Legislation
SECTION 31.37
Mental health incident review panels
Mental Hygiene (MHY) CHAPTER 27, TITLE E, ARTICLE 31
§ 31.37 Mental health incident review panels.
(a) The commissioner shall establish no less than one mental health
incident review panel per quarter to review the circumstances and events
related to an incident involving a person with serious mental illness
occurring in the community that involved the use of deadly physical
force, as defined by subdivision eleven of section 10.00 of the penal
law, and resulted in serious physical injury, as defined by subdivision
ten of section 10.00 of the penal law, to another. In selecting an
incident to be reviewed, the commissioner shall review requests from
local governmental units, or non-governmental organizations or
not-for-profit entities involved with the provision of mental health
care or that represent the interests of people with mental illness and
shall identify an incident appropriate for an incident review panel,
consistent with the purposes of this section.
(a-1) The commissioner may establish, on their own accord, additional
mental health incident review panels for the purposes of reviewing in
conjunction with local representation, the circumstances and events
related to a serious incident involving a person with mental illness.
For purposes of this section, a "serious incident involving a person
with mental illness" means an incident occurring in the community in
which a person with a serious mental illness suffers physical injury as
defined in subdivision nine of section 10.00 of the penal law or causes
such physical injury to another person, or suffers a serious and
preventable medical complication or becomes involved in a criminal
incident involving violence.
(a-2) A panel established under this section shall conduct a review of
such incident for the purpose of identifying problems or gaps in mental
health delivery systems and to make recommendations for corrective
actions to improve the provision of mental health or related services,
to improve the coordination, integration and accountability of care in
the mental health service system, and to enhance individual and public
safety.
(b) A mental health incident review panel shall include
representatives from the office of mental health, the division of
criminal justice services, and the chief executive officer or designee
of the local governmental unit where the serious incident involving a
person with a mental illness occurred. A mental health incident review
panel may also include, if deemed appropriate by the commissioner based
on the nature of the serious incident being reviewed, one or more
representatives from mental health providers, local departments of
social services, human services programs, hospitals, local schools,
emergency medical or mental health services, the office of the county
attorney, state or local police agencies, the office of the medical
examiner or the office of the coroner, the judiciary, or other
appropriate state or local officials; provided, however, that a local
law enforcement official may not serve as a member of such a review
panel if such local law enforcement official's office or agency is
directly involved in any ongoing investigation or prosecution of a crime
under review by the panel, or any appeal of a criminal conviction for
such crime.
(c) (i) Notwithstanding any other provision of law to the contrary and
to the extent consistent with federal law, a mental health incident
review panel shall have access to those relevant client-identifiable
mental health records, as well as all records, documentation and reports
relating to the investigation of an incident by the justice center,
pursuant to article twenty of the executive law and an incident by a
facility in accordance with regulations of the commissioner, which are
necessary for the investigation of the serious incident involving a
person with mental illness and the preparation of a report of such
incident, as provided in subdivision (e) of this section. A mental
health incident review panel investigating a serious incident involving
a person with a mental illness pursuant to this section shall be
provided with access to all relevant, non-privileged records in the
possession of state or local officials or agencies, within twenty-one
days of receipt of a request, except: (A) those records protected by
section 190.25 of the criminal procedure law; (B) where providing law
enforcement records would interfere with an ongoing law enforcement
investigation or judicial proceeding, identify a confidential source or
disclose confidential information relating to an ongoing criminal
investigation, highly sensitive criminal investigative techniques or
procedures, or endanger the safety or welfare of an individual; (C) with
respect to any such record that is privileged, where the privilege is
held by the official or agency and no separate privilege held by an
individual applies, such official or agency shall be authorized to waive
such official's or agency's privilege, as applicable, and provide such
record; and (D) whenever an agency, director or unit believes pursuant
to subparagraph (B) of this paragraph that release of records would
interfere with a judicial proceeding, it shall identify that proceeding,
and the mental health incident review panel shall be authorized, upon
notice to such agency, director or unit, to request in writing to the
judge before whom such judicial proceeding is pending, that such judge
determine whether access to such records should be denied on the ground
that release of such records would interfere with the pending
proceeding. Upon receipt of such a request, the judge shall offer the
agency, director or unit and the panel a reasonable opportunity to be
heard, and may review the disputed records in camera. The judge shall
submit its determination to the agency, director or unit and the mental
health incident review panel, and the agency, director or unit shall
then proceed in accordance with the judge's determination.
(ii) In any case in which access to records is denied pursuant to this
subdivision, the appropriate agency shall inform the panel in writing of
the reasoning for such denial.
