THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY SCAVELLO, BAKER, D. COSTA, DeLUCA, FRANKEL, GINGRICH, GODSHALL, GOODMAN, HENNESSEY, KNOWLES, KOTIK, LONGIETTI, MILLARD, MURT, OBERLANDER, O'NEILL, ROSS, SIPTROTH, SWANGER, VULAKOVICH, WHEATLEY AND YOUNGBLOOD, JANUARY 5, 2010

REFERRED TO COMMITTEE ON HEALTH AND HUMAN SERVICES, JANUARY 5, 2010  

Amending the act of July 9, 1976 (P.L.817, No.143), entitled "An

act relating to mental health procedures; providing for the

treatment and rights of mentally disabled persons, for

voluntary and involuntary examination and treatment and for

determinations affecting those charged with crime or under

sentence," providing for assisted outpatient treatment

programs.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  The act of July 9, 1976 (P.L.817, No.143), known

as the Mental Health Procedures Act, is amended by adding an

article to read:

ARTICLE III-A

Assisted Outpatient Treatment

Section 301-A.  Definitions.

The following words and phrases when used in this article

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Assisted outpatient" or "patient."  A person under a court

order to receive assisted outpatient treatment.

"Assisted outpatient treatment."  Any of the following

categories of outpatient services which have been ordered by the

court pursuant to section 305-A:

(1)  Case management services or assertive community

treatment team services to provide care coordination.

(2)  Medication.

(3)  Periodic blood tests or urinalysis to determine

compliance with prescribed medications.

(4)  Individual or group therapy.

(5)  Day or partial programming activities.

(6)  Educational and vocational training or activities.

(7)  Alcohol or substance abuse treatment and counseling

and periodic tests for the presence of alcohol or illegal

drugs for persons with a history of alcohol or substance

abuse.

(8)  Supervision of living arrangements.

(9)  Any other services within an individualized

treatment plan developed pursuant to Article I prescribed to

treat the person's mental illness and to assist the person in

living and functioning in the community, or to attempt to

prevent a relapse or deterioration that may reasonably be

predicted to result in suicide or the need for

hospitalization.

"Assisted outpatient treatment program" or "program."  A

system to arrange for and coordinate the provision of assisted

outpatient treatment, to monitor treatment compliance by

assisted outpatients, to evaluate the condition or needs of

assisted outpatients, to take appropriate steps to address the

needs of assisted outpatients and to ensure compliance with

court orders.

"Director."  The director of a hospital licensed or operated

by the Department of Public Welfare which operates, directs and

supervises an assisted outpatient treatment program, or the

county administrator which operates, directs and supervises an

assisted outpatient treatment program.

"Program coordinator."  An individual appointed under section

302-A(a) who is responsible for the oversight and monitoring of

assisted outpatient treatment programs.

"Subject of the petition" or "subject."  A person who is

alleged in a petition, filed pursuant to the provisions of

section 305-A, to meet the criteria for assisted outpatient

treatment.

Section 302-A.  Program coordinators to be appointed.

(a)  Duty of secretary.--The Secretary of Public Welfare

shall appoint program coordinators of assisted outpatient

treatment, who shall be responsible for the oversight and

monitoring of assisted outpatient treatment programs established

pursuant to section 305-A. County administrators shall work in

conjunction with the program coordinators to coordinate the

implementation of assisted outpatient treatment programs.

(b)  Oversight and monitoring duties.--The oversight and

monitoring role of the program coordinator of the assisted

outpatient treatment program shall include each of the

following:

(1)  That each assisted outpatient receives the treatment

provided for in the court order issued pursuant to section

305-A.

(2)  That existing services located in the assisted

outpatient's community are utilized whenever practicable.

(3)  That a case manager or assertive community treatment

team is designated for each assisted outpatient.

(4)  That a mechanism exists for a case manager, or

assertive community treatment team, to regularly report the

assisted outpatient's compliance, or lack of compliance, with

treatment to the director of the assisted outpatient

treatment program.

