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

Dear Speaker Silver:

It is my pleasure to present you with the 1997 annual report of the Assembly's Standing Committee on Mental Health, Mental Retardation and Developmental Disabilities.

As you know, budget constraints forced us to make many difficult choices during the 1997 Session as we sought to ensure quality care for all individuals with mental disabilities. With your support, however, we were able to restore funding for critical programs in the 1997-98 budget and defeat dangerous Medicaid reductions.

During budget deliberations, we rejected the Governor's proposal to reduce Community Mental Health Reinvestment funding by one-half this year and three-quarters in FY 1998-99. We also rejected proposals to eliminate enhanced State aid for mental hygiene programs, reduce support for comprehensive outpatient mental health services, and abolish 15 positions at the Office of Mental Health's two research institutes.

We also provided additional funding for new housing opportunities for the mentally disabled, a residential provider cost of living adjustment, two new research institute programs, new slots for emotionally disturbed children in the home and community-based waiver program, Hispanic bilingual mental health clinics, and compulsive gambling treatment and prevention.

I would like to thank you for your support of the Committee's activities in 1997 and look forward to continuing our efforts in 1998.

Sincerely,

James F. Brennan
Chair

1997 ANNUAL REPORT
OF THE
NEW YORK STATE ASSEMBLY
STANDING COMMITTEE ON
MENTAL HEALTH, MENTAL RETARDATION AND
DEVELOPMENTAL DISABILITIES

James F. Brennan
Chair

Staff

Lorrie Smith - Legislative Associate
Joe Rutherford - Program Legislative Associate
Deb Holland - Program Committee Assistant
Karen B. Lipson - Program Counsel
Lisa Forkas - Committee Clerk
Antoinette Nowak - Program Secretary

I. INTRODUCTION

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 1997 Session, the Committee's principal focus was mitigating the impact of proposed budget cuts on consumers, providers and families. With Committee support, the Assembly rejected the harshest of the Executive's recommended spending reductions, including cuts in Community Mental Health Reinvestment funding, COPS clinics and unified services.

Also with Committee support, the Assembly blocked Governor Pataki's Medicaid cost containment proposals to limit alternate level of care payments for psychiatric patients in general hospitals, cap payments for inpatient psychiatric units of general hospitals, reduce reimbursement for inpatient psychiatric operating costs in general hospitals, to require a local share for 'overburden' aid, and others.

Eighty-four bills were referred to the Committee during the 1997 Legislative Session. One was signed into law by Governor Pataki and one was vetoed.

The following is a detailed report of the Committee's activities during the 1997 Session and a preview of some of the issues we will be addressing during the 1998 Session.

II. COMMITTEE ACTIVITIES

A. 1997-98 STATE BUDGET

Mitigating the impact of Governor Pataki's 1997-98 budget proposals on OMH, OMRDD, and programs licensed or operated by these agencies occupied much of the Committee's time during the 1997 Legislative Session. While the Governor's budget recommendations forced the Assembly to make many difficult decisions regarding funding priorities, the Committee worked hard to ensure the continuation of crucial programs and services for the mentally ill, the mentally retarded and the developmentally disabled.

Despite budget constraints, the Committee succeeded in restoring as well as adding funding for a number of important programs. The following is a listing of some of the key FY 1997-98 budget actions for OMH and OMRDD.

1. Office of Mental Health

Community Mental Health Reinvestment Program - The Assembly secured full funding for the program in FY 1997-98, rejecting Governor Pataki's proposal to reduce it by one-half in FY 1997-98 and by three-quarters in FY 1998-99. Thanks to the Assembly restoration of $6,050,000 ($12,100,000, full annual), the program's appropriation authority is $12,100,000 for FY 1997-98 ($24,200,000, full annual).

Governor Pataki also recommended a number of other changes to the program, all of which the Assembly rejected. The Governor proposed to restructure the program by basing future funding on savings generated by Special Needs Plans. The current funding formula for the program bases annual reinvestment amounts on State savings from the closure of beds and institutions. The Governor also proposed to allow local governments to dedicate up to 7% of reinvestment allocations to State operated community services. The current program requires local governments to spend at least 7% on such services. Finally, Governor Pataki wanted to repeal requirements for additional spending on services for the homeless mentally ill and mentally ill chemical abusers.

Closure, Consolidation and Downsizing of Facilities - Governor Pataki recommended NO institutional closures or consolidations during FY 1997-98. However, OMH expects to reduce the adult inpatient bed census by 525 (125 geriatric and 400 non-geriatric) to 5,825 (505 geriatric and 5,320 non-geriatric) by March 31, 1998.

Workforce - Governor Pataki recommended eliminating 791 positions from the OMH workforce during FY 1997-98 through a combination of attrition, transfers and retirements. NO layoffs were planned. The Legislature rejected the Governor's proposal to centralize the agency's appointing authority with the OMH Commissioner.

Research Institutes - The Assembly restored $428,000 ($856,000, full annual) in funding to preserve 15 research positions at the New York Psychiatric Institute (PI) in Manhattan and the Nathan S. Kline Institute for Psychiatric Research (NKI) in Orangeburg (Rockland County).

Additional funding of $400,000 was provided for creation of six research scientist positions in a new bi-polar disorder unit and three support staff at PI. Another $400,000 was added to support six research scientist positions and scientific equipment at NKI.