(d) Mental health incident review panels and members of the review
panels shall have immunity from civil and criminal liability for all
reasonable and good faith actions taken pursuant to this section, and
shall not be questioned in any civil or criminal proceeding regarding
any discussions, deliberations or findings relating to the official
duties of such review panel. Nothing in this section shall be construed
to prevent a person from testifying as to information obtained
independently of a mental health incident review panel, or information
which is public.
(d-1) Persons who present information to the panel shall have immunity
from civil and criminal liability for all reasonable and good faith
actions taken pursuant to this section, and shall not be questioned in
any civil or criminal proceeding regarding their authorized
participation at a meeting of the panel. Neither information nor records
relating to the performance of a review panel function, nor a person's
participation in a review panel shall be subject to disclosure pursuant
to article thirty-one of the civil practice law and rules. Nothing in
this section shall be construed to prevent the disclosure of, or
testimony regarding, information that exists or is obtained
independently of the panel or information that is public.
(e) Notwithstanding any other provision of law to the contrary, all
meetings conducted, all reports and records made and maintained and all
books and papers obtained by a mental health incident review panel shall
be confidential, and shall not be open or made available, except by
court order for good cause shown or as set forth in subdivision (g) of
this section. Each mental health incident review panel shall develop a
report of the incident investigated. Such report shall not contain any
individually identifiable information and shall be provided to the
office of mental health upon completion. Records, reports, information
regarding testimony and other information gathered by the panel shall
not be further disseminated by a panel member.
(f) If quality problems of particular mental health programs are
identified based on such reviews, the commissioner is authorized,
pursuant to the relevant provisions of this chapter, to take appropriate
actions regarding the licensure of particular providers, to refer the
issue to other responsible parties for investigation, or to take other
appropriate action within the scope of his or her authority.
(g) In accordance with section 33.13 of this title, the commissioner
shall provide the final report of a review panel or portions thereof to
any individual or entity for whom the report makes recommendations for
corrective or other appropriate actions. Any final report or portion
thereof shall be confidential. Any individual or entity receiving the
report shall be prohibited from further disseminating such report.
Further, the commissioner shall notify the temporary president of the
senate and the speaker of the assembly of the issuance of the reports.
(h) The commissioner shall, every two years, submit a cumulative
report to the governor and the legislature incorporating the data in the
mental health incident review panel reports and including a summary of
the findings and recommendations made by such review panels and, to the
extent practicable, any recommendations that have been implemented,
including recommendations from prior reports, and the impact of such
implementations. The cumulative reports shall thereafter be made
available to the public on the official agency website for the office of
mental health, consistent with federal and state confidentiality
protections.
(a) The commissioner shall establish no less than one mental health
incident review panel per quarter to review the circumstances and events
related to an incident involving a person with serious mental illness
occurring in the community that involved the use of deadly physical
force, as defined by subdivision eleven of section 10.00 of the penal
law, and resulted in serious physical injury, as defined by subdivision
ten of section 10.00 of the penal law, to another. In selecting an
incident to be reviewed, the commissioner shall review requests from
local governmental units, or non-governmental organizations or
not-for-profit entities involved with the provision of mental health
care or that represent the interests of people with mental illness and
shall identify an incident appropriate for an incident review panel,
consistent with the purposes of this section.
(a-1) The commissioner may establish, on their own accord, additional
mental health incident review panels for the purposes of reviewing in
conjunction with local representation, the circumstances and events
related to a serious incident involving a person with mental illness.
For purposes of this section, a "serious incident involving a person
with mental illness" means an incident occurring in the community in
which a person with a serious mental illness suffers physical injury as
defined in subdivision nine of section 10.00 of the penal law or causes
such physical injury to another person, or suffers a serious and
preventable medical complication or becomes involved in a criminal
incident involving violence.
(a-2) A panel established under this section shall conduct a review of
such incident for the purpose of identifying problems or gaps in mental
health delivery systems and to make recommendations for corrective
actions to improve the provision of mental health or related services,
to improve the coordination, integration and accountability of care in
the mental health service system, and to enhance individual and public
safety.
(b) A mental health incident review panel shall include
representatives from the office of mental health, the division of
criminal justice services, and the chief executive officer or designee
of the local governmental unit where the serious incident involving a
person with a mental illness occurred. A mental health incident review
panel may also include, if deemed appropriate by the commissioner based
on the nature of the serious incident being reviewed, one or more
representatives from mental health providers, local departments of
social services, human services programs, hospitals, local schools,
emergency medical or mental health services, the office of the county
attorney, state or local police agencies, the office of the medical
examiner or the office of the coroner, the judiciary, or other
appropriate state or local officials; provided, however, that a local
law enforcement official may not serve as a member of such a review
panel if such local law enforcement official's office or agency is
directly involved in any ongoing investigation or prosecution of a crime
under review by the panel, or any appeal of a criminal conviction for
such crime.