(5)  That assisted outpatient treatment services are

delivered in a timely manner.

(c)  Standards to be developed.--The Secretary of Public

Welfare shall develop standards designed to ensure that case

managers or assertive community treatment teams have appropriate

training and have clinically manageable caseloads designed to

provide effective case management or other care coordination

services for persons subject to a court order under section

305-A.

(d)  Corrective action to be taken.--Upon review or receiving

notice that services are not being delivered in a timely manner,

the program coordinator shall require the director of the

assisted outpatient treatment program to immediately commence

corrective action and inform the program coordinator of the

corrective action taken. Failure of a director to take

corrective action shall be reported by the program coordinator

to the Secretary of Public Welfare as well as to the court which

ordered the assisted outpatient treatment.

Section 303-A.  Duties of county administrators.

Each county administrator shall be responsible for the filing

of petitions for assisted outpatient treatment pursuant to

section 305-A, for the receipt and investigation of reports of

persons who are alleged to be in need of that treatment and for

coordinating the delivery of court-ordered services with program

coordinators, appointed by the Secretary of Public Welfare

pursuant to section 302-A(a). In discharge of the duties imposed

by section 305-A, directors of community services may provide

services directly, or may coordinate services with the offices

of the Secretary of Public Welfare or may contract with any

public or private provider to provide services for assisted

outpatient treatment programs as may be necessary to carry out

the duties imposed pursuant to this article.

Section 304-A.  Directors of assisted outpatient treatment

programs.

(a)  General duties.--

(1)  Directors of assisted outpatient treatment programs

established pursuant to section 305-A shall provide a written

report to the program coordinators, appointed by the

Secretary of Public Welfare pursuant to section 302-A(a),

within three days of the issuance of a court order. The

report shall demonstrate that mechanisms are in place to

ensure the delivery of services and medications as required

by the court order and shall include, but not be limited to,

the following:

(i)  A copy of the court order.

(ii)  A copy of the written treatment plan.

(iii)  The identity of the case manager or assertive

community treatment team, including the name and contact

data of the organization which the case manager or

assertive community treatment team member represents.

(iv)  The identity of providers of services.

(v)  The date on which services have commenced or

will commence.

(2)  The directors of assisted outpatient treatment

programs shall ensure the timely delivery of services

described in section 305-A pursuant to any court order issued

thereunder. Directors of assisted outpatient treatment

programs shall immediately commence corrective action upon

receiving notice from program coordinators that services are

not being provided in a timely manner, and the directors

shall inform the program coordinator of the corrective action

taken.

(b)  Quarterly reports to program coordinators.--Directors of

assisted outpatient treatment programs shall submit quarterly

reports to the program coordinators regarding the assisted

outpatient treatment program operated or administered by them.

The report shall include the following information:

(1)  The names of individuals served by the program.

(2)  The percentage of petitions for assisted outpatient

treatment that are granted by the court.

(3)  Any change in status of assisted outpatients,

including, but not limited to, the number of individuals who

have failed to comply with court-ordered assisted outpatient

treatment.

(4)  A description of material changes in written

treatment plans of assisted outpatients.

(5)  Any change in case managers.

(6)  A description of the categories of services which

have been ordered by the court.

(7)  Living arrangements of individuals served by the

program including the number, if any, who are homeless.

(8)  Any other information as required by the Secretary

of Public Welfare.

(9)  Any recommendations to improve the program Statewide

or locally.

Section 305-A.  Assisted outpatient treatment program.

(a)  Director to obtain approval from secretary.--A director

may operate, direct and supervise an assisted outpatient

treatment program as provided in this section, upon approval by

the Secretary of Public Welfare. The county administrator shall

operate, direct and supervise an assisted outpatient treatment

program as provided in this section, upon approval by the

Secretary of Public Welfare. County administrators shall be

permitted to satisfy the provisions of this article through the

operation of joint assisted outpatient treatment programs.

