During her State of the State address on January 14, 2025, NYS Governor Kathy Hochul reiterated her ongoing commitment to the expansion of the continuum of care for those in need of mental health services and supports. Governor Hochul referenced a few specific initiatives designed to impact the mental health system, including updating involuntary commitment law, strengthening Kendra’s Law, addressing the youth mental health crisis, and continued funding for current program enhancements.
This alert will focus on the features of Governor Hochul’s plan that contemplate changes to New York’s Mental Hygiene Law, which governs involuntary care and treatment, and other legislative efforts to achieve a similar goal. Together these and other proposed changes would have a profound impact on the way providers care for the most seriously and persistently ill patients. It will allow hospitals to re-engineer the staffing patterns in emergency departments and inpatient care environments. It will alter the various mechanisms for removal of persons in need from the community, significantly increasing the universe of caregivers authorized to initiate removals. For many, it may represent a reduction in the quantum of clinical evaluation required to authorize involuntary interventions, and, as such, alters the due process equation that has been in place for decades. Supporters of the changes insist that they are necessary because the way care is delivered and the way the behavioral health system responds to crises has evolved significantly over those decades, rendering the existing language obsolete. In any event, if any of the current legislative proposals become law, there will be constitutional due process challenges from patients and patient advocates.
Consideration of Clinical History in Dangerousness Determinations
What we understand now better than we did decades ago, when the removal and retention statutes were enacted, is that a person’s clinical history is important evidence when assessing clinical need, particularly in crisis situations. A history of a pattern of decompensation, hospitalization, release, and decompensation is routinely and appropriately considered in these assessments, and the bill language would make this affirmative law. Governor Hochul, in a press release following the State of the State Address, stated:
The updated law will allow intervention when individuals are at substantial risk of harm due to their inability to meet basic needs like food, shelter, or medical care. . . . These changes will clarify that evidence of imminent risk or recent overt acts is not required, enabling earlier intervention . . . . The revised standards will require evaluators to consider a comprehensive set of factors, including behavioral history and long-term health consequences. Hospitals will also notify community providers upon client admission or discharge, ensuring continuity of care.
Using language similar to that used in the governor’s proposed budget, bill A00137 has been introduced before the Mental Health Committee of the New York State Assembly that would amend the definition of “in need of involuntary care and treatment” in Section 9.01 of the New York Mental Hygiene Law to include the following:
Care and treatment in a hospital shall be considered essential to a person’s welfare if, in the absence of such care and treatment, the person’s mental illness is likely to result in serious harm to self or others.
The definition of “likely to result in serious harm to self or others” would also be amended to allow consideration of psychiatric as well as physical harm and consideration of a
“substantial inability of the person to meet such person’s basic need for food,
clothing, shelter, or medical care.”
The intent to codify a standard allowing interventions to be based in part on clinical history and patterns of behavior, and which does not require active and immediate threats of physical harm is made explicit in an entirely new subsection included in budget proposal and bill A00137:
Clinical determination of risk of harm. A clinical determination of whether a person’s mental illness is likely to result in serious harm to self or others shall take account of:
(a) all relevant information presented to the evaluating facility’s staff, including credible reports of the person’s recent behavior and any known information related to the person’s medical and behavioral history;
(b) the person’s current ability, with available support, to adhere to outpatient treatment; and
(c) the expected long-term impact on the person’s health or safety of actions or self-neglect caused by mental illness. (Proposed Section 9.04)
It is important to note that the courts have considered the issue and have upheld the broader standard following In Matter of Seltzer v. Hogue (187 AD2d 230 [2d Dept 1993]), where the Appellate Division, Second Department, upheld the involuntary retention of an individual whose behavior improved in the hospital yet who, upon discharge, would not comply with treatment and quickly deteriorated.
Expansion of Removal and Retention Authority
Governor Hochul’s plan also includes a significant expansion of the authority to have an individual involuntarily removed from the community or hospitalized. The governor’s press release also states that the authority will be expanded to include psychiatric nurse practitioners, and the budget language reflects that limited expansion. Bill A00137 creates a new statutory category of “qualified clinical examiner,” defined with new language:
“qualified clinical examiner” means a psychiatric nurse practitioner certified by the department of education, a psychologist licensed pursuant to article one hundred fifty-three of the education law, or a clinical social worker licensed pursuant to article one hundred fifty-four of the education law.
The existing removal and retention laws have one thing in common. They arrive at a determination of need for involuntary care in different ways but ultimately require these determinations by two licensed physicians, which are then confirmed by a licensed psychiatrist. The assembly proposal would authorize involuntary removals and retentions without evaluation by a physician or psychiatrist.
The fundamental question that will inevitably emerge as bill A00137 progresses will be while examination by a licensed physician or psychiatrist is sufficient to support involuntary interventions, are physician determinations necessary? The governor’s proposal to expand authority only to psychiatric nurse practitioners is a less significant change but provokes the same question. In other words, do psychiatric nurse practitioners, licensed psychologists, and licensed clinal social workers also possess sufficient competence, experience, and training to make determinations impacting an individual’s constitutional liberty interest. There is much evidence that they do, and that will be a central debate.
This is Part 1 in a series of alerts analyzing Governor Hochul’s legislative agenda for New York State Office of Mental Health programming. Coming up next will be a review of the proposed changes to Kendra’s Law and OMH crisis programming. Finally, we will be presenting a webinar which will take a deeper dive into the current proposals and the significant changes they promise. Be on the lookout for updates from Barclay Damon.
If you have any questions regarding the content of this alert, please contact Keith Brennan, of counsel, at kbrennan@barclaydamon.com, or another member of the firm’s Health & Human Services Providers or Health Care Controversies Teams.