N.Y. Mental Hygiene Law § 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, 2027

* 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, 2027

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; with the consent of

the patient, a representative of a community provider of mental health

services, including a provider of case management services, that

maintains the patient on its caseload, if applicable, and local programs

that provide peer supports and services, if available; 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, an individual

significant 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. With the consent of the patient and

consistent with section 33.13 of this chapter, such service plan may be

provided to a parent or parents, any relative, close friend, or

individual otherwise concerned with the welfare of the patient.

(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.

7. For patients at psychiatric centers or psychiatric inpatient

services subject to licensure by the office of mental health, a

screening to determine the patient's suicide, violence, and substance

use risk to be incorporated into safety planning for the patient's

discharge plan. Individuals with an elevated risk of self-harm or

suicide shall have an individualized community suicide safety plan

completed before discharge and such plan shall be provided to the

patient's aftercare providers.

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.

(g-1) For patients at psychiatric centers or psychiatric inpatient

services subject to licensure by the office, 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, and consistent with

section 33.13 of this chapter:

1. to provide a discharge summary to the service provider or providers

responsible for the patient's care after discharge under the service

plan as described in subdivisions (f) and (g) of this section. Such

discharge summary shall include relevant clinical information and

post-discharge treatment recommendations in accordance with regulations

promulgated by the commissioner;

2. to obtain contact information of the patient, if possible, and

confirm a follow-up appointment has been scheduled for the patient with

the appropriate service provider or providers to occur within seven days

of discharge. If, after making diligent efforts, the facility cannot

identify an aftercare provider with an available appointment within

seven days, the facility shall document its efforts and schedule the

appointment for as soon as possible thereafter. Individuals who are

leaving the facility against medical advice or who decline aftercare

services shall be provided with information about available treatment

options, and have an appointment scheduled whenever possible; and

3. for a patient with an elevated risk of violence, to work

collaboratively with the director of community service of the county

where the patient resides, if available, such patient's outpatient

treatment providers, residential providers, if applicable, and school,

if applicable, to incorporate strategies to address violence risk

factors and access to weapons into their overall discharge plan.

(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.

(o) Service plans and discharge summaries for individuals with complex

needs at psychiatric centers or psychiatric inpatient services subject

to licensure by the office. For purposes of this subdivision, an

"individual or patient with complex needs" shall be defined by

regulations of the commissioner. The facility shall comply with all

other provisions of this section, in addition to the following:

1. service plans and discharge summaries shall be provided in writing

to the patient;

2. referrals to services described in service plans shall be

facilitated at the time of discharge;

3. a verbal clinical sign-out shall be provided on or before the day

of discharge to the receiving outpatient treatment program and if

applicable, the licensed residential program;

4. the patient's discharge plan shall be communicated to the

designated post-discharge care manager, if applicable, to facilitate

continuity of care and service coordination; and

5. referrals for care management services or community-based services

and peer based programs shall be facilitated, as clinically appropriate

and in accordance with regulations promulgated by the commissioner.