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"Kendra's Law: Even With Unanimous Legislative Support, and the New York Court of Appeals' Blessing, Continued Research Is Necessary To Ensure Positive Patient Outcomes" by Alexander J. Nicas

Kendra's Law: Even With Unanimous Legislative Support, and the New York Court of Appeals' Blessing, Continued Research Is Necessary To Ensure Positive Patient Outcomes

by Alexander J. Nicas


On a cold January day in 1999, Kendra Webdale was pushed off a New York City subway platform and killed by an oncoming train. Andrew Goldstein, a 29-year-old man with a long history of mental illness, was the alleged perpetrator. The tragic circumstances surrounding Kendra's death terrified the community, and sparked a political debate that ultimately resulted in the passage of Kendra's Law. Kendra's Law, signed by Governor George Pataki in late 1999, created the statutory framework for court-ordered assisted outpatient treatment ("AOT") in New York. N.Y. MENTAL HYG. LAW § 9.60 (McKinney 2009). In support of it's passage, the legislature stated that there are "mentally ill persons who can function well and safely in the community with supervision and treatment, but who without such assistance, will relapse and require long periods of hospitalization," and that "assisted outpatient treatment ... is compassionate, not punitive, will restore patients' dignity, and will enable mentally ill persons to lead more productive and satisfying lives." Ch. 409, § 2, 1999 N.Y. Laws S. 5762-A.

The legislature's belief was well-intended, but Kendra's Law has faced significant criticism in the 12 years since its passage. See, e.g., Vivian Berger, The Merits of State Statutes such as Kendra's Law Deserve Renewed Debate, 32 NAT'L L. J. 22 (Feb. 8, 2010); Michael Cooper, Racial Disproportion Seen in Applying 'Kendra's Law', N.Y. TIMES, April 7, 2005, at B5. As the New York Court of Appeals and a federal court in the Southern District of New York have affirmed the laws constitutionality (under the New York State Constitution and U.S. Constitution, respectively), it would seem that AOT is here to stay.

This article is broken up into three parts: the legal mechanics behind an AOT petition, two important cases that have affirmed the law's constitutionality, and three empirical studies released last year that analyze data collected since AOT's inception.

Filing the Petition

The process begins with the filing of a petition in the supreme or county court in which the subject is present or reasonably believed to be present. N.Y. MENTAL HYG. LAW § 9.60(e). Family members or a number of other individuals enunciated in the statute may file the petition. Id. at § 9.60(e)(i)-(viii). The petition must state facts that support petitioner's belief that the subject meets the criteria for AOT, and must be accompanied by an affidavit of the physician who has personally examined the subject - no more than ten days prior to filing. Id. at § 9.60(e)(2).

Criteria for AOT

The petition must state facts alleging that the subject of the petition: (1) is eighteen years of age or older; (2) is suffering from a mental illness; (3) is unlikely to survive safely in the community without supervision, based on a clinical determination; (4) has a history of lack of compliance with treatment for mental illness; (5) is unlikely to participate in outpatient treatment; (6) is in need of assisted outpatient treatment in order to prevent a relapse or deterioration which would be likely to result in serious harm to the person or others; and (7) is likely to benefit from assisted outpatient treatment. Id. § 9.60(c). The fourth criteria - lack of compliance with treatment - has two prongs that must be satisfied: (i) at least two hospitalizations for mental illness, as a result of treatment failures, within the last thirty-six months, id. § 9.60(c)(4)(i)); and (ii) 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 last forty-eight months. Id. § 9.60(c)(4)(ii).

Written Treatment Plan

In conjunction with the petition, an examining physician must develop and submit a written treatment plan, including: all medication to be prescribed, therapy options, educational or vocational training possibilities, and whether petitioner would benefit from alcohol or substance abuse treatment. N.Y. MENTAL HYG. LAW § 9.60(i)(1). The examining physician must allow the subject of the petition the opportunity to actively participate in the development of the plan. Id. at § 9.60(i)(2).


