S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         2759
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                   January 29, 2015
                                      ___________
       Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
         printed to be committed to the Committee on Mental Health and Develop-
         mental Disabilities
       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
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD06901-01-5
       S. 2759                             2
    1  SERVICES,  HUMAN  SERVICES PROGRAMS, HOSPITALS, LOCAL SCHOOLS, EMERGENCY
    2  MEDICAL OR MENTAL HEALTH SERVICES, THE OFFICE OF  THE  COUNTY  ATTORNEY,
    3  STATE OR LOCAL LAW ENFORCEMENT AGENCIES, THE OFFICE OF THE MEDICAL EXAM-
    4  INER  OR  THE OFFICE OF THE CORONER, OR OTHER APPROPRIATE STATE OR LOCAL
    5  OFFICIALS.
    6    (C) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY AND  TO
    7  THE  EXTENT CONSISTENT WITH FEDERAL LAW, A MENTAL HEALTH INCIDENT REVIEW
    8  PANEL SHALL HAVE  ACCESS  TO  THOSE  CLIENT-IDENTIFIABLE  MENTAL  HEALTH
    9  RECORDS,  AS  WELL AS ALL RECORDS, DOCUMENTATION AND REPORTS RELATING TO
   10  THE INVESTIGATION OF AN INCIDENT BY A FACILITY IN ACCORDANCE WITH  REGU-
   11  LATIONS  OF  THE COMMISSIONER, WHICH ARE NECESSARY FOR THE INVESTIGATION
   12  OF THE INCIDENT AND THE PREPARATION OF A  REPORT  OF  THE  INCIDENT,  AS
   13  PROVIDED  IN  SUBDIVISION  (E) OF THIS SECTION. A MENTAL HEALTH INCIDENT
   14  REVIEW PANEL ESTABLISHED PURSUANT TO THIS SECTION SHALL BE PROVIDED WITH
   15  ACCESS TO ALL OTHER RECORDS IN THE POSSESSION OF STATE  OR  LOCAL  OFFI-
   16  CIALS  OR  AGENCIES,  WITHIN  TWENTY-ONE  DAYS  OF RECEIPT OF A REQUEST,
   17  EXCEPT THOSE RECORDS PROTECTED BY SECTION 190.25 OF THE CRIMINAL  PROCE-
   18  DURE LAW.
   19    (D) MENTAL HEALTH INCIDENT REVIEW PANELS, MEMBERS OF THE REVIEW PANELS
   20  AND PERSONS WHO PRESENT INFORMATION TO A REVIEW PANEL SHALL HAVE IMMUNI-
   21  TY  FROM  CIVIL AND CRIMINAL LIABILITY FOR ALL REASONABLE AND GOOD FAITH
   22  ACTIONS TAKEN PURSUANT TO THIS SECTION, AND SHALL NOT BE  QUESTIONED  IN
   23  ANY  CIVIL  OR  CRIMINAL  PROCEEDING  REGARDING ANY OPINIONS FORMED AS A