Comprehensive Outpatient Services (COPS) - The Assembly provided $4.9 million to restore funding for COPS programs for adults with mental illness and children with serious emotional disturbance. Governor Pataki proposed to reduce COPS rates for providers with excessive costs, decrease the COPS volume corridor from 10% to 5% and substitute State aid funding with Medicaid in the clinic and/or continuing day treatment programs of COPS providers. COPS providers receive a supplemental reimbursement under the Medicaid program to ensure access to services regardless of a patient's ability to pay.

Adult Supported Housing Program - The Assembly provided $2.0 million to add 200 new beds to this program, which provides oversight for persons in scatter-site rental housing. Governor Pataki proposed no new funding for housing the mentally ill.

Residential Provider Cost of Living Adjustment (COLA) - The Assembly provided $2.85 million in funding to support a 1% COLA for voluntary operated residential programs (community residences and supported housing) for adults and children. Governor Pataki proposed no COLA for community residential programs.

Unified Services - The Assembly provided $2.3 million to restore enhanced State aid for community mental health services in Rensselaer, Rockland, Warren, Washington and Westchester counties. Governor Pataki proposed to eliminate this aid, which is only provided in these 5 counties.

Children's Home and Community-Based Services (HCBS) Medicaid Waiver - The Assembly provided $800,000 for 27 new slots in this program, which serves children in community residential settings who would otherwise be Medicaid reimbursable in institutional settings only. Governor Pataki proposed no new slots for this program. A total of 177 HCBS waiver slots have been created since the program began in FY 1994-95.

Hispanic Bilingual Mental Health Clinics - The Assembly provided $600,000 in funding for the State share of Medicaid for at least four Hispanic mental health clinics that are expected to open in New York City in FY 1997-98: 2 in Brooklyn, 1 in the Bronx and 1 in Manhattan.

Compulsive Gambling Programs - The Assembly provided additional, one-time, funding of $300,000 for compulsive gambling treatment, prevention, education outreach and referral programs. Two of the six existing service providers -- Jewish Family Services of Buffalo and the St. Vincent's/North Richmond Gambling Treatment Center -- will receive $50,000 each. The rest of the funding will be divided among all six providers. Governor Pataki proposed no new funding for compulsive gambling programs.

2. Office of Mental Retardation and Developmental Disabilities

Closure and Consolidation of Facilities - Governor Pataki recommended NO institutional closures or consolidations during FY 1997-98. However, OMRDD intends to move an additional 515 individuals out of State-operated developmental centers (DCs) into community settings. By the end of FY 1997-98, 2,270 individuals are expected to be living in the State's eight DCs. New admissions are limited to emergency situations only and to individuals entering 123 secure treatment beds to be developed at Sunmount DC (87 beds), Monroe DC (24 beds) and Brooklyn DC (12 beds).

State-Operated Pharmacy Positions - The Assembly provided $500,000 in funding to preserve 55 State-operated pharmacy positions Governor Pataki proposed to eliminate.

Community-Based Residential Opportunities - The Assembly provided $2 million in additional funding for approximately 60 new residential opportunities and related services in community settings. Governor Pataki proposed $6 million in new residential placements for community clients living at home in FY 1997-98. The Assembly restoration increases the availability of residential opportunities for high priority placements, in light of lengthy waiting lists and negligible development last year.

Residential Provider Cost of Living Adjustment (COLA) - The Assembly provided $1,065,000 in funding to support a 1% COLA for voluntary operated community residential providers.

Unified Services - The Assembly provided $1.1 million in additional funding to restore enhanced State aid for community mental retardation and developmental disability services in Rensselaer, Rockland, Warren, Washington and Westchester counties.

Group Home for Medically Frail Children - The Assembly provided $500,000 for start-up and operation of a group home for medically frail children on Long Island.

Self Advocacy - The Assembly provided $32,000 for the Self Advocacy Association of New York State, which provides assistance to grass-roots groups that empower consumers to speak for themselves and advocate on their own behalf.

3. Medicaid

Limit Inpatient Psychiatric to 60 Days - The Assembly rejected limiting Medicaid reimbursement for inpatient psychiatric services to 60 days per episode of illness.

Caps on Payments for Inpatient Psychiatric - The Assembly rejected capping Medicaid payments for inpatient psychiatric units of general hospitals at the regional average.

Reduction in Reimbursement in Exempt Units - The Assembly rejected reducing Medicaid reimbursement for operating costs of inpatient psychiatric services in general hospitals by 5%.

15-Day Limits on Alternate Level of Care (ALC) Payments - The Assembly rejected limiting Medicaid reimbursement to 15 days for general hospitals with ALC patients who are no longer in need of acute care, but cannot be discharged.

Reimbursement Rates for Non-Emergency Visits - The Assembly rejected limiting Medicaid reimbursement for non-emergency emergency room visits to a clinic rate of $62.50/visit, instead of $95/visit.

Outpatient and Emergency Room Rate Reduction - The Assembly rejected reducing Medicaid reimbursement for hospital outpatient department and emergency room services by $5/visit.

Cap on Mental Health Hospital Outpatient Services - The Assembly rejected capping Medicaid reimbursement for mental health outpatient services provided by a general hospital to $62.50/visit.

