Honorable Sheldon Silver
Speaker of the Assembly
Legislative Office Building, Room 932
Albany, New York 12248

Dear Speaker Silver:

I am pleased to submit to you the 2002 Annual Report of the Assembly Committee on Mental Health, Mental Retardation and Developmental Disabilities.

On behalf of myself and the other members of the Committee, I would like to express my sincere appreciation for your support and encouragement throughout the year.

Martin A. Luster
Chair

1. INTRODUCTION
2. COMMITTEE ACTIVITIES

1. 2002-2003 STATE BUDGET
2. SECTION 5.07 OF THE MENTAL HYGIENE LAW
3. ELECTROCONVULSIVE THERAPY
1. Resolution to Congress
2. Informed Consent
3. Temporary Advisory Council on Electroconvulsive Therapy
4. Oversight and Regulation of Electroconvulsive Therapy
5. Electroconvulsive Therapy Facilities
4. CONSUMER CARE ISSUES
1. Medicaid Neutrality Cap
2. Familial Dysautonomia
3. Mental Disability Public Understanding and Acceptance
4. Fee Liability
5. CHILDREN'S CARE ISSUES
1. Children's Bill of Rights
2. Children's Right to Treatment
3. Children's Coordinated Services Initiative (CCSI)
6. SERVICE DELIVERY, OVERSIGHT AND MANAGEMENT
1. Sealed Files
2. Commission on Quality of Care Oversight
3. Waiting Lists
4. Authority for Mental Hygiene Legal Services
7. OTHER PROGRAM AREAS
1. Community Mental Health Reinvestment Act
2. Fair Insurance Treatment Act
3. Adult Homes
4. Work and Wellness Act
8. OUTLOOK FOR 2003
1. Community Reinvestment Act
2. Section 5.07 of the Mental Hygiene Law
3. Adult Homes
4. Assisted Outpatient Treatment
5. Fair Insurance Treatment
6. Presumptive Medicaid Eligibility
7. Medicaid Neutrality Cap
8. Incarcerated Mentally Ill

APPENDIX A - 2002 Summary of Action on Bills

APPENDIX B - 2002 Public Hearings

APPENDIX C - 2002 Reports

The New York State Assembly Standing Committee on Mental Health, Mental Retardation and Developmental Disabilities serves as the focus of Assembly efforts to ensure quality care, treatment, and services to persons with mental illness, mental retardation and developmental disabilities.

Consistent with that role, the Committee is responsible for reviewing, developing, and recommending mental hygiene legislation; working with the Assembly Ways and Means Committee to consider proposed appropriations and reappropriations for the Office of Mental Health (OMH), the Office of Mental Retardation and Developmental Disabilities (OMRDD), the Commission on Quality of Care for the Mentally Disabled (CQC), and the Developmental Disabilities Planning Council (DDPC); and monitoring the activities of OMH, OMRDD, CQC, DDPC, the Mental Hygiene Legal Service (MHLS) and all programs licensed or operated by these agencies.

During the 2002 Session, the Committee's focus was on improving the services available while supporting consumers, providers, and families in the mental hygiene system as it wrestled with the difficulties imposed by the Governor associated with his failure to fulfill his constitutional responsibilities. Article IV, Section 3 of the New York State Constitution states that, "The governor...shall expedite all such measures as may be resolved upon by the legislature, and shall take care that the laws are faithfully executed." Since first taking office, Governor Pataki has not complied with the statutory planning and reporting requirements of the Mental Hygiene Law. The result has been a disjointed, top-down planning process that is inefficient, facilitated wasteful use of public resources, and hindered the ability of the Legislature to focus the use of public resources to meet the needs of the mentally disabled.

The Governor allowed the Community Reinvestment Act to expire in 2001 and removed over $60 million in State general funds from the mental health service system during the current fiscal year. Even though the Governor did not propose the reinvestment of savings from the reduction of inpatient census, including those related to the possible facility closings and consolidations, the Committee, in conjunction with the Assembly Ways and Means Committee, worked with the Senate to pass legislation ensuring that savings resulting from the downsizing of the State-operated mental health system would be reinvested into community-based programs. Unfortunately, the Governor vetoed this legislation.

