N.Y. Mental Hygiene Law § 13.09: Powers of the office and commissioner; how exercised

§ 13.09 Powers of the office and commissioner; how exercised.

(a) The commissioner shall exercise all powers vested in the office.

He or she may delegate any function, power, or duty assigned to him or

her or to the office to any officer or employee of the office, unless

otherwise provided by law. He or she may enter into agreements with

other commissioners of the department in order to ensure that programs

and services are provided for all of the mentally disabled.

(b) The commissioner shall adopt rules and regulations necessary and

proper to implement any matter under his jurisdiction. In promulgating

rules and regulations, the commissioner shall comply with the

requirements of subdivision (e) of section 13.05 of this article.

(c) The commissioner and directors of office facilities may request

and upon such request the coroner, coroner's physician or medical

examiner shall provide to such persons access to original autopsy

slides, tissue materials and specimens derived from any autopsy or

inquiry with respect to the death of a patient or resident in a mental

hygiene facility, as defined in subdivision two of section five hundred

fifty of the executive law. Such original materials shall be preserved

intact, except for unavoidable changes due to necessary scientific

testing and shall be returned to the coroner, coroner's physician or

medical examiner.

(c-1) The commissioner shall accept custody of a juvenile under an

order issued by the family court pursuant to the provisions of section

322.2 of the family court act. He or she may place the juvenile in any

appropriate facility or program under his or her jurisdiction, but he or

she shall comply with any order requiring treatment in a residential

facility made pursuant to paragraph (c) of subdivision five of section

322.2 of the family court act, unless, after a hearing held in

accordance with subdivision seven of section 322.2 of the family court

act, the court modifies the order. In determining the appropriate

placement, the commissioner shall be furnished with a copy of the

findings of the court pursuant to subdivision four or five of section

322.2 of the family court act and shall consider the nature of the act

alleged in such findings and the level of the juvenile's mental

disability. The commissioner shall review the condition of the juvenile

in accordance with the requirements of section 322.2 of the family court

act and he or she may petition the family court at any time for any

relief authorized by such section.

(d) The commissioner shall work cooperatively with the commissioner of

the office of mental health and the commissioner of the office of

temporary and disability assistance to assist the commissioner of

education in furnishing integrated employment services to individuals

with severe disabilities, including the development of an integrated

employment implementation plan, pursuant to article twenty-one of the

education law.

(e) The commissioner shall promulgate rules and regulations to address

the communications needs of non-English speaking individuals seeking or

receiving services in facilities operated or licensed by the office in

order to facilitate their access to services. Such rules and regulations

shall include, but not be limited to, reasonable means to accommodate

the language capabilities and preferences of non-English speaking

individuals in such facilities where a significant number of non-English

speaking individuals seek or receive services.

(f) Notwithstanding any other law, rule or regulation, on request by a

representative of a cemetery organization or funeral establishment, the

commissioner and directors of office facilities shall release to the

representative the name, date of birth, or date of death of a person who

was a patient at the facility when the person died, unless the person or

the person's guardian provided written instructions to the facility not

to release such person's name or dates of birth and death. A

representative of a cemetery organization or a funeral establishment may

use a name or date released under this subdivision only for the purpose

of inscribing the name or date on a grave marker.

(g) (1) The commissioner, in cooperation with other applicable state

agencies, shall collect, retain or modify data or records, and shall

transmit such data or records to: (i) the division of criminal justice

services, or to the criminal justice information services division of

the federal bureau of investigation, for the purposes of responding to

queries to the national instant criminal background check system

regarding attempts to purchase or otherwise take possession of firearms,

as defined in 18 USC 921(a)(3), in accordance with applicable federal

laws or regulations, or (ii) to the division of criminal justice

services, for the purposes of determining whether a license issued

pursuant to section 400.00 of the penal law should be denied, suspended

or revoked, under subdivision eleven of such section, or for determining

whether a person is no longer permitted under federal or state law to

possess a firearm. Such records shall include only names and other

non-clinical identifying information of persons who have had a guardian

appointed for them pursuant to any provision of state law, based on a

determination that as a result of marked subnormal intelligence, mental

illness, incapacity, condition or disease, they lack the mental capacity

to contract or manage their own affairs, and persons who have been

involuntarily committed to a facility pursuant to article fifteen of

this chapter, or article seven hundred thirty or section 330.20 of the

criminal procedure law or sections 322.2 or 353.4 of the family court

act.

(2) The commissioner shall establish within the office for people with

developmental disabilities an administrative process to permit a person

who has been or may be disqualified from possessing such a firearm

pursuant to 18 USC 922(4)(d), or who has been or may be disqualified

from continuing to have a license to carry, possess, repair, or dispose

of a firearm under section 400.00 of the penal law because such person

was involuntarily committed or civilly confined to a facility under the

jurisdiction of the commissioner, to petition for relief from that

disability where such person's record and reputation are such that such

person will not be likely to act in a manner dangerous to public safety

and where the granting of the relief would not be contrary to public

safety. The commissioner shall promulgate regulations to establish the

relief from disabilities program, which shall include, but not be

limited to, provisions providing for: (i) an opportunity for a

disqualified person to petition for relief in writing; (ii) the

authority for the agency to require that the petitioner undergo a

clinical evaluation and risk assessment; and (iii) a requirement that

the agency issue a decision in writing explaining the reasons for a

denial or grant of relief. The denial of a petition for relief from

disabilities may be reviewed de novo pursuant to the proceedings under

article seventy-eight of the civil practice law and rules.

(h) The commissioner shall be authorized to have access to criminal

history information, as defined in paragraph (c) of subdivision one of

section eight hundred forty-five-b of the executive law, contained in

the central data facility established by the division of criminal

justice services, upon such terms and conditions as the commissioner and

the commissioner of the division of criminal justice services shall

agree. The report containing such criminal history information may be

summarized for inclusion in the individual's clinical record, however,

such report shall be destroyed within fourteen days of its receipt. Such

information shall be used for purposes of making decisions regarding

care and treatment, health and safety, privileges and discharge planning

for individuals admitted to or retained in a school, as defined in

section 15.03 of this title, operated by the office. The commissioner

shall promulgate standards regarding the use of such information, which

may include, but not be limited to, consideration of the type of offense

and the date of conviction, and its relevance, if any, to care and

treatment, health and safety and discharge planning. Individuals shall

be given written notice that their criminal history information will be

obtained by the school, that the opportunity exists to request such

criminal history information and seek the correction of any inaccurate

criminal history information in accordance with the regulations of the

division of criminal justice services, and that the opportunity exists

to challenge the accuracy of such information maintained in the

individual's clinical record to the extent authorized by section 33.16

of this chapter. Such information shall be kept confidential to the

extent required under applicable federal and state law, including

section 33.13 of this chapter.

(i) The commissioner, in consultation with the commissioner of mental

health, shall develop and implement a public awareness campaign that

combats the discrimination, stigma and stereotyping of individuals with

developmental disabilities across the state. Such campaign shall utilize

public forums, social media and mass media, including but not limited to

internet, radio, and print advertising and shall include educational

materials and information on the office's website. The campaign shall be

tailored to educate the general public about developmental disabilities

and shall also highlight the accomplishments and contributions of

individuals with developmental disabilities to the state and their

respective communities. The office shall consult with stakeholders and

consumer advocates to ensure such campaign is culturally competent and

linguistically appropriate. Such campaign shall end on December

thirty-first, two thousand twenty-three.