Local Share for 'Overburden Aid' - The Assembly rejected requiring counties to contribute a local share of Medicaid for health care services general hospitals provide to mentally disabled clients.

Reduction in State Share of Transportation Costs - The Assembly rejected reducing the State share of Medicaid transportation costs in counties not participating in the Medicaid managed care waiver or an approved transportation waiver.

Phase-Out of Gross Receipts Assessment on Residential Treatment Facilities (RTFs) and Private Psychiatric Hospitals - The Assembly added provisions to phase out the gross receipts assessment on RTFs for children and adolescents and private psychiatric hospitals. After December 1, 1998, the assessment will be 0.5%; after April 1, 1999, 0.3%; after April 1, 2000, 0.2%. After April 1, 2001, the assessment will be eliminated.

Additional Assessment on RTFs and Private Psychiatric Hospitals - The Assembly added provisions to eliminate the additional assessment of 0.1% on RTFs and private psychiatric hospitals after December 1, 1997.

Utilization Review (UR) of Private Psychiatric Hospitals - The Assembly added provisions which require OMH and the Department of Health to develop child-specific UR criteria for reviewing psychiatric admissions of patients under 18 years of age.

Start-Up Grants for HIV and Mental Health Special Needs Plans (SNPs) - The Assembly added provisions which allow for up to $4 million in start-up grants for groups seeking certification to operate comprehensive HIV or mental health SNPs.

Reimbursement for Clinic Services for Dually Eligible Individuals -The Assembly added a provision which requires payment up to the Medicaid reimbursement rate, minus the amount received from Medicare, for dually eligible individuals with disabilities receiving clinic services from DOH-licensed Diagnostic and Treatment Clinics and OMRDD-licensed outpatient clinics.

Caps on Epilepsy Services in General Hospitals - The Assembly rejected capping Medicaid reimbursement for epilepsy services units of general hospitals at the regional average.

Reimbursement Reduction for Epilepsy Services in General Hospitals - The Assembly rejected reducing Medicaid reimbursement for services provided in epilepsy units in general hospitals by 5%.

Repeal of Minimum Payment Level Language - The Assembly rejected repealing language that ensures minimum payment levels for hospital, home care provider and hospice services.

Phase-Out of Gross Receipts Assessment on Providers of Day Treatment Services - The Assembly added provisions to phase out an assessment on the gross receipts of day treatment service providers. After December 1, 1999, the assessment will be 0.3%; after April 1, 2000, 0.2%. After April 1, 2001, the assessment will be eliminated.

Gross Receipts Assessment on Intermediate Care Facilities (ICFs) - The Assembly added provisions to make the entire 0.6% assessment on the gross receipts of ICFs received after April 1, 2001 reimbursable.

4. Other Programs of Interest

Primary Mental Health Project - The Assembly restored $570,000 in funding for this nationally-recognized, school-based prevention project, which focuses on early detection of school adjustment problems.

Institute for Rehabilitative Services - The Legislature restored $25,000 in funding for this innovative pilot program which serves individuals with chronic illnesses (like Alzheimer's disease) who do not have an official service agency and network that allows them to receive care in the community.

B. CONSUMER CARE ISSUES

1. Mental Health Special Needs Plans (SNPs)

The Committee continues to monitor the process by which the Office of Mental Health (OMH) and the Department of Health (DOH) establish a limited number of Medicaid Managed Care programs, known as Mental Health Special Needs Plans (SNPs), to serve adults diagnosed with serious mental illness and children and adolescents diagnosed with severe emotional disturbances.

Chapter 649 of the Laws of 1996 authorized OMH and DOH to certify up to six mental health SNPs for adults and up to three for children and adolescents. SNPs are a major part of the State's 1115 Demonstration Waiver, which recommended restructuring New York's existing Medicaid program to incorporate principles of managed care. The U.S. Health Care Financing Administration (HCFA) approved the State's waiver proposal in July 1997.

In January 1997, OMH and DOH issued a Request for Information (RFI) for adult mental health SNPs. The RFI solicited ideas and information to be used in developing a Request for Proposals (RFP) for selecting the adult SNPs. Based on comments received regarding the RFI, OMH and DOH issued a Draft RFP in September 1997.

[NOTE: OMH and DOH do not plan to issue an RFI for mental health SNPs for children and adolescents until after the agencies receive responses to the RFP for adult SNPs. Enrollment in SNPs for children and adolescents is not expected to begin until 1999 at the earliest.]

During the Fall of 1997, OMH and DOH intends to issue a "data book" providing historical utilization and cost information on the SNP eligible population and Call Letters to counties soliciting their interest in participating in the SNP program. During the Winter of 1998, OMH and DOH expect to receive county Letters of Intent and select the counties and/or groups of counties that will be included in SNP implementation. SNP capitation rates will be issued.

OMH and DOH will select winning bidders during the Summer of 1998. By the Fall of 1998, OMH and DOH expect that contracts will be signed, certificates of authority will be issued and enrollment will have begun.

2. Involuntary Commitment Information

The Committee reported legislation (A.1923, Brennan) that would clarify the rights and responsibilities of physicians, police officers and peace officers, regarding those eligible for involuntary commitment under Article 9 of the Mental Hygiene Law. The legislation seeks to clarify these rights and responsibilities through regulations requiring dissemination of appropriate forms and educational materials by the Commissioner of Mental Health. The bill passed the Assembly, but died in the Senate Mental Health and Developmental Disabilities Committee.