(c) (i) Notwithstanding any other provision of law to the contrary and
to the extent consistent with federal law, a mental health incident
review panel shall have access to those relevant client-identifiable
mental health records, as well as all records, documentation and reports
relating to the investigation of an incident by the justice center,
pursuant to article twenty of the executive law and an incident by a
facility in accordance with regulations of the commissioner, which are
necessary for the investigation of the serious incident involving a
person with mental illness and the preparation of a report of such
incident, as provided in subdivision (e) of this section. A mental
health incident review panel investigating a serious incident involving
a person with a mental illness pursuant to this section shall be
provided with access to all relevant, non-privileged records in the
possession of state or local officials or agencies, within twenty-one
days of receipt of a request, except: (A) those records protected by
section 190.25 of the criminal procedure law; (B) where providing law
enforcement records would interfere with an ongoing law enforcement
investigation or judicial proceeding, identify a confidential source or
disclose confidential information relating to an ongoing criminal
investigation, highly sensitive criminal investigative techniques or
procedures, or endanger the safety or welfare of an individual; (C) with
respect to any such record that is privileged, where the privilege is
held by the official or agency and no separate privilege held by an
individual applies, such official or agency shall be authorized to waive
such official's or agency's privilege, as applicable, and provide such
record; and (D) whenever an agency, director or unit believes pursuant
to subparagraph (B) of this paragraph that release of records would
interfere with a judicial proceeding, it shall identify that proceeding,
and the mental health incident review panel shall be authorized, upon
notice to such agency, director or unit, to request in writing to the
judge before whom such judicial proceeding is pending, that such judge
determine whether access to such records should be denied on the ground
that release of such records would interfere with the pending
proceeding. Upon receipt of such a request, the judge shall offer the
agency, director or unit and the panel a reasonable opportunity to be
heard, and may review the disputed records in camera. The judge shall
submit its determination to the agency, director or unit and the mental
health incident review panel, and the agency, director or unit shall
then proceed in accordance with the judge's determination.
(ii) In any case in which access to records is denied pursuant to this
subdivision, the appropriate agency shall inform the panel in writing of
the reasoning for such denial.
(d) Mental health incident review panels and members of the review
panels shall have immunity from civil and criminal liability for all
reasonable and good faith actions taken pursuant to this section, and
shall not be questioned in any civil or criminal proceeding regarding
any discussions, deliberations or findings relating to the official
duties of such review panel. Nothing in this section shall be construed
to prevent a person from testifying as to information obtained
independently of a mental health incident review panel, or information
which is public.
(d-1) Persons who present information to the panel shall have immunity
from civil and criminal liability for all reasonable and good faith
actions taken pursuant to this section, and shall not be questioned in
any civil or criminal proceeding regarding their authorized
participation at a meeting of the panel. Neither information nor records
relating to the performance of a review panel function, nor a person's
participation in a review panel shall be subject to disclosure pursuant
to article thirty-one of the civil practice law and rules. Nothing in
this section shall be construed to prevent the disclosure of, or
testimony regarding, information that exists or is obtained
independently of the panel or information that is public.
(e) Notwithstanding any other provision of law to the contrary, all
meetings conducted, all reports and records made and maintained and all
books and papers obtained by a mental health incident review panel shall
be confidential, and shall not be open or made available, except by
court order for good cause shown or as set forth in subdivision (g) of
this section. Each mental health incident review panel shall develop a
report of the incident investigated. Such report shall not contain any
individually identifiable information and shall be provided to the
office of mental health upon completion. Records, reports, information
regarding testimony and other information gathered by the panel shall
not be further disseminated by a panel member.
(f) If quality problems of particular mental health programs are
identified based on such reviews, the commissioner is authorized,
pursuant to the relevant provisions of this chapter, to take appropriate
actions regarding the licensure of particular providers, to refer the
issue to other responsible parties for investigation, or to take other
appropriate action within the scope of his or her authority.
(g) In accordance with section 33.13 of this title, the commissioner
shall provide the final report of a review panel or portions thereof to
any individual or entity for whom the report makes recommendations for
corrective or other appropriate actions. Any final report or portion
thereof shall be confidential. Any individual or entity receiving the
report shall be prohibited from further disseminating such report.
Further, the commissioner shall notify the temporary president of the
senate and the speaker of the assembly of the issuance of the reports.
(h) The commissioner shall, every two years, submit a cumulative
report to the governor and the legislature incorporating the data in the
mental health incident review panel reports and including a summary of
the findings and recommendations made by such review panels and, to the
extent practicable, any recommendations that have been implemented,
including recommendations from prior reports, and the impact of such
implementations. The cumulative reports shall thereafter be made
available to the public on the official agency website for the office of
mental health, consistent with federal and state confidentiality
protections.