A3561

An Act concerning mental health advocacy, amending various parts of the statutory law, supplementing Title 52 of the Revised Statutes, and making an appropriation.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 29 of P.L.2005, c.155 (C.52:27EE-29) is amended to read as follows:

29. [Division] Office of Mental Health Advocacy; established.

a. There is hereby established in the [Office of the Public Defender a] Division of Mental Health and Addiction Services, in the Department of Health, an Office of Mental Health Advocacy to be under the supervision of the [Director of the Division of] Mental Health [Advocacy] Advocate.

b. The [division] office is hereby designated as the State's mental health protection and advocacy agency. The [division] office shall have all the powers necessary to carry out its responsibilities as required to qualify for federal funding as the State protection and advocacy agency.

(cf: P.L.2010, c.34, s.25)

2. Section 30 of P.L.2005, c.155 (C.52:27EE-30) is amended to read as follows:

30. [Division] Office of Mental Health Advocacy; objective; duties.

a. The [Division] Office of Mental Health Advocacy shall promote, advocate, and ensure the adequacy of screening services to identify persons with mental illness, the care made available and received by those persons, and the quality of life experienced [,] by those persons [with mental illness], including patients, residents, and clients within the mental health facilities and programs operated, funded, or licensed by the State. In determining what elements are essential to ensure adequate screening, care, and quality of life, the [division] office shall consider the unique medical, social, and economic needs and problems of persons screened for or with mental illness as citizens and community members, and when applicable, as patients, residents, and clients of facilities and [as citizens and community members] programs.

b. The [director] Mental Health Advocate shall establish and implement procedures to elicit, receive, process, respond, and resolve complaints from patients, their families, other interested citizens, public officials, and government agencies concerning
conditions in the State's mental health facilities.

(P.L.2005, c.155, s.30)

3. Section 31 of P.L.2005, c.155 (C.52:27EE-31) is amended to read as follows:

31. [Division] Office of Mental Health Advocacy; class actions.

The [Director of the Division of] Mental Health [Advocacy] Advocate may represent, with the approval of the [Public Defender] Director of the Division of Mental Health and Addiction Services, the interests of indigent mental hospital admittees in such disputes and litigation as will, in the discretion of the [Public Defender] director, best advance the interests of indigent mental hospital admittees as a class on an issue of general application to them, and may act as representative of indigent mental hospital admittees with any principal department or other instrumentality of State, county or local government.

(cf: P.L.2010, c.34, s.26)

4. Section 32 of P.L.2005, c.155 (C.52:27EE-32) is amended to read as follows:

32. [Division] Office of Mental Health Advocacy; legal representation; medical consultation.

The [Division] Office of Mental Health Advocacy may provide such legal representation and medical consultation as the [director] Mental Health Advocate deems appropriate for any indigent mental hospital admittee in any proceeding concerning the admittee's admission to, and retention in, or release from confinement in such a hospital, institution or facility.

(cf: P.L.2005, c.155, s.32)

5. (New section) Office of Mental Health Advocacy; screening and diversion program concerning municipal court prosecutions.

a. The Office of Mental Health Advocacy, under the direction of the Director of the Division of Mental Health and Addiction Services, and in consultation with and as agreed to by the Administrative Office of the Courts, shall make mental health screeners, case managers, or other appropriately trained staff, whether employees or otherwise retained by the office as provided by sections 35 and 36 of P.L.2005, c.155 (C.52:27EE-35 and C.52:27EE-36), available, throughout the State, to conduct mental health screenings on persons charged or arrested for a violation or offense that is subject to prosecution in municipal court. The mental health screening provided in this section may be conducted on any person charged or arrested, notwithstanding the financial eligibility requirements for determining a person’s eligibility for office services pursuant to section 33 of P.L.2005, c.155 (C.52:27EE-33).

b. Any time following a charge or arrest, and up to the time of trial, a prosecutor, judge, or other party may recommend, before commencing a trial, that the person charged or arrested undergo mental health screening. Whenever a person is screened and a mental illness identified, the mental health screener, case manager, or other trained staff shall present recommendations to the prosecutor for referring the person for a program of residential treatment at a facility, or a program of nonresidential treatment with a provider, that is licensed and approved by the Division of Mental Health and Addiction Services. If the prosecutor accepts the recommendation for mental health treatment, and the person agrees to the treatment, the judge may postpone all further proceedings against the person and refer the person for treatment. As provided in any accompanying court order concerning the referral for mental health treatment, if the person violates the terms of the treatment, a prosecution for the violation or offense associated with the person’s charge or arrest may be reactivated.