Upon receipt of an AOT petition, the court must schedule a hearing no later than 3 days from the date of receipt. Id. § 9.60(h). The physician, who has either recommended AOT or personally examined the subject (no more than ten days before filing), must testify in-person at the hearing. Id. § 9.60(h)(2). During testimony, the physician must state the facts and clinical determinations supporting the allegation that the subject meets each of the required criteria. Id. The physician must also review the treatment plan, and include a description of all medication - plus a list of the beneficial and detrimental physical and mental effects of such medication - and all rationale for the recommended plan. Id. § 9.60(h)(4)


If the court finds, by clear and convincing evidence, that the subject of the petition meets the criteria for AOT, and there is no appropriate or feasible less restrictive alternative, the court may order the subject to receive AOT for an initial period not to exceed six months. Id. § 9.60(j)(2). If psychotropic drugs are part of the treatment plan, the court may order the subject to self-administer the drugs or accept the administration of such drugs by authorized personal. N.Y. MENTAL HYG. LAW § 9.60(j)(4). A court order for AOT may also be appealed. The assisted outpatient, the Mental Hygiene Legal Services advocate, or anyone acting on behalf of the individual may petition the court to stay, vacate, or modify the order. Id. § 9.60(l).

In the alternative, if the court does not find, by clear and convincing evidence that the subject meets the criteria for AOT, the court must dismiss the petition. Id. § 9.60(j)(1).

Constitutionality of Kendra's Law - K.L. & Coleman

In 2004, the New York Court of Appeals ruled that Kendra's law "provides all the process that is constitutionally due." In the Matter of K.L., 806 N.E.2d 480, 486 (2004). The respondent "suffered from schizoaffective disorder, bipolar type, and had a history of psychiatric hospitalizations and noncompliance with prescribed medication and treatment, as well as aggressiveness toward family members." Id. at 482. Respondent argued that Kendra's Law violated his due process rights because it did not require a finding of incapacity before ordering him to comply with AOT. Id.

The court rejected the incapacity argument stating that "[s]ince Mental Hygiene Law §9.60 does not permit forced medical treatment, a showing of incapacity is not required." Id. The court also relied on the state's police powers to justify respondent's minimal restriction on the right to refuse, and the state's parens patriae power to provide care to citizens unable to care for themselves because of mental illness. Id. at 485-86. In the Matter of K.L. settled the due process question under New York law, but it took more than six years for a federal court to take up the issue.

On March 17, 2010, a federal court in the Southern District of New York decided Coleman v. State Supreme Court. 697 F.Supp.2d 493 (S.D.N.Y. 2010). Coleman was the first federal case to address whether Kendra's Law - or any state's AOT program - comports with the Fourteenth Amendment due process rights of those who are ordered to participate. Id. at 505. Jason Coleman was diagnosed with paranoid schizophrenia in 2004, and spent almost two and one half years in AOT from late 2006 until early 2009. Id. at 501. After "graduating" from the program because of compliance with his treatment plan, Coleman brought suit contending that it was his right "as a U.S. citizen [to not] take meds if he doesn't want to ... [but] ... was forced to take medication and attend a program ... though he had not broken any law [or] done anything to [him]self or anyone else." Id. The court liberally construed Coleman's complaint to allege that his substantive and procedural due process rights were violated. Id. at 502.

The court in Coleman first addressed the Fourteenth Amendment substantive due process question, stating: "[the] issue requires the [c]ourt to define the protected interest and identify the interests that might outweigh it." 697 F.Supp.2d at 506. Tracing through a number of criminal forced medication cases determined by the Supreme Court, the court concluded that although Coleman has a liberty interest in avoiding the involuntary administration of medication, Section 9.60 (Kendra's Law) furthers governmental interests, requires medication only where medically appropriate, and is less intrusive than alternative methods of ensuring the safety of the community and mentally ill patients. See Id. at 508.

The court then addressed Coleman's procedural due process claim, principally whether he was afforded adequate procedural protections, and if so, whether the protections were made available to him. Id. at 509-10. Turning to the statute, the court highlighted how much medical input was required, the availability of a judicial hearing with a jury, a second hearing before another justice of the New York Supreme Court on appeal, and legal representation by Mental Hygiene Legal Services. See Id. at 510-11. In light of the breadth of professional input and levels of judicial review available, the court held that Coleman's procedural due process challenge under the Fourteenth Amendment could not succeed. Id.