The failure of the Governor to faithfully execute the laws of the State of New York and to expeditiously implement the laws approved by the Legislature created a public health crisis and is a violation of the public trust. Promises made by the people of this State in the Constitution and through their elected representatives in the Legislature to help the mentally disabled have been broken. The failure of the Governor to comply with the planning and reporting requirements of the Mental Hygiene Law and the removal of significant public resources from the mental health system by the Governor has severely limited the ability of the State to develop alternative residential and service delivery programs for mentally ill persons in their home communities. As a result, thousands of mentally ill persons suffered indignities and abuse, and hundreds of others have succumbed to untimely deaths due to a dysfunctional mental health system.

The Committee is committed to holding the Governor accountable for complying with the statutory requirements of the Mental Hygiene Law. The Committee also remains committed to capturing all savings from the downsizing of State psychiatric centers and reallocating those resources into communities across the State to facilitate the ability of the mentally disabled to enjoy dignified, stigma-free lives in their home communities.

This commitment led the Committee and the Committee on Alcoholism and Drug Abuse to hold public hearings in Albany, Buffalo and New York City in 2001 and early 2002 to review the Governor's compliance with the statutory planning requirements of Section 5.07 of the Mental Hygiene Law. Section 5.07 was established by the Legislature to help ensure a bottom-up planning process that would enable the Legislature to establish policy and budgetary priorities responsive to the needs of the various regions of the State. After a review of written and verbal testimony, the Committee proposed legislation which was passed by the Assembly, to strengthen the statutory planning process and ensure the Offices within DMH work closely to address the needs of the multiply disabled.

This commitment also led the Committee and the Committees on Aging, Health, and Oversight, Analysis and Investigation to hold public hearings on the public health crisis in adult homes. The conditions in adult homes have been a matter of concern to the Legislature for many years. Legislation was introduced by the Assembly to respond to issues of concern identified by the Committees. The Assembly chose not to pass this legislation, opting instead to work with the Executive to craft bipartisan legislation after receiving an invitation to participate in the Governor's Adult Home Work Group and assurances of cooperation from the commissioners of the Departments of Aging and Health, the Office of Mental Health, and the Chairman of the Commission on Quality of Care for the Mentally Disabled at its public hearing in June, 2002. Unfortunately, the Governor did not follow through with this invitation to the Legislature to participate in the Adult Home Work Group, nor did his Executive agencies cooperate with the Assembly in its ongoing review.

As part of its focus on improving services available to consumers, the Committee held public hearings in 2001 on the use of Electroconvulsive Therapy (ECT) on patients in New York State. As a result of Committee staff research and testimony from the hearings, a series of bills were passed by the Assembly to address issues identified.

The Committee considered 80 bills during the 2002 Legislative Session. Of that number, 21 were reported for further consideration.

The following is a detailed report of the Committee's activities during the 2002 session and a preview of some particularly important issues to be addressed during 2003.

A.  2002-2003 STATE BUDGET

Governor Pataki released his 2002-2003 State budget proposal in January, 2002. The Governor made no mention of the health care crisis in the adult home industry. Governor Pataki did not recommend the extension or replacement of the Community Mental Health Reinvestment Act (Chapter 723 of the Laws of 1993) which expired on September 30, 2001. Instead, he proposed the closure of 395 State-operated psychiatric center beds and removed over $60 million in general fund support from the mental health system.

Several factors have combined over the past year to highlight the stress on the community-based mental health service system. The mental health system will be coping with the post-traumatic stress related to the destruction of the World Trade Center by terrorists for many years to come. The dismal conditions in adult homes which house thousands of mentally ill adults and the historic increase of homeless individuals and families, a significant proportion of whom are mentally disabled, dramatically illustrate the need for additional residential and support services for the mentally ill in the communities across New York State.

The Committee drafted legislation and, working with the Ways and Means Committee and the Senate, coordinated the passage of legislation (A.11604A/S.7560) that would have helped stabilize the community-based mental health system by reinvesting savings from the downsizing of the State-operated psychiatric centers into community-based programs. Governor Pataki vetoed this legislation.

The Legislature, with Committee support, did provide for a three percent cost-of-living adjustment and a 10 percent Medicaid rate increase for community-based mental health service providers, effective in December, 2002. Governor Pataki approved of this action.

The Committee will continue to monitor State revenues and ensure that, consistent with the Assembly's commitment to reinvestment and pursuant to the planning requirements of Section 5.07 of the Mental Hygiene Law, a fair share of that money will go to address the needs of those individuals with mental illness, mental retardation and developmental disabilities.

B.  SECTION 5.07 OF THE MENTAL HYGIENE LAW

Inter-Office Coordinating Council (A.11616/Luster)

Chapter 978 of the Laws of 1977 reorganized the Department of Mental Hygiene (DMH) into its component offices and established an Inter-Office Coordinating Council (IOCC). In addition, Section 5.07 was enacted to provide a planning mechanism to establish statewide goals and objectives and statewide plans of services for the mentally disabled.