Nothing in this article shall be construed to preclude the

combination or coordination of efforts between and among

counties and hospitals in providing and coordinating assisted

outpatient treatment.

(b)  Criteria for assisted outpatient treatment.--A patient

may be ordered to obtain assisted outpatient treatment if the

court finds all of the following:

(1)  The patient is 18 years of age or older.

(2)  The patient is suffering from a mental illness.

(3)  The patient is unlikely to survive safely in the

community without supervision, based on a clinical

determination.

(4)  The patient has a history of lack of compliance with

treatment for mental illness that has:

(i)  at least twice within the preceding 36 months

been a significant factor in necessitating

hospitalization, or receipt of services in a forensic or

other mental health unit of a correctional facility, not

including any period during which the person was

hospitalized or imprisoned immediately preceding the

filing of the petition; or

(ii)  resulted in one or more acts of serious violent

behavior toward self or others or threats of, or attempts

at, serious physical harm to self or others within the

preceding 48 months, not including any period in which

the person was hospitalized or imprisoned immediately

preceding the filing of the petition.

(5)  The patient is, as a result of the patient's mental

illness, unlikely to voluntarily participate in the

recommended treatment pursuant to the treatment plan.

(6)  In view of the patient's treatment history and

current behavior, the patient is in need of assisted

outpatient treatment in order to prevent a relapse or

deterioration which would be likely to pose a clear and

present danger of harm to others or to himself as determined

under section 301.

(7)  It is likely that the patient will benefit from

assisted outpatient treatment.

(c)  Petition to the court.--

(1)  A petition for an order authorizing assisted

outpatient treatment may be filed in the court of common

pleas of the county in which the subject of the petition is

present or reasonably believed to be present. A petition to

obtain an order authorizing assisted outpatient treatment may

be initiated only by the following persons:

(i)  a person 18 years of age or older with whom the

subject of the petition resides;

(ii)  the parent, spouse, sibling 18 years of age or

older, or child 18 years of age or older of the subject

of the petition;

(iii)  the director of the facility in which the

subject of the petition is hospitalized;

(iv)  the director of any public or charitable

organization, agency or home providing mental health

services to the subject of the petition in whose

institution the subject of the petition resides;

(v)  a qualified psychiatrist who is either

supervising the treatment of or treating the subject of

the petition for a mental illness;

(vi)  the county administrator, or his designee; or

(vii)  a parole officer or probation officer assigned

to supervise the subject of the petition.

(2)  The petition shall state:

(i)  Each of the criteria for assisted outpatient

treatment as set forth in subsection (b).

(ii)  The facts which support the petitioner's belief

that the person who is the subject of the petition meets

each criterion, provided that the hearing on the petition

need not be limited to the stated facts.

(iii)  That the subject of the petition is present,

or is reasonably believed to be present, within the

county where the petition is filed.

(3)  The petition shall be accompanied by an affirmation

or affidavit of a physician, who shall not be the petitioner,

and shall state either that:

(i)  The physician has personally examined the person

who is the subject of the petition not more than ten days

prior to the submission of the petition, recommends

assisted outpatient treatment for the subject of the

petition and is willing and able to testify at the

hearing on the petition.

(ii)  Not more than ten days prior to the filing of

the petition, the physician or his designee has made

appropriate attempts to elicit the cooperation of the

subject of the petition but has not been successful in

persuading the subject to submit to an examination, that

the physician has reason to suspect that the subject of

the petition meets the criteria for assisted outpatient

treatment, and that the physician is willing and able to

examine the subject of the petition and testify at the

hearing on the petition.

(d)  Right to counsel.--The subject of the petition shall

have the right to be represented by counsel at all stages of a

proceeding commenced under this section. The subject of the

petition shall be represented either by counsel of his selection

or, if unrepresented and unable to afford counsel as determined

by the court, by court-appointed counsel.

