NYAPRS Note: Today, memos of opposition from 15 top state mental health/advocacy groups to proposals to expand Kendra’s Law and make it permanent are being shared with every member of the NYS Legislature and Administration officials. The article below will also be included.
NYS Mental Health Community Divided over AOT Legislation
Mental Health Weekly May 14, 2012
The mental health provider and advocacy community in NYS say they are looking forward to a number of upcoming initiatives that would transform BH services and offer consumers with mental health issues more coordinated and effective care.
Pending legislation that would extend New York State’s controversial assisted outpatient treatment law (AOT) has sparked debate in the mental health community. Opponents say the bills could potentially negate major policy initiatives currently underway, such as health homes and improved hospital and community discharge planning, and other efforts to provide care management to consumers with behavioral health needs.
The identical legislation, A06987A and S 4881-A, introduced by Assembly member Aileen Gunther and Sen. Catherine Young, would enhance and extend Kendra’s Law. The legislation would establish a procedure to ensure that reports of a person who may be in need of assisted outpatient treatment, including those received from family and community members, are investigated in a timely manner and where appropriate, result in the filing of petitions for AOT.
Kendra’s Law, effective since November 1999, is a New York State law that grants judges the authority to issue orders that require people who meet certain criteria to regularly undergo psychiatric treatment. The legislation is named for Kendra Webdale who was killed in 1999 by a man with schizophrenia who pushed her into the path of an approaching train in New York City.
In 2010 the New York State legislature rejected efforts to expand or make the Kendra’s law permanent and instead extended the program for another five years. The intent was to allow for the greater use of voluntary approaches, especially to communities of color (see MHW, Aug. 9, 2010).
“Forced treatment is a false solution,” Harvey Rosenthal, executive director of the New York Association of Psychiatric Rehabilitation Services (NYAPRS), told MHW. “There has been very little support for Kendra Law’s expansion and permanence among advocates for the last few years, including this year,” he said.
“It seems as if once again some are capitalizing on tragic encounters in New York City between people with psychiatric disabilities and the police,” said Rosenthal. He cited a recent incident in Queens, N.Y., involving a woman with a psychiatric diagnosis who was allegedly suffocated by police while they attempted to handcuff her. The police had been called to the home by her family, who had requested medical attention, according to local news reports.
The tragedy and other similar ones in the city call for more improved services for consumers with mental illness, he said, adding that they are 11 times more apt to be victims of violence. The pending legislation is a contrast to many of the initiatives that Governor Andrew Cuomo is trying to implement, such as Medicaid health homes, and regional behavioral health organizations to improve hospital discharge and community follow-up services, he said. “This is a political dance; a distraction to real solutions,” Rosenthal said. The governor on May 7 also created a Justice Center, a new agency to investigate reports of abuse and neglect, he noted.
The Coalition of Behavioral Health Agencies, Inc. supported the extension of Kendra’s Law to 2015, said Philip Saperia, executive director of the coalition. The idea was for the state to study its efficacy and determine whether the law should continue. “This is a heavy handed bill,” Saperia told MHW. “The bill would negate the state’s current reform efforts, particularly complex care coordination initiatives.”
“Now that Gov. Cuomo has come in and has begun to implement health homes, and other initiatives to support consumers with mental illness, why would we need anything more stringent?” noted Saperia. The legislation runs contrary to a number of recommendations established by the state’s Medicaid Redesign Team, he said.
The Medicaid Redesign Team Behavioral Health Reform Work Group was charged by the governor with examining opportunities for the co-location of services and to provide recommendations to integrate medical and behavioral healthcare for populations with serious mental illness (see MHW, Feb. 7, 2011).
“The legislation would cost money at a time when the behavioral health world is already without funds, and agencies have stripped personnel,” said Saperia. “It doesn’t make sense. Why don’t we wait until 2015 when it comes up again for renewal?” “The legislation represents a new Kendra’s Law that would essentially take over the original Kendra’s Law and make it much more stringent and difficult to implement,” said Saperia. “The pending legislation would take away the discretion of the physician or clinician and put the decision for AOT into the hands of family members and social acquaintances that may or may not have good judgment,” said Saperia.
Complex legal issue
The proposed legislation represents a complex legal issue, said Kelly A. Hansen, executive director of the New York State Conference of Local Mental Hygiene Directors. “From the legal standpoint, the bill would violate legal protections in place for people, such as allowing currently confidential health information protected under HIPAA [Health Insurance Portability and Accountability Act] to be disclosed without the patient’s approval,” Hansen
The proposed bill also ignores the fiscal impact to counties, Hansen said. When Kendra’s Law was first enacted, it came with a significant amount of new service dollars that are no longer available to localities, Hansen said. “The new services and the staff necessary to carry out the bill would require an infusion of new money that just isn’t there,” she added.
“The legislation circumvents the major policy initiatives aimed at providing care management to people in need,” said Hansen, citing the state’s current transformation efforts.
“Kendra’s Law has reduced violence, arrest, and incarceration of people with mental illness,” D.J. Jaffee, executive director of Mental Illness Policy Org., a “Think-Tank” founded in 2011, told MHW. “But there are giant cracks in it that put people with mental illness and the public at risk,” said Jaffee. “Had these cracks been closed, the recent stabbing of a police officer by a man not off his treatment for mental illness might not have happened.”
Very few people with mental illness in New York State are receiving access to services,” Jaffee said. Consumers with mental illness are being released from prisons and jails, for example, without being properly evaluated before their release, to determine if they may need mandatory treatment, said Jaffee. There is no opportunity to see if they would benefit from community treatment, he said.
The National Alliance on Mental Illness-NYS has long supported the state’s AOT, said Donald Capone, NAMI-NYS executive director. “One of the points we are in favor of is the amendment to the original legislation that would [ensure] that persons reported to be in need of outpatient assisted treatment by a family member is investigated in a timely manner,” Capone told MHW. The state’s legislature will be in session for several more weeks before they learn the outcome of the bill, he said.