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New Law Authorizes Mental Health Advocacy Services in Nursing Homes

On Dec. 16th, Governor Cuomo signed into law legislation (A.4482/S.3766) authorizing the Mental Hygiene Legal Service (MHLS) to provide legal assistance to nursing home residents who have been admitted directly from a psychiatric facility or a psychiatric ward of a hospital and who have a serious mental illness for which they are receiving services. The legislation became effective immediately upon being signed.

MHLS is a New York State agency responsible for representing, advocating, and litigating on behalf of individuals receiving services for a mental disability. Originally created in 1964 to act as the guardian of due process rights for the institutionalized mentally disabled, the agency functioned primarily in an informational and ombudsman capacity. It has since evolved into a dedicated legal advocacy program providing a broad range of protective legal services and assistance to mentally disabled persons under the care or jurisdiction of State-operated or licensed facilities. MHLS’s role encompasses Mental Hygiene Law Article 81 Guardianship and most “Kendra’s Law” proceedings as well as representation and advocacy to certain sex offenders.

MHLS’s responsibilities include: (1) ensuring that persons with mental and/or developmental disabilities are afforded due process and equal protection of the law; (2) providing legal counsel for persons involved in judicial proceedings concerning admission, retention, transfer, right to adequate care and treatment, right to object to treatment, etc.; (3) investigating and taking legal action in cases of abuse or mistreatment; and (4) providing general day-to-day advocacy services meeting the needs of individuals who reside in or pass through the mental health system annually. MHLS has broad legal authority to provide advocacy services to qualified residents and their families on residents’ rights, admission, care and treatment, and discharge. The agency is authorized to be granted access at all times to the facility where a qualified resident is residing and may demand access to information, books, and records deemed necessary by MHLS to carry out its functions, powers, and duties. More information on MHLS’s authority and duties is available here, and contact information for MHLS in each of the four judicial departments of the State is available here.

The New York State Court of Appeals, the State's highest court, had previously ruled that MHLS lacked jurisdiction to represent mentally ill individuals admitted to nursing homes from psychiatric centers and psychiatric hospital wards because the Office of Mental Health (OMH) does not license nursing homes.

We will keep members updated as the relevant State agencies further clarify how the new law will be implemented.

Contact: Dan Heim, dheim@leadingageny.org, 518-867-8866