It was determined by former Governor Hugh Carey and the Legislature that three separate Offices would be better able to focus on the needs of the mentally disabled within their purview than a department that had a bias towards the needs of the mentally ill. The IOCC was created to help ensure that the Offices worked together to meet the needs of the multiply disabled and that certain resources could be shared by the Offices for greater efficiency of operations. At the same time, the Commission on Quality of Care for the Mentally Disabled (CQC) was established to provide an independent review of the offices within DMH. Over time, the IOCC was stripped of its resources and each office essentially went about its own business.

Section 5.07 was established to ensure that there would be a bottom-up planning process that would reflect the partnership between the State and local government units, emphasize how gaps in services would be filled, and ensure that services are provided to the multiply disabled. Advisory councils were created for each of the Offices to establish measurable statewide goals and objectives, to be reviewed on an annual basis by means of a process that was open, visible and accessible to the public. The Offices were then to formulate comprehensive five-year plans with annual updates. These plans were to be formulated from local comprehensive plans developed by each local government with participation of consumers, consumer groups, providers of services, and Department facilities. Section 5.07 specified what, at a minimum, was to be included in the annual plans. These plans were due on October first of each year with copies to the Legislature. This was done so that the plans could be considered by the Governor and the Legislature in the next ensuing Executive budget.

In addition, an interim report is to be submitted to the Governor and the Legislature no later than February 15th of each year, detailing each Commissioner's actions in fulfilling the requirements of Section 5.07 and modifications being considered.

Section 5.07 also requires each office to prepare a three-year capital plan that corresponds to the statewide five-year plans. The advisory councils are to review these plans and make recommendations. Copies of this plan, as well as the recommendations, are to be submitted to the Legislature on October first of each year.

It is apparent that, since the beginning of Governor Pataki's tenure, the Offices within DMH have not met the reporting requirements of Section 5.07 of the Mental Hygiene Law. This has hindered the ability of the Legislature to establish policies and funding priorities consistent with the needs identified by local governments and the other stakeholders. It has resulted in a top-down, not bottom-up planning process, which is inconsistent with the intent of the Legislature.

The needs of the multiply disabled, which were originally intended to be addressed by the IOCC, are not being given appropriate attention in the annual planning process since the planning process being implemented does not conform with the requirements of law. The end result is the Legislature has insufficient information to establish policy and budgetary priorities.

The Committee, in conjunction with the Committee on Alcohol and Drug Abuse, held joint public hearings in Albany and Buffalo in 2001, and a public hearing in January, 2002 in New York City to receive information on how the statutory planning process has been implemented by the Executive and how Section 5.07 and related sections of the Mental Hygiene Law could be strengthened. Members of the advisory councils, local governments, consumers, consumer groups, service providers and agency representatives were invited to testify. As of the date of this report, no representative of any Office within DMH has appeared before the Committees to discuss their planning processes.

Legislation was introduced by the Committee (A.11616) and passed by the Assembly to establish the IOCC as a viable entity within the Department of Mental Hygiene, with an independent Chairperson and give it responsibility for planning and delivery of services to the multiply disabled. It also establishes a Council for Mental Hygiene Planning with members to be appointed by the Governor and the Legislature. The Council is responsible for goal setting and planning for the needs of the multiply disabled. In addition, this legislation strengthened the planning process by:

• requiring Advisory Councils of each of the Offices and the IOCC to hold public hearings regarding identifying statewide goals and objectives and to transmit such goals and objective to the Legislature; and
• requiring the Chair of the IOCC and the Commissioners of each Office within DMH to annually certify that each five-year plan has been formulated in conformance with the statewide goals and objectives established by the Advisory Councils.

Pressures on the mental hygiene service delivery system will increase as people experience such problems as post-traumatic stress syndrome; alcohol and substance abuse; gambling; and the inability of fragile, mentally disabled persons to cope. The Committee is committed to ensuring that there is a viable, bottom-up planning process to meet the needs of the mentally disabled. The Committee is further committed to ensure that the needs of the multiply disabled are being addressed effectively and efficiently by the Offices within DMH.