(e)  Hearing.--

(1)  Upon receipt by the court of the petition submitted

pursuant to subsection (c), the court shall fix the date for

a hearing at a time not later than three days from the date

the petition is received by the court, excluding Saturdays,

Sundays and holidays. Adjournments shall be permitted only

for good cause shown. In granting adjournments, the court

shall consider the need for further examination by a

physician or the potential need to provide assisted

outpatient treatment expeditiously.

(2)  The court shall cause the subject of the petition,

the petitioner, the physician whose affirmation or affidavit

accompanied the petition, the appropriate director, and such

other persons as the court may determine to be advised. The

subject of the petition shall have the opportunity to

provide, in writing, names and parties to be notified of the

hearing which shall be considered by the court.

(3)  Upon the date for the hearing, or upon such other

date to which the proceeding may be adjourned, the court

shall hear testimony and, if it be deemed advisable and the

subject of the petition is available, examine the subject

alleged to be in need of assisted outpatient treatment in or

out of court.

(4)  If the subject of the petition does not appear at

the hearing, and appropriate attempts to elicit the

attendance of the subject have failed, the court may conduct

the hearing in the subject's absence. If the hearing is

conducted without the subject of the petition present, the

court shall set forth the factual basis for conducting the

hearing without the presence of the subject of the petition.

(5)  The court may not order assisted outpatient

treatment unless an examining physician, who has personally

examined the subject of the petition within the time period

commencing ten days before the filing of the petition,

testifies in person at the hearing.

(6)  If the subject of the petition has refused to be

examined by a physician, the court may request the subject to

consent to an examination by a physician appointed by the

court. If the subject of the petition does not consent and

the court finds reasonable cause to believe that the

allegations in the petition are true, the court may order law

enforcement officers or of a sheriff's department to take the

subject of the petition into custody and transport him to a

hospital for examination by a physician. Retention of the

subject of the petition under the order shall not exceed 24

hours.

(7)  The examination of the subject of the petition may

be performed by the physician whose affirmation or affidavit

accompanied the petition, if the physician is privileged by

the hospital or otherwise authorized by the hospital to do

so. If the examination is performed by another physician of

the hospital, the examining physician shall be authorized to

consult with the physician whose affirmation or affidavit

accompanied the petition regarding the issues of whether the

allegations in the petition are true and whether the subject

meets the criteria for assisted outpatient treatment.

(8)  A physician who testifies pursuant to paragraph (5)

shall state the facts which support the allegation that the

subject meets each of the criteria for assisted outpatient

treatment, and the treatment is the least restrictive

alternative, the recommended assisted outpatient treatment,

and the rationale for the recommended assisted outpatient

treatment. If the recommended assisted outpatient treatment

includes medication, the physician's testimony shall describe

the types or classes of medication which should be

authorized, shall describe the beneficial and detrimental

physical and mental effects of the medication, and shall

recommend whether the medication should be self-administered

or administered by authorized personnel.

(9)  The subject of the petition shall be afforded an

opportunity to present evidence, to call witnesses on behalf

of the subject, and to cross-examine adverse witnesses.

(f)  Written individualized treatment plan.--

(1)  (i)  The court may not order assisted outpatient

treatment unless an examining physician appointed by the

appropriate director develops and provides to the court a

proposed written individualized treatment plan. The

written individualized treatment plan shall include case

management services or assertive community treatment

teams to provide care coordination, and all categories of

services which the physician recommends that the subject

of the petition should receive.

(ii)  If the written individualized treatment plan

includes medication, it shall state whether the

medication should be self-administered or administered by

authorized personnel, and shall specify type and dosage

range of medication most likely to provide maximum

benefit for the subject.

(iii)  If the written individualized treatment plan

includes alcohol or substance abuse counseling and

treatment, the plan may include a provision requiring

relevant testing for either alcohol or illegal substances

provided the physician's clinical basis for recommending

the plan provides sufficient facts for the court to find:

(A)  That the person has a history of alcohol or

substance abuse that is clinically related to the

mental illness.