3. Presumptive Medicaid Eligibility

Many mentally ill persons are discharged from inpatient psychiatric units before their eligibility for Medicaid benefits is determined. In order to maintain clinical stability, these patients must receive medications and other health services continuously upon discharge. Without such services, these patients often decompensate and require costly rehospitalizations.

To avoid such situations, the Committee reported legislation (A.6367, Brennan) to include uninsured persons discharged from mental hospitals in the Medicaid presumptive eligibility program, as recommended in a 1993 OMH report, ensuring continuous access to medications and other services. The bill passed the Assembly, but died in the Senate Rules Committee.

4. Civil Commitment Proceedings

Over the years, many mentally retarded and multiply disabled persons have received services in psychiatric hospitals, even though OMH clinicians have believed that such individuals would be more appropriately served in facilities operated or licensed by OMRDD. Although there is an unquestioned right to appropriate treatment, under existing State law there is no statutory remedy whereby an individual, inappropriately confined by either the OMH or OMRDD system, can assert his or her established right to treatment suited to his or her individual needs.

To address these concerns, the Committee reported legislation (A.1925, Brennan) to give courts, in civil commitment proceedings, clear authority to direct the transfer of inappropriately confined patients to the jurisdiction of the proper Department of Mental Hygiene Office. The bill passed the Assembly, but died in the Senate Rules Committee.

5. Involuntary Outpatient Commitment Program

In 1994, the Committee supported the enactment of the Involuntary Outpatient Commitment pilot program (Chapter 560 of the Laws of 1994) to be implemented at a general hospital with a psychiatric unit operated by the New York City Health and Hospitals Corporation (HHC). Patients who have a history of serious mental illness and repeated involuntary hospitalizations due to non-compliance were eligible for the program. The legislation authorized the program for three years, and required that an independent study be conducted and then a final report issued on the effectiveness of the program by March 1, 1998.

Due to unforseen start-up delays which prevented implementation of the program until January 1996, rather than July of 1995, Chapter 104 of the Laws of 1997 (A.3383, Connelly) will extend the pilot Involuntary Outpatient Commitment program from June 30, 1998 to June 30, 1999 and extend the due date of the final report from March 1, 1998 to March 1, 1999.

6. Short-Term Involuntary Protective Services

The Committee reported legislation [A.7716-B, Rules (Brennan)] to allow OMRDD to petition to provide short-term involuntary protective services to disabled adults whose health and safety are in imminent danger. Currently, only local social services officials have the authority to seek short-term involuntary protective services orders to protect endangered adults. To expedite the delivery of protective services to endangered adults, this legislation would give OMRDD the authority to intercede without extensive consultation with local social services districts. The Codes Committee did not report the bill, but the Committee will continue to work on this important issue during the upcoming session.

7. Increased Protections for the Mentally Disabled

The Committee reported legislation [A.7788-A, Rules (Stringer)] to require the Commissioners of OMH and OMRDD to ascertain the status of the driver's license of individuals who transport persons with mental disabilities. Presently, there is no authority in statute to monitor or control the quality of the drivers who transport consumers. Under current law, only the transport of female persons with mental disabilities are addressed by requiring them to be accompanied by another female or a family member.

This bill would also authorize the Commissioners of OMH and OMRDD to have access to the hospital records of the mentally disabled, when the Commissioners are investigating incidents of death, abuse, mistreatment or neglect. Currently, these records are confidential pursuant to the Public Health Law and may not be released to either Commissioner. The bill was held for further review in the Assembly Codes Committee. The Committee plans to continue to work with the Codes Committee on this issue.

C. CHILDREN'S CARE ISSUES

1. Treatment of Children in the Mental Hygiene System

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. Although these children move across service systems, their basic needs and rights remain constant. Children need special protection when separated from their families, but the law does not distinguish them from adults. The Committee reported legislation (A.1924, Brennan) that would establish a clear and consistent set of principles to guide the care and treatment of all children placed in out-of-home settings. The bill passed the Assembly, but died in the Senate Mental Health and Developmental Disabilities Committee.

2. Children in Residential Care and Public Schools

One of the fundamental requirements of State and federal law is the provision of special educational services to children with disabilities in the least restrictive environment. A recent CQC report on residential services for children with serious emotional problems found that 72% of children surveyed for the report were educated in segregated on-campus programs. In stark contrast to this finding, the report also found that 100% of children living in community-based residential programs attended local public schools. This vast difference in placement practices among mental health residential facilities underscores the need to reform the way residential programs provide special education services to children.

The Committee reported legislation (A.1181-A, Sanders) to require OMH residential programs providing educational programs to children to determine whether a child could receive an appropriate education in a public school. 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.

3. Children's Coordinated Services Initiative (CCSI)

The Committee reported legislation (A.1780, Boyland) to codify the CCSI program, which is currently authorized each year in budget language. In this program, localities are responsible for creating a procedure to examine the needs of 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 keep children at home and save the costs of residential placements. The bill passed the Assembly, but died in Senate Rules. The Committee will continue to work to achieve Senate passage of this bill.