C.  ELECTROCONVULSIVE THERAPY

Electroconvulsive Therapy (ECT) is a procedure used to treat certain mental illnesses by directing electrical current through the brain to produce an epileptic seizure. In February, 2001, the Assembly became aware of concerns regarding the forced treatment of mental illnesses with ECT. Since the Legislature last looked at ECT over 30 years ago, the Committee decided to revisit the issue. A public hearing was held in New York City on May 18, 2001, where both proponents and opponents of the use of ECT provided testimony. Information provided to the Committee included issues related to the long-term efficacy of ECT treatments, cognitive side effects, use of antiquated equipment, inconsistent procedures for implementing ECT, informed consent protocols, court-ordered ECT, and education and training of ECT practitioners.

A second hearing was held on July 18, 2001 to receive testimony regarding proposed legislation. The Committee also requested the CQC to conduct a review of ECT practices at State-operated psychiatric centers. The CQC raised issues of concern regarding the informed consent procedures, lack of standard practices to be uniformly followed by all facilities, and different protocols for certifying ECT practitioners. The CQC recommended the Commissioner convene a blue ribbon panel to address these issues. The Committee considered the CQC recommendations and many of the suggestions presented at the July 18th hearing and made appropriate amendments to the legislation.

The Committee introduced one resolution and four bills designed to address some of the issues identified. The resolution and all four bills passed the Assembly and were sent to the Senate.

Resolution to Congress (K.2097/Luster)

The safety of the devices used to administer ECT has been an issue of longstanding contention among professionals and advocacy bodies. In 1976, Congress enacted legislation granting the federal Food and Drug Administration (FDA) authority to regulate medical devices, including machines used to administer ECT. However, the FDA was given only limited jurisdiction regarding ECT equipment due to a grandfather clause that allowed continued use absent FDA testing. Subsequently, in 1979, the FDA designated and classified ECT devices as Class III medical devices. A Class III designation is used for pre-market approval for devices that show an unreasonable risk of illness or injury. Yet, no formal tests were conducted by the FDA to determine the safety of such devices. This resolution calls on the United States Congress to require the FDA to determine the safety of ECT equipment and to pass legislation establishing proper protocols and administration of use.

Informed Consent (A.9081C/Luster)

The issue of informed consent is critical in enabling a patient to make a decision regarding the use of any medical intervention. The courts in New York State have consistently recognized and upheld the right of every individual to make his or her own treatment decisions. The Committee found that there is a significant degree of variability among facilities regarding information provided during the informed consent process, The ability of a patient to obtain appropriate information regarding ECT and the timeframe in which he or she must evaluate the efficacy of the information, as it relates to the patient, is crucial for the patient to make a reasoned and informed decision.

At the request of the Committee, the CQC conducted a survey of the provision of ECT at State psychiatric centers. The CQC found that, "protocols varied in detail regarding the procedure itself, as well as in issues such as physician privileging and determining capacity to consent." The impact of bias on the determination of capacity to consent necessitates extensive review as part of the informed consent process. Misdiagnosis, either as the result of bias or human error, can lead to faulty judgements regarding capacity to consent and validity of information provided during the informed consent process. This legislation addresses these concerns by involving mental health professionals, such as clinical psychologists, who have no involvement in ECT to help ensure that patients are diagnosed correctly and that bias in capacity determinations is minimized. In addition, this legislation:

• adds definitions of "Capacity" and "Valid Advance Directive" to the Mental Hygiene Law;
• provides for protocols to be followed during the informed consent process; and
• delineates court involvement in the event a patient is determined to lack capacity for informed consent.

Temporary Advisory Council on Electroconvulsive Therapy (A.9082D/Luster)

This legislation establishes a temporary advisory council to assist the Commissioner of OMH in developing procedures and practices to be followed by all ECT facilities; recommend licensing requirements for those that administer ECT; recommend prohibition of certain ECT equipment; and to identify acceptable equipment to be used for the administration of ECT. The Committee found that ECT protocols vary widely among facilities and, absent federal stipulations regarding ECT protocols, determined the need for a temporary advisory council to address such issues within New York State. In January, 2001, the Commissioner of OMH stated that an internal blue ribbon panel was addressing ECT protocols and that a report would be forthcoming with recommendations. As of the date of this report, neither the promised report nor a list of OMH panel members has been provided to the Committee.

Oversight and Regulation of Electroconvulsive Therapy (A. 9083B/Luster)

The Committee found that there was little cumulative data regarding the usage of ECT statewide. This bill requires OMH to report the incidence of ECT use in public and private hospitals or other facilities where ECT is administered.