Thus, courts have now spoken, and 'constitutional' has been the word. Yet future legal challenges will be forthcoming, as specific areas of the statute (i.e., the "lack of compliance prong" are probably ripe for attack. See Id. § 9.60(c)(4)).
In conjunction with K.L. and Coleman, empirical analysis of data collected by the New York State Office of Mental Health ("OMH") has started to shed light on the program's effectiveness. Since the AOT program began in 1999, the OMH has been collecting subject data from across the state. In advance of the law's expiration last summer, the data was aggregated, analyzed, and published in a number of empirical studies discussed over the next few paragraphs. Although the studies were done under contract with the OMH, they were conducted by highly accredited researchers, and added significant context to the policy debate. See also MARVIN S. SWARTZ ET AL, NEW YORK STATE ASSISTED OUTPATIENT TREATMENT PROGRAM EVALUATION (2009), available at http://www.macarthur.virginia.edu/.

Analysis - How effective has AOT been?

A. General AOT Statistics (November 1999 - July 2011)

Since Kendra's Law was enacted, 9,768 AOT petitions have been filed in New York State. See Data, New York State OMH. A staggering 97% (9,511) of those petitions have been granted. Id. Across New York State, the percentage of petitions granted/filed is relatively consistent, ranging from 93% (Western NY) to 98% (Hudson River) to 96% (Long Island). Id.

An initial AOT order can only last six months, but approximately 61% of all initial orders have been renewed. See Renewals, New York State OMH. Historically, about 45% of AOT subjects spend 0-12 months in treatment, while 55% spend 12 to more than 30 months in the program. See Time in AOT, New York State OMH. The average age of an individual in AOT is approximately 38 years old. See Demographics - Age, New York State OMH. 66% of all AOT subjects are male, while 34% are female. See Demographics - Gender, New York State OMH.

B. Psychiatric Hospitalization During AOT and Possession of Medication Post-AOT

The first study attempted to determine if AOT impacted psychiatric hospitalization rates during treatment. See Marvin S. Swartz et al., Assessing Outcomes for Consumers in New York's Assisted Outpatient Treatment Program, 61 Psychiatric Services 976 (Oct. 2010). The study utilized data on 3,576 individuals who received court-ordered AOT and were enrolled in Medicaid at any time between January 1, 1999 and March 14, 2007. Id. at 977.

The study concluded that in the first six months of an AOT order, hospital admissions were "reduced by roughly 25% from the pre-AOT period," and if renewed, "the likelihood of an inpatient admission was reduced even further" (approximately 40%). Id. at 979. Utilizing Medicaid claims data to assess the likelihood of possessing medication, subjects were 50% more likely to possess medication during the initial six-month's of AOT compared to pre-AOT, and were 90% more likely to possess medication during a subsequent renewal of an order. Id. Authors concluded that "compared with the pre-AOT period, consumers were significantly less likely to be hospitalized for psychiatric treatment, spent fewer days when hospitalized, [and] were more likely to possess an adequate supply of psychotropic medication appropriate to their diagnosis" during AOT. Id.

A companion study examined whether AOT increased the likelihood that an individual continued to receive prescribed medication and avoid hospitalization after AOT ends. See Richard A. Van Dorn et al., Continuing Medication and Hospitalization Outcomes after Assisted Outpatient Treatment in New York, 61 Psychiatric Services 982 (Oct. 2010). Utilizing the same data as the previous study, the authors concluded: "when court-ordered treatment ends, sustained improvements in medication possession and reductions in hospitalizations vary according to the length of time the recipient spent under the court order." Id. at 985.

Splitting AOT subjects into two groups - (1) six months or less in AOT, and (2) seven months or more in AOT - this study confirmed that those who spent seven months or more in AOT had higher medication possession rates and decreased hospitalizations even when this group didn't receive case management services after AOT. Id. Most importantly, "[i]nsofar as court-ordered treatment is designed to reduce repeat hospitalizations and maintain community based-tenure, these results show positive effects for New York's AOT program, particularly when outpatient commitment periods last more than six months." Id. at 986.