4. Equivalent Services for PACC-Certified Children

The Committee reported legislation (A.6641, Brennan) to 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 children who are certified for and awaiting RTF placement 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.

D. SUPPORT FOR CONSUMERS, PARENTS, AND FAMILIES

1. Criminal History Checks

Employees in residential and day programs certified by OHM and OMRDD are responsible for treating and caring for extrememly vulnerable and dependent populations. Many times, persons with mental and developmental disabilities cannot recognize abuse, much less defend themselves against it or report it to authorities.

To protect the health and well-being of persons with mental and developmental disabilities living in community settings, the Committee worked closely with the Codes Committee on legislation [A.8630, Rules (Lentol)] to require providers of service issued an OMH or OMRDD operating certificate to require criminal history information on prospective employees who have direct contact or the potential for direct contact with any patients or clients. The legislation authorizes providers to request and receive such information from the NYS Division of Criminal Justices Services (DCJS). Under provisions of the bill, no fee shall be charged for any criminal history report provided.

The bill passed the Assembly, but died in the Senate Rules Committee. The Committee will continue to work with the Codes Committee, the Senate and the Governor to achieve passage of the legislation.

2. Transitional Care Funding

Transitional care funding allows disabled young adults who age out of out-of-state child care facilities and residential schools to stay in those settings until appropriate placements can be found in the OMH or OMRDD adult care system. The transitional care program was supported by year-to-year budget appropriations from the early 1980s until 1994, when Chapter 600 of the Laws of 1994 codified it and increased State reimbursement for local costs from 50% to 60%. Chapter 600 requires the State to assume full costs of the program on January 1, 1999.

Since enactment of Chapter 600, certain counties have chosen to discontinue payments for transitional care. When the counties withdrew, the State stopped reimbursing their expenses. OMH and OMRDD identified appropriate adult placements for all individuals from counties that withdrew from the program and sought to transfer the young adults back to New York. Some families gave in and accepted the transfers; others resisted and sued to require the State to continue to pay the cost of their treatment. Ultimately, the courts upheld the State's right to handle the issue as it saw fit.

Families continuing to resist live in constant fear that their children will be evicted and left without a home unless they accept "inferior" in-state placements. To ease their concerns, the Committee reported legislation [A.8092-A, Rules (Sanders)], which transfers the responsibility for and the costs of the existing transitional care program from local social services districts to OMH and OMRDD, effective July 1, 1997. The bill passed the Assembly and Senate, but was vetoed by Governor Pataki (Veto Message 26) because of technical flaws. The Governor also said the bill provided no appropriation authority for OMH's and OMRDD's additional expenses.

Following the veto, the sponsor introduced new legislation, [A.8637, Rules (Sanders)], that corrected the technical flaws in A.8092-A. The Committee reported A.8637, which passed the Assembly but died in Senate Rules.

The Governor submitted his own legislation (A.8663, Rules), but the Committee declined to report it because the bill removed the authority of local Committees on Special Education (CSEs) to make placements for children with disabilities. Such authority is provided to local CSEs under Federal law.

The Committee plans to work with the sponsor and the Governor on this vital issue during the 1998 Legislative Session.

3. Early Intervention

In 1992, the Early Intervention Program (EI) was established to provide services to infants and toddlers (ages 0-2) with disabilities and their families. Prior to EI's enactment, family courts authorized services to this population. This system, however, lacked both programmatic and fiscal oversight, and tended to provide uneven access to services throughout the State. EI was developed to direct DOH to create a statewide program that ensures equity in available resources, provides outreach to families, and sets standards that assure high-quality services.

Although parents, providers, and counties have complained about the program, the response of the Pataki administration has been to propose changes in the program aimed more at saving money than at improving services. For example, the Governor proposed establishing a system of parent payments for EI services; eliminating attorney fee reimbursements for parents who, after completing mediation, prevail in impartial hearings or judicial challenges to an order of determination; and requiring parents to provide their county initial service coordinator and/or the ongoing service coordinator with all third party health insurance prior to the implementation of the Individual Family Services Plan when requested by the local government. Because these proposals fail to address issues such as early placement, coordination of services and systems complaints, they would have compounded the existing problems and jeopardized the program's effectiveness.

Rejecting the Governor's proposals as mean spirited and anti-family, for the second year the Committee worked closely with the sponsor and the Health Committee on legislation (A.5375, Bragman) that would require DOH to do a better job of delivering services to needy children at the earliest point in their development; give parents more choice in selecting service providers for their children; clarify the role of service coordinators to ensure that they provide unbiased information and support to families; reiterate that EI services be provided at no cost to the parent; provide State assumption of an additional 10% of EI costs; move the Systems Complaint process from DOH to CQC to ensure that dispute resolution is handled by an unbiased, third party mediator; and give EI stakeholders a voice in administering the program by requiring the Early Intervention Coordinating Council to approve EI regulatory changes.

The bill passed the Assembly, but died in the Senate Health Committee. The Committee will continue to work with the sponsor and the Health Committee on this issue in an attempt to convince the Senate and Governor Pataki to provide a comprehensive solution to the problems of the EI program.

4. Community Mental Health Reinvestment

Since the 1994-95 Fiscal Year, the State has captured savings from downsizing OMH's inpatient mental health system and reinvested them in new community-based mental health services for persons with serious mental illness, including children and adolescents with serious emotional disturbances.

