing on 50 the petition; or 51 (2) no more than ten days prior to the filing of the petition, such 52 physician or his or her designee has made appropriate attempts, but has 53 not been successful in eliciting the cooperation of the subject of the 54 petition to submit to an examination; such physician has reason to 55 suspect that the subject of the petition meets the criteria for assisted 56 outpatient treatment for substance abuse; and such physician is willingA. 4323 4 1 and able to examine the subject of the petition and testify at the hear- 2 ing on the petition. 3 (d) In counties with a population of less than seventy-five thousand, 4 the affirmation or affidavit required by subdivision (c) of this section 5 may be made by a physician who is an employee of the office. The office 6 is authorized to make available, at no cost to the county, a qualified 7 physician for the purpose of making such affirmation or affidavit 8 consistent with the provisions of such subdivision. 9 § 23.09 Service. 10 The petitioner shall cause written notice of the petition to be given 11 to the subject of the petition, and a copy thereof to be given 12 personally or by mail to such other persons as the commissioner deems 13 appropriate in regulation. 14 § 23.11 Right to counsel. 15 The subject of the petition shall have the right to be represented by 16 counsel at all stages of a proceeding commenced under this article. 17 § 23.13 Hearing. 18 (a) Upon receipt of the petition, the court shall fix the date for a 19 hearing. Such date shall be no later than three days from the date such 20 petition is received by the court, excluding Saturdays, Sundays and 21 holidays. Adjournments shall be permitted only for good cause shown. In 22 granting adjournments, the court shall consider the need for further 23 examination by a physician or the potential need to provide assisted 24 outpatient treatment for substance abuse expeditiously. The court shall 25 cause the subject of the petition, any other person receiving notice 26 pursuant to section 23.09 of this article, the petitioner, the physician 27 whose affirmation or affidavit accompanied the petition, and such other 28 persons as the court may determine to be advised of such date. Upon such 29 date, or upon such other date to which the proceeding may be adjourned, 30 the court shall hear testimony and, if it be deemed advisable and the 31 subject of the petition is available, examine the subject of the peti- 32 tion in or out of court. If the subject of the petition does not appear 33 at the hearing, and appropriate attempts to elicit the attendance of the 34 subject have failed, the court may conduct the hearing in the subject's 35 absence. In such case, the court shall set forth the factual basis for 36 conducting the hearing without the presence of the subject of the peti- 37 tion. 38 (b) The court shall not order assisted outpatient treatment for 39 substance abuse unless an examining physician, who recommends assisted 40 outpatient treatment for substance abuse and has personally examined the 41 subject of the petition no more than six months before the filing of the 42 petition, testifies in person at the hearing. Such physician shall state 43 the facts and clinical determinations that support the allegation that 44 the subject of the petition meets each of the criteria for assisted 45 outpatient treatment for substance abuse. The commissioner shall in 46 regulation address instances in which the subject of the petition 47 refuses examination by a physician. 48 (c) A physician who testifies pursuant to subdivision (b) of this 49 section shall state: (i) the facts that support the allegation that the 50 subject meets each of the criteria for assisted outpatient treatment for 51 substance abuse, (ii) that the treatment is the least restrictive alter- 52 native, (iii) the recommended assisted outpatient treatment for 53 substance abuse, and (iv) the rationale for the recommended assisted 54 outpatient treatment for substance abuse. If the recommended assisted 55 outpatient treatment for substance abuse includes medication supportedA. 4323 5 1 recovery, such physician's testimony shall provide such details as the 2 commissioner shall require in regulation. 3 (d) The subject of the petition shall be afforded an opportunity to 4 present evidence, to call witnesses on his or her behalf, and to cross- 5 examine adverse witnesses. 6 § 23.15 Written treatment plan. 7 (a) The court shall not order assisted outpatient treatment for 8 substance abuse unless a physician develops and provides to the court a 9 proposed written treatment plan, in accordance with regulations promul- 10 gated by the commissioner. The written treatment plan shall include case 11 management services to provide care coordination. The written treatment 12 plan also shall include all categories of services that such physician 13 recommends that the subject of the petition receive. All substance abuse 14 programs shall be notified regarding their inclusion in the written 15 treatment plan. 16 (b) The physician appointed to develop the written treatment plan 17 shall provide the following persons with an opportunity to actively 18 participate in the development of such plan: the subject of the peti- 19 tion; the treating physician, if any; and upon the request of the 20 subject of the petition, an individual significant to the subject 21 including any relative, close friend or individual otherwise concerned 22 with the welfare of the subject. If the subject of the petition has 23 executed a health care proxy, the appointed physician shall consider any 24 directions included in such proxy in developing the written treatment 25 plan. 26 (c) The court shall not order assisted outpatient treatment for 27 substance abuse unless a physician who developed such plan testifies to 28 explain the proposed written treatment plan. Such physician shall state 29 the categories of assisted outpatient treatment for substance abuse 30 recommended, the rationale for each such category, facts which establish 31 that such treatment is the least restrictive alternative, and any other 32 information required by the commissioner in regulation. If the subject 33 of the petition has executed a health care proxy, such physician shall 34 state the consideration given to any directions included in such proxy 35 in developing the written treatment plan. 36 § 23.17 Disposition. 37 (a) If after hearing all relevant evidence, the court does not find by 38 clear and convincing evidence that the subject of the petition meets the 39 criteria for assisted outpatient treatment for substance abuse, the 40 court shall dismiss the petition. 