S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         6051
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                    March 11, 2015
                                      ___________
       Introduced  by  M.  of  A.  RODRIGUEZ  --  read once and referred to the
         Committee on Mental Health
       AN ACT to amend the  mental  hygiene  law  and  the  education  law,  in
         relation to creating mental health incident review panels
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. The mental hygiene law is amended by adding a  new  section
    2  31.38 to read as follows:
    3  S 31.38 MENTAL HEALTH INCIDENT REVIEW PANELS.
    4    (A)  THE COMMISSIONER IS AUTHORIZED TO ESTABLISH A MENTAL HEALTH INCI-
    5  DENT REVIEW PANEL FOR THE PURPOSES OF REVIEWING  THE  CIRCUMSTANCES  AND
    6  EVENTS  RELATED  TO  A  SERIOUS  INCIDENT INVOLVING A PERSON WITH MENTAL
    7  ILLNESS.  FOR PURPOSES OF THIS SECTION, A "SERIOUS INCIDENT INVOLVING  A
    8  PERSON WITH MENTAL ILLNESS" MEANS AN INCIDENT OCCURRING IN THE COMMUNITY
    9  IN WHICH A PERSON WITH A SERIOUS MENTAL ILLNESS IS PHYSICALLY INJURED OR
   10  CAUSES  PHYSICAL  INJURY  TO  ANOTHER  PERSON,  OR SUFFERS A SERIOUS AND
   11  PREVENTABLE MEDICAL COMPLICATION OR BECOMES INVOLVED IN A CRIMINAL INCI-
   12  DENT INVOLVING VIOLENCE. A PANEL SHALL CONDUCT A REVIEW OF SUCH  SERIOUS
   13  INCIDENT  IN  AN  ATTEMPT  TO IDENTIFY PROBLEMS OR GAPS IN MENTAL HEALTH
   14  DELIVERY SYSTEMS AND TO MAKE RECOMMENDATIONS FOR CORRECTIVE  ACTIONS  TO
   15  IMPROVE  THE  PROVISION OF MENTAL HEALTH OR RELATED SERVICES, TO IMPROVE
   16  THE COORDINATION, INTEGRATION AND ACCOUNTABILITY OF CARE IN  THE  MENTAL
   17  HEALTH SERVICE SYSTEM, AND TO ENHANCE INDIVIDUAL AND PUBLIC SAFETY.
   18    (B)  A MENTAL HEALTH INCIDENT REVIEW PANEL SHALL INCLUDE, BUT NEED NOT
   19  BE LIMITED TO, REPRESENTATIVES FROM THE OFFICE OF MENTAL HEALTH AND  THE
   20  LOCAL  GOVERNMENTAL  UNIT  WHERE THE SERIOUS INCIDENT INVOLVING A PERSON
   21  WITH A MENTAL ILLNESS OCCURRED. A MENTAL HEALTH  INCIDENT  REVIEW  PANEL
   22  MAY ALSO INCLUDE, IF DEEMED APPROPRIATE BY THE COMMISSIONER BASED ON THE
   23  NATURE  OF  THE  SERIOUS  INCIDENT BEING REVIEWED, ONE OR MORE REPRESEN-
   24  TATIVES FROM  MENTAL  HEALTH  PROVIDERS,  LOCAL  DEPARTMENTS  OF  SOCIAL
   25  SERVICES,  HUMAN  SERVICES PROGRAMS, HOSPITALS, LOCAL SCHOOLS, EMERGENCY
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD06901-01-5
       A. 6051                             2
    1  MEDICAL OR MENTAL HEALTH SERVICES, THE OFFICE OF  THE  COUNTY  ATTORNEY,
    2  STATE OR LOCAL LAW ENFORCEMENT AGENCIES, THE OFFICE OF THE MEDICAL EXAM-
    3  INER  OR  THE OFFICE OF THE CORONER, OR OTHER APPROPRIATE STATE OR LOCAL
    4  OFFICIALS.
    5    (C)  NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY AND TO
    6  THE EXTENT CONSISTENT WITH FEDERAL LAW, A MENTAL HEALTH INCIDENT  REVIEW
    7  PANEL  SHALL  HAVE  ACCESS  TO  THOSE  CLIENT-IDENTIFIABLE MENTAL HEALTH
    8  RECORDS, AS WELL AS ALL RECORDS, DOCUMENTATION AND REPORTS  RELATING  TO
    9  THE  INVESTIGATION OF AN INCIDENT BY A FACILITY IN ACCORDANCE WITH REGU-
   10  LATIONS OF THE COMMISSIONER, WHICH ARE NECESSARY FOR  THE  INVESTIGATION