(B)  That the testing is necessary to prevent a

relapse or deterioration which would be likely to

result in serious harm to the person or others.

(iv)  In developing the plan, the physician shall

provide the following persons with an opportunity to

actively participate in the development of the plan: the

subject of the petition; the treating physician; and upon

the request of the patient, an individual significant to

the patient including any relative, close friend or

individual otherwise concerned with the welfare of the

patient. If the petitioner is a director, the plan shall

be provided to the court no later than the date of the

hearing on the petition.

(2)  The court shall not order assisted outpatient

treatment unless a physician testifies to explain the written

proposed treatment plan. The testimony shall state:

(i)  The categories of assisted outpatient treatment

recommended.

(ii)  The rationale for each category.

(iii)  Facts which establish that the treatment is

the least restrictive alternative.

(iv)  If the recommended assisted outpatient

treatment includes medication, the types or classes of

medication recommended, the beneficial and detrimental

physical and mental effects of the medication, and

whether the medication should be self-administered or

administered by an authorized professional.

If the petitioner is a director the testimony shall be given at

the hearing on the petition.

(g)  Disposition.--

(1)  If after hearing all relevant evidence, the court

finds that the subject of the petition does not meet the

criteria for assisted outpatient treatment, the court shall

dismiss the petition.

(2)  If after hearing all relevant evidence, the court

finds by clear and convincing evidence that the subject of

the petition meets the criteria for assisted outpatient

treatment and there is no appropriate and feasible less

restrictive alternative, the court shall be authorized to

order the subject to receive assisted outpatient treatment

for an initial period not to exceed six months. In fashioning

the order, the court shall specifically make findings by

clear and convincing evidence that the proposed treatment is

the least restrictive treatment appropriate and feasible for

the subject. The order shall state the categories of assisted

outpatient treatment which the subject is to receive. The

court may not order treatment that has not been recommended

by the examining physician and included in the written

treatment plan for assisted outpatient treatment as required

by subsection (f).

(3)  If after hearing all relevant evidence the court

finds by clear and convincing evidence that the subject of

the petition meets the criteria for assisted outpatient

treatment, and the court has yet to be provided with a

written individualized treatment plan and testimony pursuant

to subsection (f), the court shall order the county

administrator to provide the court with the plan and

testimony no later than the third day, excluding Saturdays,

Sundays and holidays, immediately following the date of the

order. Upon receiving the plan and testimony, the court may

order assisted outpatient treatment as provided in paragraph

(2).

(4)  A court may order the patient to self-administer

psychotropic drugs or accept the administration of the drugs

by authorized personnel as part of an assisted outpatient

treatment program. The order may specify the type and dosage

range of psychotropic drugs and the order shall be effective

for the duration of the assisted outpatient treatment.

(5)  If the petitioner is the director of a hospital that

operates an assisted outpatient treatment program, the court

order shall direct the hospital director to provide or

arrange for all categories of assisted outpatient treatment

for the assisted outpatient throughout the period of the

order. For all other persons, the order shall require the

director of community services of the appropriate local

governmental unit to provide or arrange for all categories of

assisted outpatient treatment for the assisted outpatient

throughout the period of the order.

(6)  The director or his designee shall apply to the

court for approval before instituting a proposed material

change in the assisted outpatient treatment order unless the

change is contemplated in the order. Nonmaterial changes may

be instituted by the assisted outpatient treatment program

without court approval. For the purposes of this paragraph, a

material change shall mean an addition or deletion of a

category of assisted outpatient treatment from the order of

the court, or any deviation without the patient's consent

from the terms of an existing order relating to the

administration of psychotropic drugs.