   24  RESULT OF A MEETING OF SUCH REVIEW PANEL. NOTHING IN THIS SECTION  SHALL
   25  BE  CONSTRUED  TO  PREVENT  A  PERSON  FROM TESTIFYING AS TO INFORMATION
   26  OBTAINED INDEPENDENTLY OF A MENTAL  HEALTH  INCIDENT  REVIEW  PANEL,  OR
   27  INFORMATION WHICH IS PUBLIC.
   28    (E)  NOTWITHSTANDING  ANY  OTHER PROVISION OF LAW TO THE CONTRARY, ALL
   29  MEETINGS CONDUCTED, ALL REPORTS AND RECORDS MADE AND MAINTAINED AND  ALL
   30  BOOKS AND PAPERS OBTAINED BY A MENTAL HEALTH INCIDENT REVIEW PANEL SHALL
   31  BE  CONFIDENTIAL,  AND  SHALL  NOT  BE OPEN OR MADE AVAILABLE, EXCEPT BY
   32  COURT ORDER OR AS SET FORTH IN SUBDIVISION (G)  OF  THIS  SECTION.  EACH
   33  MENTAL  HEALTH INCIDENT REVIEW PANEL SHALL DEVELOP A REPORT OF THE INCI-
   34  DENT INVESTIGATED. SUCH REPORT SHALL NOT CONTAIN ANY INDIVIDUALLY  IDEN-
   35  TIFIABLE  INFORMATION,  AND IT SHALL BE PROVIDED TO THE OFFICE OF MENTAL
   36  HEALTH UPON COMPLETION. SUCH REPORTS MUST BE APPROVED BY THE  OFFICE  OF
   37  MENTAL HEALTH PRIOR TO BECOMING FINAL.
   38    (F) IF QUALITY PROBLEMS OF PARTICULAR MENTAL HEALTH PROGRAMS ARE IDEN-
   39  TIFIED  BASED  ON SUCH REVIEWS, THE COMMISSIONER IS AUTHORIZED, PURSUANT
   40  TO THE RELEVANT PROVISIONS OF THIS CHAPTER, TO TAKE APPROPRIATE  ACTIONS
   41  REGARDING  THE  LICENSURE OF PARTICULAR PROVIDERS, TO REFER THE ISSUE TO
   42  OTHER RESPONSIBLE PARTIES FOR INVESTIGATION, OR TO TAKE OTHER  APPROPRI-
   43  ATE ACTION.
   44    (G)  IN HIS OR HER DISCRETION, THE COMMISSIONER SHALL BE AUTHORIZED TO
   45  PROVIDE THE FINAL REPORT OF A REVIEW PANEL OR PORTIONS  THEREOF  TO  ANY
   46  INDIVIDUAL  OR  ENTITY  FOR  WHOM  THE  REPORT MAKES RECOMMENDATIONS FOR
   47  CORRECTIVE OR OTHER APPROPRIATE ACTIONS THAT SHOULD BE TAKEN.
   48    (H) THE COMMISSIONER SHALL SUBMIT AN ANNUAL CUMULATIVE REPORT  TO  THE
   49  GOVERNOR AND THE LEGISLATURE INCORPORATING THE DATA IN THE MENTAL HEALTH
   50  INCIDENT  REVIEW  PANEL  REPORTS AND INCLUDING A SUMMARY OF THE FINDINGS
   51  AND RECOMMENDATIONS MADE BY SUCH REVIEW PANELS.  THE  ANNUAL  CUMULATIVE
   52  REPORTS MAY THEREAFTER BE MADE AVAILABLE TO THE PUBLIC.
   53    S  2.  Subdivision  (c)  of section 33.13 of the mental hygiene law is
   54  amended by adding a new paragraph 17 to read as follows:
       S. 2759                             3
    1    17. TO A MENTAL HEALTH INCIDENT  REVIEW  PANEL,  OR  MEMBERS  THEREOF,
    2  ESTABLISHED BY THE COMMISSIONER PURSUANT TO SECTION 31.38 OF THIS TITLE,
    3  IN CONNECTION WITH INCIDENT REVIEWS CONDUCTED BY SUCH PANEL.
    4    S 3. Subdivision 3 of section 6527 of the education law, as amended by
    5  chapter 257 of the laws of 1987, is amended to read as follows:
    6    3. No individual who serves as a member of (a) a committee established
    7  to  administer  a  utilization  review  plan  of a hospital, including a
    8  hospital as defined in article twenty-eight of the public health law  or
    9  a  hospital  as defined in subdivision ten of section 1.03 of the mental
   10  hygiene law, or (b) a committee having the responsibility of the  inves-
   11  tigation of an incident reported pursuant to section 29.29 of the mental
   12  hygiene  law  or  the  evaluation and improvement of the quality of care
   13  rendered in a hospital as defined in article twenty-eight of the  public
   14  health  law  or a hospital as defined in subdivision ten of section 1.03
   15  of the mental hygiene law,  or  (c)  any  medical  review  committee  or
   16  subcommittee thereof of a local, county or state medical, dental, podia-
   17  try  or  optometrical  society,  any such society itself, a professional
   18  standards review organization or  an  individual  when  such  committee,
   19  subcommittee,  society,  organization  or  individual  is performing any
   20  medical or quality assurance review function including the investigation
   21  of an incident reported pursuant to section 29.29 of the mental  hygiene
   22  law,  either  described  in  clauses  (a)  and  (b) of this subdivision,
   23  required by law, or involving any controversy or dispute between  (i)  a
   24  physician,  dentist, podiatrist or optometrist or hospital administrator
   25  and a patient concerning  the  diagnosis,  treatment  or  care  of  such
   26  patient  or  the  fees or charges therefor or (ii) a physician, dentist,
   27  podiatrist or optometrist or hospital administrator and  a  provider  of
   28  medical,  dental,  podiatric  or  optometrical  services  concerning any
   29  medical or health charges or fees of such physician, dentist, podiatrist
   30  or optometrist, or (d) a committee appointed pursuant to  section  twen-
   31  ty-eight  hundred  five-j of the public health law to participate in the
   32  medical and dental malpractice prevention program, or (e) any individual
   33  who participated in the preparation of incident reports required by  the
   34  department  of health pursuant to section twenty-eight hundred five-l of
   35  the public health law, or (f) a committee established  to  administer  a
   36  utilization  review  plan,  or  a committee having the responsibility of
   37  evaluation and improvement of the quality of care rendered, in a  health
   38  maintenance  organization  organized  under  article  forty-four  of the
   39  public health law or article forty-three of the insurance law, including
   40  a committee of an  individual  practice  association  or  medical  group
   41  acting  pursuant  to a contract with such a health maintenance organiza-
   42  tion, OR (G) A MENTAL HEALTH INCIDENT REVIEW PANEL CONVENED PURSUANT  TO
   43  SECTION  31.38  OF THE MENTAL HYGIENE LAW, shall be liable in damages to
   44  any person for any action taken or recommendations made, by him  OR  HER
   45  within  the  scope of his OR HER function in such capacity provided that
   46  (a) such individual has taken action or made recommendations within  the
   47  scope  of his OR HER function and without malice, and (b) in the reason-
   48  able belief after reasonable investigation that the act  or  recommenda-
   49  tion was warranted, based upon the facts disclosed.
   50    Neither  the  proceedings nor the records relating to performance of a
   51  medical or a quality assurance review function  or  participation  in  a
   52  medical  and  dental  malpractice  prevention  program  nor  any  report
   53  required by the department of health pursuant  to  section  twenty-eight
   54  hundred  five-l of the public health law described herein, including the
   55  investigation of an incident reported pursuant to section 29.29  of  the
   56  mental  hygiene  law OR REVIEWED PURSUANT TO SECTION 31.38 OF THE MENTAL
       S. 2759                             4
    1  HYGIENE LAW, shall be subject to disclosure under article thirty-one  of
    2  the  civil  practice  law and rules except as hereinafter provided or as
    3  provided by any other provision of law. No person  in  attendance  at  a
    4  meeting  when  a  medical or a quality assurance review or a medical and
    5  dental malpractice prevention program or an incident reporting  function
    6  described  herein was performed, including the investigation of an inci-
    7  dent reported pursuant to section 29.29 of the mental hygiene law OR  AN
    8  INCIDENT  REVIEWED  PURSUANT TO SECTION 31.38 OF THE MENTAL HYGIENE LAW,
    9  shall be required to testify as to what transpired thereat. The prohibi-
   10  tion relating to discovery of testimony shall not apply  to  the  state-
   11  ments  made by any person in attendance at such a meeting who is a party
   12  to an action or proceeding the subject matter of which was  reviewed  at
   13  such meeting.
   14    S  4.  This  act shall take effect on the thirtieth day after it shall
   15  have become a law.