However, the funding mechanism for the program is scheduled to expire in March 1999. In addition, as the State inpatient system grows smaller and approaches the minimum number of necessary inpatient beds, savings and opportunities for new reinvestment funding will greatly diminish.

To address these concerns, the Committee reported legislation (A.6786-A, Sanders) which extends the original Reinvestment program through the 2003-2004 Fiscal Year and creates an additional funding stream for the program under managed care. The bill supplements the current census reduction- and closure-based funding stream with savings achieved by enrolling Medicaid recipients with serious mental illness in mental health special needs plans (SNPs).

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.

5. Guardianship Proceedings

To protect an alleged incapacitated person's access to counsel, the Committee reported legislation [A.7571-A, Rules (Gottfried)] to authorize the court, following dismissal of guardianship proceedings, to direct the petitioner to pay the legal fees of the respondent whether counsel was appointed or privately retained. Under current law, upon dismissal of proceedings to appoint a guardian for an allegedly incapacitated person, the court may only direct a petitioner to pay the legal fees of an appointed attorney for the respondent. The bill passed the Assembly, but died in Senate Rules. The Committee will continue to work to achieve Senate passage of this bill.

6. Mental Disability Public Understanding and Acceptance

People living with mental disabilities frequently confront others who have little comprehension about the nature of their disability. All too often this lack of understanding results in stigmatization, prejudice, and discrimination against those living with mental disabilities.

To reduce the stigma associated with mental disabilities, the Committee reported legislation [A.7717, Rules (Brennan)] which would establish the Mental Disability Public Understanding and Acceptance Program. In consultation with the Mental Disability Public Understanding and Acceptance Program Advisory Council, the Commissioners of OMH, OMRDD, and the Office of Alcoholism and Substance Abuse Services (OASAS) would be required to provide grants to approved organizations to foster public understanding and acceptance of persons living with a mental disability. 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.

E. SERVICE DELIVERY OVERSIGHT AND MANAGEMENT

1. CQC Oversight of Non-Licensed Services

OMH and OMRDD are discharging more and more people into community programs such as supported housing and home and community based waiver services that are funded by the State, but not required to have an operating certificate or license. As this trend continues, there is a greater need for oversight and advocacy to protect the mentally disabled. To address this need, the Committee reported legislation (A.3877, Dinowitz) to require programs funded or administered by OMH and OMRDD to cooperate with CQC oversight activities.

An example of inadequate oversight and advocacy the bill seeks to remedy involved a man with Prader-Willi Syndrome who was discharged back to his own apartment by a State facility. Back in the community, he received services from a State-funded, but unlicensed, agency. Without adequate supervision and suffering from an eating disorder, he literally ate himself to death when his weight rapidly ballooned to over 400 pounds. He died of heart failure, but his death was not initially reported to CQC. This delay impeded CQC from investigating the adequacy of his discharge plans and making recommendations to improve the quality of care afforded others who may be similarly situated. The bill passed the Assembly, but died in the Senate Mental Health and Developmental Disabilities Committee. The Committee will continue to work with the Senate to achieve passage of this bill.

2. Workforce Issues

State and private provider agencies have worked collaboratively and effectively with educational institutions, private foundations, unions, non-profit organizations and consumer groups to establish innovative training and educational programs for direct care service workers. There is a need to expand and build upon these collaborative efforts, in order to better coordinate initiatives among state agencies, private provider agencies and other interested groups and to design workforce policies that lead to career advancement opportunities for workers and improved services for individuals with disabilities.

To help achieve these goals, the Committee reported legislation (A.1655, Brennan) that would establish a task force to study the skills, training and career advancement needs of direct care workers who provide health, education and other human services to people with disabilities. The bill would require the task force to issue a final report to the Governor and the Legislature that includes specific recommendations to strengthen the direct care workforce in order to improve services to individuals with disabilities and their families. The bill passed the Assembly, but died in the Senate Finance Committee.

3. Community Services Boards

The role of the community services boards (CSBs) is to evaluate the services for the mentally disabled provided by local governments. Each board is required to have separate subcommittees for mental health, mental retardation and developmental disabilities, and alcoholism or alcoholism and substance abuse. The subcommittees advise the CSB on policy-making functions pertaining to their areas as well as evaluate and annually report on local service plans.

To increase the effectiveness of the CSBs, The Committee reported two bills [A.1288-A, (Sanders) and A.7749, Rules (Denis)] to provide additional representation on CSBs and training and education to mental health subcommittee members. The first (A.1288-A) would require the district superintendent of schools and the regional director of the local office of vocational and educational services for individuals with disabilities (VESID) to be members of a CSB. The second (A.7749) would require training, annually or as needed, for mental health subcommittee members and require each subcommittee to have at least 30 days to evaluate a local or unified services plan. Both bills passed the Assembly and died in Senate Rules.

4. Boards of Visitors

Current law requires each Board of Visitors member to visit and inspect the Developmental Center in a Board's catchment area at least twice a year. With the closure of the developmental centers, the State has developed a number of new residential options for the mentally disabled including family care homes and community residences. To ensure that quality care is being provided in these new residential options, the Committee reported legislation (A.5320-B, Brennan) to require each Board member to visit and inspect a developmental center, a family care home or a community residence operated by OMRDD in a Board's catchment area not less than four times a year. The bill passed the Assembly, but died in the Senate Rules Committee. The Committee will continue to work with the Senate to achieve passage of this bill.