Electroconvulsive Therapy Facilities (A. 9084/Luster)

The American Psychiatric Association's (APA) 2001 ECT Task Force Report states that, to some extent, adverse medical adverse events can be anticipated with ECT. The APA recommends that ECT facilities be appropriately equipped and staffed with personnel to manage potential clinical emergencies. This bill prohibits the use of ECT in doctors' offices or other locations that do not have emergency medical facilities.

D.  CONSUMER CARE ISSUES

Medicaid Neutrality Cap (A.737/Brennan)

The State Office of Mental Health currently limits the provision of licenses, the transfer of licenses, and the expansion of services under existing licenses based on the availability of State Medicaid funds. This "cap" of State Medicaid funds as a determining factor for licensing is not a criteria used by the Department of Health, OMRDD, or the Office of Alcoholism and Substance Abuse Services. The effect of this practice has been a restriction in the expansion of outpatient mental health services with a net result of a severe shortage of available outpatient mental health services. It also discriminates unfairly against programs that provide services to Medicaid recipients. This bill would bring parity to mental health in this regard. It was passed by the Assembly and transmitted to the Senate.

Familial Dysautonomia (A.1154/Dinowitz)

Familial Dysautonomia is a rare genetic disease that can result in developmental disabilities. Legislation was enacted, Chapter 255 of the Laws of 2002, to include this disorder in the Mental Hygiene Law definitions of developmental disabilities.

Mental Disability Public Understanding and Acceptance Program (A.3217/Luster)

One of the biggest obstacles facing persons with mental illness, mental retardation, developmental disabilities, and addictive disorders is the stigma associated with these disorders. This bill was introduced to raise public awareness and help improve the lives of persons with mental disabilities. It was reported to the Ways and Means Committee.

Fee Liability (A.2619/Brennan)

The Office of Mental Health currently has the authority to bill patients for services provided in its facilities. Unfortunately OMH has in the past billed patients for services when the patients have suffered from mistreatment, including one case where a person was killed while a patient at a psychiatric center. This legislation would prevent OMH from billing a person for his/her care and treatment when the source of the funds for making such payments comes from the proceeds of a suit against the State from negligence or improper treatment. This bill passed the Assembly and was reported to the Senate Rules Committee.

E.  CHILDREN'S CARE ISSUES

Children's Bill of Rights (A.3162/Luster)

In 1993, CQC found that children placed in residential programs are often moved from the mental health system to the foster care and/or the juvenile justice systems. Because children need special protection when separated from their families, and current law does not distinguish them from adults, the Committee reported this bill, which would establish a clear and consistent set of principles to guide the care and treatment of all children placed in out-of-home settings. It passed the Assembly, but died in the Senate Mental Health and Developmental Disabilities Committee.

This bill would establish a right of treatment for children who are certified and waiting to be placed in a residential treatment facility (RTF). Currently, many seriously emotionally disturbed children who are certified for and awaiting RTF placement in the interim are not receiving the services they need. This bill would ensure that these children receive equivalent services in the community until they are placed in an RTF. The Ways and Means Committee did not report the bill, but the Committee will continue to work on this important issue during the upcoming session.

The Committee worked with advocates to develop legislation to codify the CCSI program which was started in the Fall of 1993. Localities take responsibility for creating a procedure to examine the needs or seriously emotionally disturbed children who are at risk of residential placements. Local governments convene representatives of different service agencies to examine a child's needs and provide integrated services in a community setting. This process also serves to help children remain in their homes, reducing the need for costly residential placements. The legislation was enacted and became Chapter 247 of the Laws of 2002.

F.  SERVICE DELIVERY, OVERSIGHT AND MANAGEMENT

Sealed Files (A.1914/Colman)

In an effort to protect a consumer's right to be informed about his/her treatment and to maintain confidentiality, the Assembly passed this legislation, which would permit a person who has been treated as an outpatient in a facility to have his/her files sealed if more than 10 years have elapsed since such treatment. Such a procedure would ensure the consumer that files would not be seen inadvertently or somehow exposed to the public. This bill passed the Assembly but died in Senate Rules.

Commission on Quality of Care Oversight (A.1196/Dinowitz)

As more and more people are discharged to the community and mental hygiene services are community-based, the need for oversight and advocacy to protect persons with mental disabilities is greatly increased. This legislation clarifies the CQC's jurisdiction to ensure that people served in the community are able to have the conditions of their care and treatment reviewed when they are being provided by a program or facility funded by OMH or OMRDD. This bill passed the Assembly, and is now pending in the Senate.