41 (b) If after hearing all relevant evidence, the court finds by clear 42 and convincing evidence that the subject of the petition meets the 43 criteria for assisted outpatient treatment for substance abuse, and 44 there is no appropriate and feasible less restrictive alternative, the 45 court may order the subject to receive assisted outpatient treatment for 46 substance abuse for an initial period not to exceed six months. In 47 fashioning the order, the court shall specifically make findings by 48 clear and convincing evidence that the proposed treatment is the least 49 restrictive treatment appropriate and feasible for the subject. The 50 order shall state an assisted outpatient treatment for substance abuse 51 plan, which shall include all categories of assisted outpatient treat- 52 ment for substance abuse that the assisted outpatient is to receive, but 53 shall not include any such category that has not been recommended in 54 both the proposed written treatment plan and the testimony provided to 55 the court pursuant to section 23.15 of this article.A. 4323 6 1 (c) The commissioner shall establish in regulation procedures for the 2 provision or arrangement for all categories of assisted outpatient 3 treatment for substance abuse to the assisted outpatient throughout the 4 period of the order. 5 (d) The director shall cause a copy of any court order issued pursuant 6 to this section to be served personally, or by mail, facsimile or elec- 7 tronic means, upon the assisted outpatient, or anyone acting on the 8 assisted outpatient's behalf, the original petitioner, identified 9 service providers, and all others entitled to notice under section 23.09 10 of this article. 11 § 23.19 Petitions for additional periods of treatment; petitions for an 12 order to stay, vacate or modify; and appeals. 13 The commissioner shall establish in regulation such rules and proce- 14 dures to ensure that assisted outpatients: receive appropriate substance 15 use disorder services; are afforded all rights and remedies available by 16 law with respect to the order for assisted outpatient treatment for 17 substance abuse, including the ability to petition the court to stay, 18 vacate or modify the order; and are given the opportunity to appeal an 19 order issued pursuant to this article. 20 § 23.21 Failure to comply with assisted outpatient treatment. 21 Where the subject fails to comply with the assisted outpatient for 22 substance abuse treatment plan set forth in accordance with section 23 23.15 of this article, the subject shall be brought to a facility or 24 treatment program for emergency services pursuant to section 22.09 of 25 this title. 26 § 23.23 Effect of determination that a person is in need of assisted 27 outpatient treatment. 28 The determination by a court that a person is in need of assisted 29 outpatient treatment for substance abuse shall not be construed as or 30 deemed to be a determination that such person is incapacitated pursuant 31 to article eighty-one of this chapter. 32 § 23.25 False petition. 33 A person making a false statement or providing false information or 34 false testimony in a petition or hearing under this section shall be 35 subject to criminal prosecution pursuant to article one hundred seven- 36 ty-five or article two hundred ten of the penal law. 37 § 23.27 Education and training. 38 (a) The office of alcoholism and substance abuse services, in consul- 39 tation with the office of court administration, shall prepare educa- 40 tional and training materials on the use of this section, which shall be 41 made available to local governmental units, providers of services, judg- 42 es, court personnel, law enforcement officials and the general public. 43 (b) The office, in consultation with the office of court adminis- 44 tration, shall establish a substance abuse training program for supreme 45 and county court judges and court personnel. Such training shall focus 46 on the use of this section and generally address issues relating to 47 heroin and opioid addiction. 48 § 23.29 The assisted outpatient treatment for substance abuse advisory 49 council. 50 (a) There is hereby created the assisted outpatient treatment for 51 substance abuse advisory council. The council shall consist of: the 52 commissioner, or his or her designee; the commissioner of mental health, 53 or his or her designee; the commissioner of health, or his or her desig- 54 nee; and fourteen members appointed by the governor by and with the 55 advice and consent of the senate. The governor shall designate one of 56 the appointed members of the council as chair, who shall serve as suchA. 4323 7 1 for a three year term. Membership shall be representative of the public, 2 shall have broad programmatic and geographic representation, shall 3 include both not-for-profit and proprietary providers of substance abuse 4 services, and shall include: 5 (1) Five consumer representatives, including persons who are recover- 6 ing from substance use disorders, their family members, and patient 7 advocates. 8 (2) Five representatives of providers of services to persons with 9 substance use disorders, including but not limited to representatives of 10 free standing substance abuse facilities, general hospitals, residential 11 facilities for persons who abuse or are dependent upon opioids, metha- 12 done maintenance programs, and outpatient facilities for persons who 13 abuse or are dependent on opioids. Of these appointments, at least one 14 representative must be a physician. 15 (3) Four representatives of law enforcement, local governments, and 16 public and private payors of alcoholism substance abuse treatment. 17 (b) Members shall be appointed for terms of three years, provided 18 however, that of the members first appointed, one-third shall be 19 appointed for one year terms and one-third shall be appointed for two 20 year terms. Vacancies shall be filled in the same manner as original 21 appointments for the remainder of any unexpired term. 22 (c) The council shall meet at the request of its chair or the commis- 23 sioner, but no less frequently than four times in each full calendar 24 year. 25 (d) The council shall provide recommendations to the commissioner 26 regarding policies, rules and regulations necessary to implement the 27 assisted outpatient treatment for substance abuse program according to 28 this article. 29 § 2. This act shall take effect on the one hundred twentieth day after 30 it shall have become a law. Effective immediately, the addition, amend- 31 ment and/or repeal of any rule or regulation necessary for the implemen- 32 tation of this act on its effective date are authorized to be made and 33 completed on or before such effective date.