(h)  Applications for additional periods of treatment.--If

the director determines that the condition of the patient

requires further assisted outpatient treatment, the director

shall apply prior to the expiration of the period of assisted

outpatient treatment ordered by the court for a second or

subsequent order authorizing continued assisted outpatient

treatment for a period not to exceed one year from the date of

the order. The procedures for obtaining any order pursuant to

this subsection shall be in accordance with this section,

provided that the time period included in subsection (b)(4)(i)

and (ii) shall not be applicable in determining the

appropriateness of additional periods of assisted outpatient

treatment. Any court order requiring periodic blood tests or

urinalysis for the presence of alcohol or illegal drugs shall be

subject to review after six months by the physician who

developed the written individualized treatment plan or another

physician designated by the director, and the physician shall be

authorized to terminate the blood tests or urinalysis without

further action by the court.

(i)  Application for order to stay, vacate or modify.--In

addition to any other right or remedy available by law with

respect to the order for assisted outpatient treatment, the

patient, the patient's counsel, or anyone acting on the

patient's behalf may apply on notice to the appropriate director

and the original petitioner to the court to stay, vacate or

modify the order.

(j)  Appeals.--Review of an order issued pursuant to this

section shall be had in like manner as specified in section 303.

(k)  Failure to comply with the assisted outpatient

treatment.--

(1)  (i)  Where, in the clinical judgment of a physician,

the assisted outpatient has failed or refused to comply

with the assisted outpatient treatment and efforts were

made to solicit compliance and such assisted outpatient

may be in need of involuntary admission to a hospital or

immediate observation, care and treatment pursuant to

section 302 or 303, the physician may request the

director of community services, the director's designee

or any physician designated by the director of community

services to bring the assisted outpatient to an

appropriate hospital for an examination to determine if

the assisted outpatient has a mental illness for which

hospitalization is necessary.

(ii)  If the assisted outpatient refuses to take

medication as required by the court order or refuses to

take or fails a blood test, urinalysis or alcohol or drug

test as required by the court order, the physician may

consider the refusal or failure when determining whether

the assisted outpatient is in need of an examination to

determine whether the assisted outpatient has a mental

illness for which hospitalization is necessary.

(2)  Upon the request of the physician, the director or

the director's designee may direct law enforcement officers

or the sheriff's department to take into custody and

transport the patient to the hospital operating the assisted

outpatient treatment program or to any hospital authorized by

the director of community services to receive such patients.

The law enforcement officials shall carry out the directive.

(3)  (i)  Upon the request of the physician, the director

or the director's designee, the court may authorize the

patient to be taken into custody and transported to the

hospital operating the assisted outpatient treatment

program, or to any other hospital authorized by the

county administrator to receive such patients in

accordance with section 306.

(ii)  The patient may be retained for observation,

care and treatment and further examination in the

hospital for up to 72 hours to permit a physician to

determine whether the patient has a mental illness and is

in need of involuntary care and treatment in a hospital

pursuant to this act.

(iii)  Any continued involuntary retention in the

hospital beyond the initial 72-hour period shall be in

accordance with this act relating to the involuntary

admission and retention of a person.

(iv)  If at any time during the 72-hour period the

person is determined not to meet the involuntary

admission and retention provisions of this act, and does

not agree to stay in the hospital as a voluntary or

informal patient, he shall be released.

(v)  Failure to comply with an order of assisted

outpatient treatment shall not be grounds for involuntary

civil commitment or a finding of contempt of court.

(l)  False petition.--A person making a false statement or

providing false information or false testimony in a petition or

hearing under this section is subject to criminal prosecution

pursuant to 18 Pa.C.S. § 4903 (relating to false swearing).

(m)  Construction.--Nothing in this section shall be

construed to affect the ability of the director of a hospital to

receive, admit or retain patients who otherwise meet the

provisions of this act regarding receipt, retention or

admission.

(n)  Educational materials.--The Department of Public

Welfare, in consultation with the county administrator, shall

prepare educational and training materials on the use of this

section, which shall be made available to county providers of

services, judges, court personnel, law enforcement officials and

the general public.

Section 2.  This act shall take effect in 60 days.