Waiting Lists (A.736/Brennan)

Since the deinstitutionalization of large numbers of mentally ill, mentally retarded and developmentally disabled individuals has taken place, the services that they need or desire have not been available in sufficient quantity. Many such persons are capable of living in our community, independent of their families or other full-time care, if some alternate level of services were available. Without clearly delineated lists to demonstrate which services are needed most by this population, and in which areas of the State they are needed, neither the agencies nor the Legislature can properly plan for them. The lists being mandated by this legislation would provide vital information that will assist in the planning by the State and voluntary agencies wishing to establish, direct, or enlarge services for this population. The Committee reported this bill, which passed the Assembly this session and is now in the Senate Mental Health Committee.

Authority for Mental Hygiene Legal Services (A.8656/Luster)

Section 47.01 of the Mental Hygiene Law authorizes the Mental Hygiene Legal Service (MHLS) to provide legal assistance to patients or residents of facilities for the mentally disabled, and persons alleged to be in need of care and treatment in such facilities. Article 81 of the Mental Hygiene Law empowers courts in guardianship proceedings to appoint the MHLS as court evaluator or counsel for persons alleged to be mentally incapacitated, where such persons are in any licensed health care facility.

For many years, however, the courts also have assigned the MHLS to assist persons who reside or are cared for in other facilities or settings beyond those statutorily enumerated. Most often, this has happened in instances where a mentally-disabled person has been admitted to a general hospital or other general health care facility, or where the mentally-disabled person lives with friends, family, or in a shelter. By providing these court-ordered services, the MHLS has been of significant assistance to individuals and to the trial courts, helping to ensure proper treatment and care in a timely and efficient fashion.

At the request of the Administrative Board of the Courts, whose membership consists of the Chief Judge and the Presiding Justices of the four Appellate Divisions (who are responsible for administering the MHLS in their respective judicial departments), the Legislature proposed to codify jurisdiction for the MHLS to provide its services to mentally disabled individuals not residing in traditional facilities in matters pertaining to their care and treatment. This bill passed the Assembly in 2000 but died in the Senate Mental Health Committee.

G.  OTHER PROGRAM AREAS

Community Mental Health Reinvestment Act (A.11604A/Luster, S.7560/Libous)

The Community Mental Health Reinvestment Act (CMHRA) expired on September 30, 2001. Originally enacted in 1993 with a sunset provision and subsequently renewed with revisions, the Community Reinvestment Act established, as State policy, the principle that all savings within the State-operated mental health service delivery system would be reallocated to localities across the State to meet the mental health needs of individuals and facilitate their ability to live independently in their home communities. In 2002, the Governor did not propose a new CMHRA. Both the Assembly and the Senate determined it necessary to maintain the promise to reinvest resources realized from the downsizing of State-operated facilities into community- based programs. In June, 2002, community reinvestment legislation passed both Houses.

The legislation:

• created a new Section 41.56 of the Mental Hygiene Law entitled, "Community Mental Health Support and Workforce Reinvestment Program";
• required the Office of Mental Health and the Division of the Budget to develop a methodology to identify per-bed savings at inpatient facilities to be reinvested. This methodology was to be shared with the Legislature for review and analysis;
• provided a floor of $70,000 savings per bed closed;
• ensured that funding provided pursuant to this section only be used to support mental health workforce-related activities and other general programmatic functions to help foster a stable mental health system;
• allowed for additional reinvestment funds as facilities are closed, co-located o consolidated pursuant to the statutory planning requirements of Section 5.07 of the Mental Hygiene Law;
• required the Office of Mental Health, beginning in October, 2003, to submit annually, a long-term capital plan for the future use of all mental health facilities;
• provided up to 15 percent of reinvestment funds for staffing at State mental health facilities and allowing at least seven percent of these funds to be used for State-operated community-based services; and
• required the Office of Mental Health, beginning October, 2003, and annually thereafter, to provide a long term plan for the utilization of State employees and their role in the provision of an integrated and comprehensive system of treatment and rehabilitation for persons with mental illnesses.

The Senate transmitted the legislation to the Governor on December 10, 2002. Governor Pataki vetoed this legislation on December 20, 2002 (veto message # 38).

Fair Insurance Treatment Act (A.4506/Luster)

The Committee worked closely with the Insurance Committee on this legislation, which would require insurance providers to provide coverage for persons with mental illness on the same terms and conditions as they do for persons with other illnesses. Current law allows insurers to limit the coverage they provide to persons with mental illness. The bill passed the Assembly and died in the Senate.