C. Incarceration Rates during AOT

Examining incarceration rates during AOT is important because an arrest or incarceration may be disruptive to the treatment an individual is receiving. Common sense tells us that continuity of care is critical to long-run success. A third empirical study published in Psychiatric Services magazine sought to shed light on incarceration rates by examining whether AOT recipients have lower odds of arrest while getting court-ordered treatment. See Allison R. Gilbert et al, Reductions in Arrest Under Assisted Outpatient Treatment in New York, 61 Psychiatric Services 996 (Oct. 2010).

In this study, the authors randomly selected a sample of individuals from AOT rosters, and cross-referenced Medicaid and arrest records from November 1, 1999 to February 28, 2008. Id. The study found that the "odds of arrest among AOT recipients in the sample were relatively low while they were enrolled in the program." Id. at 998. The authors stated that one explanation for this result "may be that AOT recipients were more strongly motivated to engage in treatment to avoid the negative consequences of violating a court order." Id. at 998. Contrasting this conclusion, the authors also said that police could alter their approach when dealing with AOT recipients by "referring known AOT participants back to the mental health system instead of arresting them ... [while] ... their non-AOT counterparts ... might be arrested and booked for the same offenses." Id.

These contrasting conclusions highlight a limitation in the incarceration study, and the need for further research on this particular topic. Although the authors acknowledged the shortfall, they still stated: "evidence suggests that AOT may reduce the risk of being arrested ... [and therefore] AOT may thus play an important role in improving community-based treatment outcomes for persons with serious mental illness and in reducing coercion associated with criminal justice involvement in this population." Id. at 998.


The three studies discussed in the preceding paragraphs point to progress. During AOT, psychiatric hospitalization rates decreased, consumers were more likely to possess medications during and after AOT, and the odds of arrest decreased when compared to pre-AOT. When the legislature extended Kendra's Law until 2015 in June of last year, statements in support of the bill's passage (by 55-0 vote) highlighted some of the research conclusions included in this article. See Press Release, New York State Senate. Empirical studies are an important policy tool, and they have assisted the legislature in gauging the program's success. That being said, continued research is necessary to ensure that the program continues to fulfill its obligation to court-ordered participants.

Gary Collins, M.D., director of the NYU/Bellevue Hospital Center AOT Program recently said that he has seen beneficial client outcomes, but cautioned that research "has yet to demonstrate a causal relationship between AOT and clinical outcomes, and more comprehensive research on New York['s] AOT program is needed." See Rich Daly, Major Funding Commitment Helps Kendra's Law Succeed, 45 Psychiatric News 11 (Oct. 15, 2010). The New York State legislature will once again vote on Kendra's Law in 2015. Now is the time to take Dr. Collins' observations seriously and engage in further research. Exploring the causal relationship between AOT and beneficial clinical outcomes is an important step in ensuring that the legislature's original intent (" ... [to] enable mentally ill persons to lead more productive and satisfying lives", Ch. 409, § 2, 1999 N.Y. Laws S. 5762-A) is fulfilled.

The passionate debate over Kendra's Law is far from over. With powerful and well-funded voices on both sides (see the Judge David L. Bazelon Center for Mental Health v. the Treatment Advocacy Center), 'patient' success should be guiding light. The empirical analysis seems to point to progress, but continued research is necessary to help the New York legislature make prudent, well-educated decisions in coming years.

Alexander J. Nicas is a third-year law student at St. John's University School of Law in Queens, New York. At St. John's, Alexander is Editor-in-Chief of the N.Y. Real Property Law Journal, the official publication of the Real Property Law Section of the New York State Bar Association. He also serves as a Research Assistant for Professors Michael Perino and Keith Sharfman, researching topics ranging from the legal issues associated with cloud computing to New Deal banking legislation of the early 1930's. For those interested in the above article, a more in-depth discussion can be found on Alexander's Scribd page. Alexander would like to thank Professor Keri K. Gould for sparking his interest in this topic while a student in her Mental Health Law seminar last fall.

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This page contains a single entry from the blog posted on August 16, 2011 12:12 AM.

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