F. OTHER PROGRAM AREAS

1. Insurance Parity

The Committee conducted a joint public hearing with the Insurance and Health Committees to examine mental health coverage in the private health insurance and HMO marketplace and to explore and identify ways to improve such coverage. Historically, insurers and employers have been cautious about offering mental health coverage to beneficiaries, often believing that mental disorders are neither definable nor treatable or that reimbursement for such services would lead to uncontrolled demand and overwhelming industry expenditures.

In recent times, coverage issues have been complicated by the accelerating use of managed care strategies to finance and deliver mental health services. Services available within most managed care plans are often seen as too limited for people with severe and persistent mental illness, who frequently end up on Medicaid, adding to the public expense.

As an outgrowth of the hearing, the Committees collaborated on drafting legislation [A.8315-A, Rules (Brennan)] to provide parity for insurance coverage of mental illness. Under current law, health insurance contracts may place a limit on the number of days or visits permitted for the diagnosis and treatment of mental, nervous or emotional disorders or they may require different deductibles, coinsurance or copayments for treatment.

The bill, A.8315-A, requires all group or blanket accident and health insurance policies providing mental health coverage for inpatient care to provide it under the same guidelines as they do for other illnesses. This would mean that coverage for mental illness would be subject to the same deductibles, coinsurance and copayment requirements as coverage for diagnosis and treatment of any other aliments. A.8315-A passed the Assembly, but died in the Senate Rules Committee. The Committee will continue to work with the Insurance Committee and the Senate on this important legislation.

The Committee also worked closely with the Insurance Committee on legislation [A.8300, Rules (Brennan)] to study the feasibility and costs associated with providing parity for insurance coverage of mental illness. The bill authorizes the NYS Superintendent of Insurance to study the issue and report back to the Governor and the Legislature. A.8300 passed the Assembly, but died in the Senate Rules Committee. The Committee will continue to work with the Insurance Committee and the Senate on this legislation as well.

2. Adult Homes

The Committee worked closely with the Committee on Aging on legislation [A.8658, Rules (Clark); Chapter 615 of the Laws of 1997] to help improve the quality of care provided to residents of adult homes in the State. Adult homes are the State's largest providers of community congregate care for the elderly and people with mental illness. The Commission on Quality of Care for the Mentally Disabled has cited a significant number of these facilities as ill-equipped to provide adequate care and services.

Chapter 615 ensures that payments to adult home operators under the Quality Incentive Payments Program (QUIPP) are available only to homes providing quality care. The Chapter eliminates DOH discretion to make QUIPP payments to adult homes that are not in compliance with applicable statutes and regulations. The legislation was drafted in response to reports of questionable QUIPP payments to non-compliant adult homes.

The Committee also worked closely with the Health Committee and the Committee on Aging on legislation [§95 of A.8661, Rules (Gottfried); Chapter 659 of the Laws of 1997)] to require the Commissioner of OMH and the Commissioner of Health to study the delivery of mental health services to mentally ill persons residing in adult homes. The study will analyze the residents' level of disability, the types of mental health services they access, the level of disability of residents who access services, the impact of geographic location on access to services, and options for improving the quality, availability and accessibility of mental health services they receive. The study is required to be completed by June 1, 1998.

3. Mental Hygiene Asset Sales

The Committee held four public hearings in June and July to examine Pataki Administration plans to sell and dispose of almost 6,500 acres of unused land and buildings at 12 State psychiatric centers and 8 State developmental centers for the mentally retarded. Hearings were held in Utica, Syracuse, Hauppauge and Orangeburg and served to shed light on Administration intentions, and foster meaningful and appropriate community involvement in the process to dispose of the property.

Witnesses raised concerns about Administration compliance with laws requiring local input on future use of unused land and buildings, reinvestment of proceeds from sale of the property, and the implications of selling the property at full market value.

Current law requires any money left over after paying off State bonds on the property to be deposited in a special account for care provided in State psychiatric and developmental centers. Because the State general fund is reduced on a dollar-for-dollar basis for every deposit in this account, mental hygiene property sales generate no net new funding for the State's mental hygiene system.

The Committee's concern about an unmet need for housing and community-based mental hygiene services prompted passage of legislation [A.8350-B, Rules (Brennan)] to appropriate surplus revenues from asset sales for capital projects and annual debt service savings for community-based mental hygiene programs. The bill passed the Assembly, but died in the Senate Rules Committee. The Committee will continue to work with the Senate to achieve passage of this important legislation. The Committee will also continue to monitor Administration compliance with existing law as the properties are moved to market.

4. Welfare Reform

Chapter 436 of the Laws of 1997 (The Welfare Reform Act of 1997) will have profound effects on people with mental illness.

People who are eligible for mental health special needs plans (i.e., Medicaid recipients who meet certain diagnostic, functional and utilization criteria) will receive cash assistance under the new Safety Net Assistance (SNA) program, whether or not they are work-exempt or work-limited. If they are work-exempt due to mental disability, there is no time limit on cash assistance. But if they are work-limited due to mental disability, a two-year limit on cash assistance applies. There is no time limit on non-cash assistance for beneficiaries of the SNA program, which replaces Home Relief (HR). Persons on work-limited status would have to perform some level of work in exchange for benefits. The nature of the work would be limited in duration and "appropriate" for the person's disability.

