N.Y. Executive Law § 509: Transfers to state hospitals and schools in the department of mental hygiene

§ 509. Transfers to state hospitals and schools in the department of

mental hygiene. 1. (a) The director of the division for youth may apply

for the transfer of any child in the care of the division to the

department of mental hygiene for care and treatment in a state hospital

or school under the jurisdiction of said department whenever it appears

to the satisfaction of the director of the division:

(i) that such child is living with mental illness or a developmental

disability and will substantially benefit from care and treatment in

such a state school or hospital; and

(ii) that the interests of the state will be best served thereby.

(b) The office for people with developmental disabilities may receive,

treat and otherwise care for such a child pursuant to article nine or

fifteen of the mental hygiene law if suitable for admission thereunder.

2. (a) Except in the case of an emergency requiring immediate

admission to a state hospital pursuant to the mental hygiene law, a

child in the care of the division may be transferred:

(i) after notice thereof has been given to the child to be

transferred, his parents or legal guardian, and his attorney of record,

if any; and

(ii) after he has been afforded an opportunity to be heard with

respect thereto at a hearing conducted by an impartial hearing officer

and to be represented at such hearing by counsel. If in the judgment of

the division such child is financially unable to obtain counsel, the

division shall pay such counsel's fees as shall be necessary to assure

adequate representation for such child.

(b) The hearing officer may accept the written waiver by a child of

his right to a hearing, provided the child knowingly and voluntarily

executed such waiver with the advice of counsel.

3. A child transferred pursuant to this section:

(a) shall continue to be under the general care and supervision of the

division for youth except that he shall be temporarily cared for and

treated by the institution to which the transfer is made.

(b) shall be subject to the laws and rules pertaining to the

institution to which he is admitted; and

(c) shall be entitled to the same rights and procedures under the

mental hygiene law as any other person admitted or converted in status

thereunder.

4. Whenever the commissioner of mental health or the director of a

residential treatment facility for children and youth, or the

commissioner of developmental disabilities finds that care and treatment

of a child transferred pursuant to this section or section 353.4 of the

family court act is no longer suitable under the mental hygiene law, he

or she shall forthwith so certify and discharge the child to the custody

of the child himself or herself, his or her parents, his or her legal

guardian, the local department of social services or the office of

children and family services, as appropriate, except that so long as

there is a valid order of the family court placing the child with the

office of children and family services, or a valid order of a criminal

court sentencing a child to the office of children and family services,

the child shall be returned to the care and custody of the office of

children and family services. The duration of the placement or sentence

with the such office of a child transferred pursuant to this section

shall not be extended or increased by reason of any such transfer.

5. All expenses incident to a transfer under this section shall be

borne by the division, subject to the provisions of title four of this

article. All expenses for the care and treatment of a child transferred

to the department of mental hygiene pursuant to this section shall be

borne by the department of mental hygiene.

6. An application by the director for admission of a child to a state

hospital shall be considered an application for voluntary admission in

accordance with section 9.13 of the mental hygiene law if such child is

under the age of sixteen or if the child is sixteen years of age or

older and has waived his right to a hearing in accordance with

subdivision two of this section. An application by the director for

admission to a state hospital of a child sixteen years of age or older

who has not knowingly and voluntarily consented to such application in

accordance with paragraph (b) of subdivision two of this section shall

be considered an application for involuntary admission in accordance

with section 9.27 of the mental hygiene law.

7. The director may, following the procedures outlined in this section

and subject to the requirements of section 9.51 of the mental hygiene

law, apply for the transfer of any child in the care of the division who

has not been sentenced as a juvenile offender pursuant to section 70.05

of the penal law, and who is not subject to a restrictive placement

pursuant to section 353.5 of the family court act, to a residential

treatment facility for children and youth.

8. Notwithstanding any other provision of law to the contrary,

juvenile offenders shall be transferred only to a facility under the

jurisdiction of the office of mental health specially designed for the

care and treatment of juvenile offenders which is characterized by

physically restricting construction, hardware and procedures.