   11  OF  THE  INCIDENT  AND  THE  PREPARATION OF A REPORT OF THE INCIDENT, AS
   12  PROVIDED IN SUBDIVISION (E) OF THIS SECTION. A  MENTAL  HEALTH  INCIDENT
   13  REVIEW PANEL ESTABLISHED PURSUANT TO THIS SECTION SHALL BE PROVIDED WITH
   14  ACCESS  TO  ALL  OTHER RECORDS IN THE POSSESSION OF STATE OR LOCAL OFFI-
   15  CIALS OR AGENCIES, WITHIN TWENTY-ONE  DAYS  OF  RECEIPT  OF  A  REQUEST,
   16  EXCEPT  THOSE RECORDS PROTECTED BY SECTION 190.25 OF THE CRIMINAL PROCE-
   17  DURE LAW.
   18    (D) MENTAL HEALTH INCIDENT REVIEW PANELS, MEMBERS OF THE REVIEW PANELS
   19  AND PERSONS WHO PRESENT INFORMATION TO A REVIEW PANEL SHALL HAVE IMMUNI-
   20  TY FROM CIVIL AND CRIMINAL LIABILITY FOR ALL REASONABLE AND  GOOD  FAITH
   21  ACTIONS  TAKEN  PURSUANT TO THIS SECTION, AND SHALL NOT BE QUESTIONED IN
   22  ANY CIVIL OR CRIMINAL PROCEEDING REGARDING  ANY  OPINIONS  FORMED  AS  A
   23  RESULT  OF A MEETING OF SUCH REVIEW PANEL. NOTHING IN THIS SECTION SHALL
   24  BE CONSTRUED TO PREVENT A  PERSON  FROM  TESTIFYING  AS  TO  INFORMATION
   25  OBTAINED  INDEPENDENTLY  OF  A  MENTAL  HEALTH INCIDENT REVIEW PANEL, OR
   26  INFORMATION WHICH IS PUBLIC.
   27    (E) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO  THE  CONTRARY,  ALL
   28  MEETINGS  CONDUCTED, ALL REPORTS AND RECORDS MADE AND MAINTAINED AND ALL
   29  BOOKS AND PAPERS OBTAINED BY A MENTAL HEALTH INCIDENT REVIEW PANEL SHALL
   30  BE CONFIDENTIAL, AND SHALL NOT BE OPEN  OR  MADE  AVAILABLE,  EXCEPT  BY
   31  COURT  ORDER  OR  AS  SET FORTH IN SUBDIVISION (G) OF THIS SECTION. EACH
   32  MENTAL HEALTH INCIDENT REVIEW PANEL SHALL DEVELOP A REPORT OF THE  INCI-
   33  DENT  INVESTIGATED. SUCH REPORT SHALL NOT CONTAIN ANY INDIVIDUALLY IDEN-
   34  TIFIABLE INFORMATION, AND IT SHALL BE PROVIDED TO THE OFFICE  OF  MENTAL
   35  HEALTH  UPON  COMPLETION. SUCH REPORTS MUST BE APPROVED BY THE OFFICE OF
   36  MENTAL HEALTH PRIOR TO BECOMING FINAL.
   37    (F) IF QUALITY PROBLEMS OF PARTICULAR MENTAL HEALTH PROGRAMS ARE IDEN-
   38  TIFIED BASED ON SUCH REVIEWS, THE COMMISSIONER IS  AUTHORIZED,  PURSUANT
   39  TO  THE RELEVANT PROVISIONS OF THIS CHAPTER, TO TAKE APPROPRIATE ACTIONS
   40  REGARDING THE LICENSURE OF PARTICULAR PROVIDERS, TO REFER THE  ISSUE  TO
   41  OTHER  RESPONSIBLE PARTIES FOR INVESTIGATION, OR TO TAKE OTHER APPROPRI-
   42  ATE ACTION.
   43    (G) IN HIS OR HER DISCRETION, THE COMMISSIONER SHALL BE AUTHORIZED  TO
   44  PROVIDE  THE  FINAL  REPORT OF A REVIEW PANEL OR PORTIONS THEREOF TO ANY
   45  INDIVIDUAL OR ENTITY FOR  WHOM  THE  REPORT  MAKES  RECOMMENDATIONS  FOR
   46  CORRECTIVE OR OTHER APPROPRIATE ACTIONS THAT SHOULD BE TAKEN.
   47    (H)  THE  COMMISSIONER SHALL SUBMIT AN ANNUAL CUMULATIVE REPORT TO THE
   48  GOVERNOR AND THE LEGISLATURE INCORPORATING THE DATA IN THE MENTAL HEALTH
   49  INCIDENT REVIEW PANEL REPORTS AND INCLUDING A SUMMARY  OF  THE  FINDINGS
   50  AND  RECOMMENDATIONS  MADE  BY SUCH REVIEW PANELS. THE ANNUAL CUMULATIVE
   51  REPORTS MAY THEREAFTER BE MADE AVAILABLE TO THE PUBLIC.
   52    S 2. Subdivision (c) of section 33.13 of the  mental  hygiene  law  is
   53  amended by adding a new paragraph 17 to read as follows:
   54    17.  TO  A  MENTAL  HEALTH  INCIDENT REVIEW PANEL, OR MEMBERS THEREOF,
   55  ESTABLISHED BY THE COMMISSIONER PURSUANT TO SECTION 31.38 OF THIS TITLE,
   56  IN CONNECTION WITH INCIDENT REVIEWS CONDUCTED BY SUCH PANEL.
       A. 6051                             3
    1    S 3. Subdivision 3 of section 6527 of the education law, as amended by
    2  chapter 257 of the laws of 1987, is amended to read as follows:
    3    3. No individual who serves as a member of (a) a committee established
    4  to  administer  a  utilization  review  plan  of a hospital, including a
    5  hospital as defined in article twenty-eight of the public health law  or
    6  a  hospital  as defined in subdivision ten of section 1.03 of the mental
    7  hygiene law, or (b) a committee having the responsibility of the  inves-
    8  tigation of an incident reported pursuant to section 29.29 of the mental
    9  hygiene  law  or  the  evaluation and improvement of the quality of care
   10  rendered in a hospital as defined in article twenty-eight of the  public
   11  health  law  or a hospital as defined in subdivision ten of section 1.03
   12  of the mental hygiene law,  or  (c)  any  medical  review  committee  or
   13  subcommittee thereof of a local, county or state medical, dental, podia-
   14  try  or  optometrical  society,  any such society itself, a professional
   15  standards review organization or  an  individual  when  such  committee,
   16  subcommittee,  society,  organization  or  individual  is performing any
   17  medical or quality assurance review function including the investigation
   18  of an incident reported pursuant to section 29.29 of the mental  hygiene
   19  law,  either  described  in  clauses  (a)  and  (b) of this subdivision,
   20  required by law, or involving any controversy or dispute between  (i)  a
   21  physician,  dentist, podiatrist or optometrist or hospital administrator
   22  and a patient concerning  the  diagnosis,  treatment  or  care  of  such
   23  patient  or  the  fees or charges therefor or (ii) a physician, dentist,
   24  podiatrist or optometrist or hospital administrator and  a  provider  of
   25  medical,  dental,  podiatric  or  optometrical  services  concerning any
   26  medical or health charges or fees of such physician, dentist, podiatrist
   27  or optometrist, or (d) a committee appointed pursuant to  section  twen-
   28  ty-eight  hundred  five-j of the public health law to participate in the
   29  medical and dental malpractice prevention program, or (e) any individual
   30  who participated in the preparation of incident reports required by  the
   31  department  of health pursuant to section twenty-eight hundred five-l of
   32  the public health law, or (f) a committee established  to  administer  a
   33  utilization  review  plan,  or  a committee having the responsibility of
   34  evaluation and improvement of the quality of care rendered, in a  health
   35  maintenance  organization  organized  under  article  forty-four  of the
   36  public health law or article forty-three of the insurance law, including
   37  a committee of an  individual  practice  association  or  medical  group
   38  acting  pursuant  to a contract with such a health maintenance organiza-
   39  tion, OR (G) A MENTAL HEALTH INCIDENT REVIEW PANEL CONVENED PURSUANT  TO
   40  SECTION  31.38  OF THE MENTAL HYGIENE LAW, shall be liable in damages to
   41  any person for any action taken or recommendations made, by him  OR  HER
   42  within  the  scope of his OR HER function in such capacity provided that
   43  (a) such individual has taken action or made recommendations within  the
   44  scope  of his OR HER function and without malice, and (b) in the reason-
   45  able belief after reasonable investigation that the act  or  recommenda-
   46  tion was warranted, based upon the facts disclosed.
   47    Neither  the  proceedings nor the records relating to performance of a
   48  medical or a quality assurance review function  or  participation  in  a
   49  medical  and  dental  malpractice  prevention  program  nor  any  report
   50  required by the department of health pursuant  to  section  twenty-eight
   51  hundred  five-l of the public health law described herein, including the
   52  investigation of an incident reported pursuant to section 29.29  of  the
   53  mental  hygiene  law OR REVIEWED PURSUANT TO SECTION 31.38 OF THE MENTAL
   54  HYGIENE LAW, shall be subject to disclosure under article thirty-one  of
   55  the  civil  practice  law and rules except as hereinafter provided or as
   56  provided by any other provision of law. No person  in  attendance  at  a
       A. 6051                             4
    1  meeting  when  a  medical or a quality assurance review or a medical and
    2  dental malpractice prevention program or an incident reporting  function
    3  described  herein was performed, including the investigation of an inci-
    4  dent  reported pursuant to section 29.29 of the mental hygiene law OR AN
    5  INCIDENT REVIEWED PURSUANT TO SECTION 31.38 OF THE MENTAL  HYGIENE  LAW,
    6  shall be required to testify as to what transpired thereat. The prohibi-
    7  tion  relating  to  discovery of testimony shall not apply to the state-
    8  ments made by any person in attendance at such a meeting who is a  party
    9  to  an  action or proceeding the subject matter of which was reviewed at
   10  such meeting.
   11    S 4. This act shall take effect on the thirtieth day  after  it  shall
   12  have become a law.