Adult Homes (A.11783/Luster)

There are 531 adult homes in New York with over 38,500 residents. Approximately 15,000 of these residents are or have received services from the mental hygiene system. During 2001 the Committee became aware of unacceptable conditions and mistreatment of residents at one adult home. In response, the Committee, along with the Committees on Health, Aging, and Oversight, Analysis and Investigation wrote the Governor requesting him to address oversight and enforcement issues, ensure consultation with OMH regarding the care of residents with mental health needs, and investigate the current state of affairs in adult homes. The Committees followed up with the Governor on several occasions during the ensuing year to no avail.

The Chairs of the four Assembly Committees determined it necessary to hold public hearings regarding the quality of care in adult homes. Hearings were held in New York City on May 10, 2002 and in Albany on June 6, 2002. Subsequently, on June 18, 2002, the Assembly introduced A.11783 to respond to issues identified by the Assembly related to adult homes. The Assembly decided not to pass this bill, opting instead to attempt to work with the Governor to fashion a bipartisan response to the adult home crisis. Unfortunately, the Governor did not follow through with invitations to the Assembly to participate in his Adult Home Workgroup. This action was contrary to statements made to the Committees at the June 6, 2002 public hearing made by Executive agency officials. In addition the Governor did not respond to several requests for information and reports required by statute from the Chairs of the four Committees.

Work and Wellness Act

The Legislature passed and the Governor signed the Work and Wellness Act, Chapter 1 of the Laws of 2002. This important piece of legislation will enable disabled individuals to return to work while retaining their Medicaid insurance benefit on a sliding-scale fee basis. The legislation will help ensure that no one has to risk important health insurance and prescription drug coverage because of returning to work.

A.  COMMUNITY REINVESTMENT ACT

The Community Reinvestment Act expired on September 30, 2001. Originally enacted in 1993 with a sunset provision and subsequently renewed with revisions, the Community Reinvestment Act established, as State policy, the principle that all savings within the State- operated mental health delivery system would be reallocated to localities across the State to meet the mental health needs of individuals and facilitate their ability to live independently in their home communities. The Committee and the Assembly remain committed to the principle of reinvestment and will work with the Senate and the Governor to enact a permanent statute reaffirming this principle consistent with the statutory planning requirements of Section 5.07 of the Mental Hygiene Law.

B.  SECTION 5.07 OF THE MENTAL HYGIENE LAW

Section 5.07 of the Mental Hygiene Law lays out the statutory requirements for the planning and implementation of a comprehensive system of service delivery based on the development of local plans and the involvement consumers, advocates and providers of services. The Governor has not complied with the requirements of this law since he began his tenure as Governor.

The failure of the Governor to faithfully execute the laws of the State of New York and to expeditiously implement the laws approved by the Legislature created a public health crisis and is a violation of the public trust. Promises made by the people of this State in the Constitution and through their elected representatives in the Legislature to help the mentally disabled have been broken. The failure of the Governor to comply with the planning and reporting requirements of the Mental Hygiene Law and the removal of significant public resources from the mental health system by the Governor has severely limited the ability of the State to develop alternative residential and service delivery programs for mentally ill persons in their home communities. As a result, thousands of mentally ill persons suffered indignities and abuse, and hundreds of others have succumbed to untimely deaths due to a dysfunctional mental health system.

The Committee is committed to holding the Governor accountable for complying with the requirements of the Mental Hygiene Law. In addition, the Committee is committed to strengthening the planning and reporting requirements of the law and ensuring that services to the multiply disabled are planned for, and coordinated between the Offices within the Department of Mental Hygiene.

C.  ADULT HOMES

The Committee is committed to addressing issues of concern raised by its review of the adult home industry. The Committee will work with the Assembly Committees on Aging, Health, and Oversight, Analysis and Investigation, as well as the Senate and the Governor during the upcoming session to ensure that the mentally ill have an array of stable, affordable residential options to better enable them to live independent lives in the community consistent with their needs.

The implementation of Assisted Outpatient Treatment (Kendra's Law) will continue to be closely monitored to determine how the process is working and where the gaps in services present themselves. Of particular interest will be the impact of this law on the overall mental health system. The Committee will closely examine amendments likely to be proposed by the Governor's Office, OMH, the Attorney General's Office and numerous community providers.

E.  FAIR INSURANCE TREATMENT

The Committee will continue to work with the Senate to enact legislation to provide parity for insurance coverage of mental illness with that of other physical illnesses.

F.  PRESUMPTIVE MEDICAID ELIGIBILITY

When a New Yorker with a mental illness is released from jail, prison, or a State psychiatric facility, he or she is ineligible for Medicaid for at least the 30 to 90 days it takes to process the application. The critical period of transition back to the community is a time not to be without health care coverage. For years this barrier has prevented people from accessing the care they need, resulting in costly relapses. Efforts will continue to include this item in next year's budget.

G.  MEDICAID NEUTRALITY CAP

The Medicaid neutrality cap was put in place in the mid-1990s to hold down Medicaid costs, but currently is a standard only applied to mental health. Expansion of outpatient mental health services has been limited and restricted since the applicant for approved licensure must indicate how both the State and local shares of Medicaid for the proposed outpatient programming will be paid. The Committee is working to change this policy, which has contributed to a severe shortage of available mental health services.

H.  INCARCERATED MENTALLY ILL

The diversion of the mentally ill from incarceration is a focus the Committee has taken in 2001-2002 and will continue to pursue next legislative session. The Committee has been active in exploring what diverse program options might be the best fit for New York State. It is anticipated that visits to prisons and jails, as well as continuous dialogue with experts in the field, will help yield a package of bills in the areas of treatment and diversion for the next legislative session.

APPENDIX A

2002 Summary of Action on Bills

The Assembly Mental Health Committee periodically holds public hearings on topics of importance. In addition to receiving testimony from many individuals, such public forums allow for the discussion and development of new directions and legislation on vital topics.

A joint public hearing was held on January 24, 2002 in New York City regarding the implementation of the planning requirements of Section 5.07 of the Mental Hygiene Law by the Executive. The Committee on Alcohol and Drug Abuse joined the Committee for these hearings. This was the third hearing regarding this matter. The first hearing was held on October 18, 2001 in Albany and the second in Buffalo on October 26, 2001. Section 5.07 of the Mental Hygiene Law was established by Chapter 978 of the Laws of 1977 to ensure that there would be an annual planning process which would reflect a partnership between State and local governmental units, emphasizing how gaps in services for persons with mental disabilities would be filled and that services are provided to the multiply disabled. It is apparent that the Executive has not met the requirements of Section 5.07 for several years. The hearings were scheduled across the State to give local stakeholders the opportunity to provide testimony on how the planning process functions pursuant to statute.

Two joint public hearings were held on May 10, 2002 in New York City and June 6, 2002 in Albany regarding the quality of care in adult homes. The Assembly Committees on Aging, Health, and, Oversight, Analysis and Investigation participated with the Committee at these hearings.

"Report on Electroconvulsive Therapy (ECT)", March, 2002

Electroconvulsive Therapy (ECT) is a procedure that continues to be the subject of serious controversy and disagreement, even within the psychiatric profession. ECT entails sending an electrical current into the brain of a patient to produce a grand mal epileptic seizure. The State Legislature had not conducted a formal review of ECT use in New York since the mid-1970s. The Committee's most recent examination of the issue of ECT began in February, 2001. This report highlights the findings of the Committee and serves as the basis for legislation passed by the Assembly regarding ECT in 2002.

"BROKEN PROMISES, BROKEN LIVES: A Report on the Status of the Mental Health Delivery System in New York State", October 31, 2002

The people of the State of New York have historically supported policies designed to improve the lives of persons suffering from mental illnesses or who were otherwise mentally disabled. The State Constitution, the Mental Hygiene Law and related statutes provide expression to that support and form a framework for the development and implementation of an effective system of service delivery. In February, 2001, the Committee initiated a comprehensive review of the status of the mental health service delivery system. The impetus for this review was the Governor's proposal in early 2001 to close two State-operated psychiatric centers and relocate State-operated children's psychiatric centers onto the grounds of adult psychiatric centers in order to provide cost-of-living adjustments (COLAs) and Medicaid rate increases to certain community-based mental health service providers.

The Governor, as Chief Executive of the State, sets the tone for his administration. The Governor has a constitutional responsibility to faithfully execute the laws of the State of New York and to expedite implementation of laws enacted by the Legislature. The failure of the Governor to faithfully execute the laws and to expeditiously implement the laws approved by the Legislature created a public health crisis and is a violation of the public trust. Promises made by the people of this State in the Constitution and through their elected representatives in the Legislature to help the mentally disabled have been broken. The failure of the Governor to comply with the planning and reporting requirements of the Mental Hygiene Law and the removal of significant public resources from the mental health system by the Governor has severely limited the ability of the State to develop alternative residential and service delivery programs for mentally ill persons in their home communities.