6. Section 33 of P.L.2005, c.155 (C.52:27EE-33) is amended to read as follows:

33. [Division] Office of Mental Health Advocacy; eligibility for services.

Eligibility for mental health advocacy services shall be determined on the basis of the need of the client. Need shall be measured according to the financial ability of the client to engage and compensate competent private counsel and to provide all other necessary expenses of representation. Such ability shall be recognized to be a variable depending on the nature, extent and liquidity of assets and on the disposable net income of the client as compared with the nature of the case, the effort and skill required to gather pertinent information, render advice, conduct trial or render other legal services, and probable expenses to be incurred. In the event that a determination of eligibility cannot be made before the time when the first services are to be rendered, or if an initial determination is found to be erroneous, the [division] office shall undertake the same provisionally, and if it is determined subsequently that the client is ineligible, the [division] office shall so inform the client, and the client shall thereupon, with the approval of the court, be obliged to engage his [or her] own counsel and to reimburse the [division] office for the cost of the services rendered to that time.

(cf: P.L.2005, c.155, s.33)

7. Section 34 of P.L.2005, c.155 (C.52:27EE-34) is amended to read as follows:

34. [Division] Office of Mental Health Advocacy; financial status of client; investigation.

The [Division] Office of Mental Health Advocacy shall make such investigation of the financial status of each mental health client as the circumstances warrant. The [division] office, pursuant to rules and regulations promulgated by the [Office of the Public Defender] Division of Mental Health and Addiction Services for this purpose, may obtain information from any public record, office of the State or of any subdivision or agency thereof on request and without payment of the fees ordinarily required by law.

(cf: P.L.2010, c.34, s.27)

8. Section 35 of P.L.2005, c.155 (C.52:27EE-35) is amended to read as follows:

35. [Division] Office of Mental Health Advocacy; staff.

a. The [Director of the Division of] Mental Health [Advocacy] Advocate may employ, with the approval of the [Public Defender] Director of the Division of Mental Health and Addiction Services, such assistants on a full-time basis as are necessary to protect the rights of persons with mental illness. When exceptional circumstances arise, the [director] Mental Health Advocate may retain, with the approval of the [Public Defender] director, on a temporary basis such other expert assistants as are necessary pursuant to a reasonable fee schedule established in advance by the [Public Defender] director.

b. Cases shall be assigned to staff attorneys or attorneys hired by case on a basis calculated to provide competent representation in light of the nature of the case, the services to be performed, the experience of the particular attorney and other relevant factors.

c. Employees of the Division of Mental Health Advocacy in the [Department] Office of the Public [Advocate] Defender who are client services representatives or patient advocates for the mentally ill providing patient advocacy services in State or county facilities that provide inpatient care, supervision and treatment for persons with mental illness, including psychiatric facilities, and the functions of such employees, are hereby transferred to the Office of [the Public Defender] Mental Health Advocacy in the Division of Mental Health and Addiction Services to be employees thereof. The [Public Defender] director of the division through the [Division] Office of Mental Health Advocacy shall employ such persons and continue such functions in the manner the [Public Defender] division director and the [director of the division] Mental Health Advocate shall deem appropriate and necessary. These employees shall report to the Mental Health Advocate and the division director [and the Public Defender].

(cf: P.L.2010, c.34, s.28)

9. Section 36 of P.L.2005, c.155 (C.52:27EE-36) is amended to read as follows:

36. [Division] Office of Mental Health Advocacy; status of staff.

Independent contractors or other individuals, agencies, or entities not established in or employed by the Office of [the Public Defender] Mental Health Advocacy retained to provide protection and advocacy services to indigent mental hospital admittees, or designated to provide mental health protection and advocacy services, are not public entities or public employees for purposes of the "New Jersey Tort Claims Act," N.J.S.59:1-1 et seq.

(cf: P.L.2010, c.34, s.29)

10. Section 37 of P.L.2005, c.155 (C.52:27EE-37) is amended to read as follows:

37. [Division] Office of Mental Health Advocacy; transfer of functions.

a. Until the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill):

(1) All functions, powers, and duties which had been vested in the Division of Mental Health Advocacy in the Department of the Public Advocate are hereby transferred to and assumed by the Division of Mental Health Advocacy in the Office of the Public Defender.

(2) Whenever, in any law, rule, regulation, order, reorganization plan, contract, document, judicial or administrative proceeding, or otherwise, reference is made to the Division of Mental Health Advocacy in the Department of the Public Advocate, the same shall mean and refer to the Division of Mental Health Advocacy in the Office of the Public Defender.

b. On and after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill):

(1) All functions, powers, and duties which had been vested in the Division of Mental Health Advocacy in the Office of the Public Defender are hereby transferred to and assumed by the Office of Mental Health Advocacy in the Division of Mental Health and Addiction Services within the Department of Health.

(2) Whenever, in any law, rule, regulation, order, reorganization plan, contract, document, judicial or administrative proceeding, or otherwise, reference is made to the Division of Mental Health Advocacy in the Office of the Public Defender, the same shall mean and refer to the Office of Mental Health Advocacy in the Division of Mental Health and Addiction Services within the Department of Health.

(cf: P.L.2010, c.34, s.30)

11. Section 3 of P.L.2009, c.161 (C.30:4-3.25) is amended to read as follows:

3. The department shall notify the [Division] Office of Mental Health Advocacy in the [Office of the Public Defender] Department of Health’s Division of Mental Health and Addiction Services within 24 hours after an unexpected death occurs at a State psychiatric hospital and shall promptly notify the [Division] Office of Mental Health Advocacy of any death of which the department has knowledge that occurs within seven days after a patient was discharged from a State psychiatric hospital.

(cf: P.L.2010, c.34, s.7)

12. Section 37 of P.L.1994, c.58 (C.52:27E-75) is amended to read as follows:

37. Any agency designated by the Governor to serve as the State's protection and advocacy agency for the mentally ill and for the developmentally disabled shall have the same access to client records and files, to agency records and to the premises of State or private institutions as the [Division] Office of Mental Health Advocacy in the [Office of the Public Defender] Division of Mental Health and Addiction Services. The intent of this section is that any private protection and advocacy agency designated by the Governor have all of the powers necessary to carry out its responsibilities as required to qualify for federal funding as the protection and advocacy agency.

(cf: P.L.2010, c.34, s.19)

13. There is appropriated from the General Fund $15,000,000 for the purposes of implementing the mental health screening program for persons charged or arrested for a violation or offense that is subject to prosecution in municipal court established under section 5 of this act.

14. This act shall take effect on the first day of the seventh month next following enactment, except the Public Defender, Director of the Division of Mental Health and Addiction Services, Director of the Division of Mental Health Advocacy being re-titled the Mental Health Advocate, and the Director of the Administrative Office of the Courts may take any anticipatory administrative action in advance of the effective date as shall be necessary to implement the provisions of this act.

STATEMENT

This bill, concerning mental health advocacy, would transfer the Division of Mental Health Advocacy from the Office of the Public Defender to the Division of Mental Health and Addiction Services, within the Department of Health, and re-title the transferred division as the Office of Mental Health Advocacy. The director of the former division would be re-titled the Mental Health Advocate.

The organization, functions, and duties of the Office of Mental Health Advocacy would generally remain the same. The bill would add a general function for mental health screening to complement the office’s existing general functions of advocating for care and quality of life for persons with mental illness.

Additionally, applying the office’s new screening function, the bill would establish a mental health screening program for persons charged or arrested for a violation or offense that is subject to prosecution in municipal court. The office, under the direction of the Division of Mental Health and Addiction Services, and in consultation with the Administrative Office of the Courts, would make mental health screeners, case managers, or other appropriately trained staff available, throughout the State, to conduct the mental health screenings. A screening could be conducted on any person charged or arrested, notwithstanding the current law’s financial eligibility requirements for determining a person’s eligibility for mental health services set forth in section 33 of P.L.2005, c.155 (C.52:27EE-33).

Any time following a charge or arrest, and up to the time of trial, a prosecutor, judge, or other party could recommend, before commencing a trial, that the person charged or arrested undergo a mental health screening. Whenever a person was screened and a mental illness identified, the mental health screener, case manager, or other trained staff would present recommendations to the prosecutor for referring the person for a program of residential treatment at a facility, or a program of nonresidential treatment with a provider, that is licensed and approved by the Division of Mental Health and Addiction Services. If the prosecutor accepted the recommendation for mental health treatment, and the person agreed to the treatment, the judge could postpone all further proceedings against the person and refer the person for treatment. If the person thereafter violated the terms of the treatment, a prosecution for the violation or offense associated with the person’s charge or arrest could be reactivated.

In order to implement the new mental health screening program concerning municipal court prosecutions, the bill would appropriate $15,000,000 from the State’s General Fund.