The Welfare Reform Act also exempts people who are ill, incapacitated or 60 years of age or older from the law's work requirements. As a result, a mentally disabled person who is not eligible for enrollment in a special needs plan could be determined work-exempt or work-limited.

The Committee will continue to monitor implementation of the new law and its impact on the mentally disabled.

5. MTA Half-Fare Study

The New York City Metropolitan Transportation Authority's (MTA) existing half fare policy for disabled persons applies to those who suffer from blindness, deafness, ambulatory disability or gait disorder, loss of both arms or hands, and mental retardation, but not serious mental illness.

Chapter 103 of the Laws of 1997 requires the MTA and the Office of Mental Health to study the feasibility of providing half fare rates for persons with serious mental illness. The MTA and OMH are required submit a final report to the Governor and the Legislature by September 30, 1998.

6. Not-For-Profit Corporations as Trustees

The Federal Omnibus Budget Reconciliation Act of 1993 (OBRA '93) authorizes the creation of Supplemental Needs Trusts with the assets of persons with disabilities and provides the option of establishing individual trusts or pooled trusts. This provision of OBRA '93 is enacted in State law in §366 of the Social Services Law (SSL). Under SSL §366, pooled trusts must be "established and managed" by not-for-profit corporations. However, SSL §366 does not explicitly authorize not-for-profits to serve as trustees of pooled trusts.

As a result, the Committee reported legislation [A.7718-A, Rules (Brennan), Chapter 656 of the Laws of 1997] to authorize not-for-profit corporations to serve as trustees of such trusts, provided that a trust company serves as a co-trustee.

7. Site Selection

In June, the NYS Court of Appeals rejected the City of Albany's objection to the siting of a community residential facility for the mentally disabled in the Pine Hills neighborhood. The decision upheld NYS policy which has long favored the establishment of residential housing facilities to deinstitutionalize treatment of the mentally disabled. In light of the Court of Appeals decision, Rehabilitation Support Services (RSS) -- the sponsor of the Pine Hills facility -- dropped a Federal action contending federal preemption of the State's Site Selection Law (Mental Hygiene Law §41.34).

The Committee routinely holds any Site Selection bills that may further restrict the housing choices of people with mental disabilities. The Committee believes such bills are in conflict with the Federal Fair Housing Amendments Act of 1988, which states that a person with a disability has a right to live in the housing of his or her choice.

III. OUTLOOK FOR 1998

A. COMMUNITY MENTAL HEALTH REINVESTMENT

Extending the Community Mental Health Reinvestment Act of 1993 and creating an additional Reinvestment funding stream under managed care are the Committee's top priorities for the 1998 Legislative Session. Provisions of the Act that require appropriations for the program and that determine how reinvestment amounts are calculated expire at the end of Fiscal Year 1998-99.

B. HOUSING DEVELOPMENT

New housing for the mentally ill, the mentally retarded and the developmentally disabled remains a top Committee priority. The Committee will be working hard to develop additional housing opportunities for these vulnerable populations during the 1998 Legislative Session.

C. INSURANCE PARITY

The Committee will continue to advocate for legislation to provide parity for insurance coverage of mental illness with that of other physical illnesses. While limits on coverage and differential deductibles, coinsurance and copayments may result in lower insurance premiums, inadequate coverage can be devastating to people with mental illness and their families.

D. MENTAL HYGIENE ASSET SALES

The Committee will closely monitor Pataki Administration plans to dispose of unused mental hygiene property. Of special concern is Administration compliance with laws requiring local input on the future use of unused land and buildings, and passage of legislation [A.8350-B, Rules (Brennan)] to reinvest surplus revenues and annual debt service savings in capital projects and community-based mental hygiene programs.

E. MENTAL HEALTH SPECIAL NEEDS PLANS (SNPs)

During the 1998 Legislative Session, the Committee will continue to closely monitor implementation of mental health special needs plans (SNPs) for adults with serious mental illness as well as children and adolescents with serious emotional disturbances.

Chief among the Committee's priorities are holding OMH to its pledge to promulgate regulations establishing maximum administrative and profit levels for mental health SNPs, distributing amounts exceeding these levels to counties and the State, and reinvesting all or portions of these amounts in mental health services and programs.

F. SEXUALLY VIOLENT PREDATORS

The Committee will continue to closely monitor legislation allowing for the civil commitment of sexually violent predators. A recent U.S. Supreme Court decision upheld a Kansas law that allows civil commitment of persons who, because of a "mental abnormality" or "personality disorder," are likely to engage in future "predatory acts of sexual violence." Should the legislation become law, concerns have been raised about the ability of the State's psychiatric centers to handle an influx of sexual predators, who are typically resistant to treatment and, because they have the potential for long lengths of stay, may take up beds needed by people with serious mental illness.

APPENDIX A

1997 Summary of Action on Bills
Referred to the Committee on
Mental Health, Mental Retardation and
Developmental Disabilities

APPENDIX B

1997 CHAPTER LAWS

The following new laws were enacted during the 1997 Legislative Session: