HB-5820, As Passed Senate, December 18, 2018
April 17, 2018, Introduced by Reps. Kesto and Vaupel and referred to the Committee on Health Policy.
A bill to amend 1974 PA 258, entitled
"Mental health code,"
by amending a subheading of chapter 5 and sections 500, 501, 502,
503, 504, 505, 508, 509, 510, 511, 512, 515, 516, 517, 518, 519,
520, 521, 525, 526, 527, 528, 531, 532, 536, 537, 540, and 541 (MCL
330.1500, 330.1501, 330.1502, 330.1503, 330.1504, 330.1505,
330.1508, 330.1509, 330.1510, 330.1511, 330.1512, 330.1515,
330.1516, 330.1517, 330.1518, 330.1519, 330.1520, 330.1521,
330.1525, 330.1526, 330.1527, 330.1528, 330.1531, 330.1532,
330.1536, 330.1537, 330.1540, and 330.1541), sections 500, 502,
503, 505, 508, 509, 510, 511, 512, 516, 517, 518, 519, 520, 521,
527, 528, 531, 532, 536, 537, 540, and 541 as amended by 1995 PA
290, sections 504 and 515 as amended by 2014 PA 72, and section 525
as amended by 1998 PA 382.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 500. As used in this chapter, unless the context requires
otherwise:
(a) "Administrative admission" means the admission of an
individual
with a developmental disability to a center pursuant to
facility under section 509.
(b) "Alternative program of care and treatment" means an
outpatient program of care and treatment suitable to the
individual's needs under the supervision of a psychiatrist that is
developed in accordance with person-centered planning under section
712.
(c) (b)
"Court" means the probate
court or the court with
responsibility with regard to mental health matters for the county
in which an individual with a developmental disability resides or
was found.
(d) (c)
"Criteria for judicial admission"
treatment" means the
criteria
specified in section 515 for admission of an adult with a
developmental
an intellectual disability to a center, facility,
private facility, or alternative program of care and treatment
under section 518.
(e) (d)
"Private facility" means
an adult foster care facility
operated under contract with a community mental health services
program or on a private pay basis that agrees to do both of the
following:
(i) Accept the judicial admission of an
individual with
developmental disability.
(ii) Fulfill the duties of a center facility as
described in
this chapter.
(f) "Treatment" means admission into an appropriate treatment
facility or an outpatient program of care and treatment suitable to
the individual's needs under the supervision of a psychiatrist that
is developed in accordance with person-centered planning under
section 712.
Sec. 501. The department shall prescribe the forms to be used
under this chapter, and all facilities shall use department forms.
Forms
that may be used in court proceedings under this chapter
shall
be subject to the approval of the supreme court.At the
direction of the supreme court, the state court administrative
office shall prescribe the forms used for court proceedings under
this chapter.
Sec.
502. An individual shall be admitted to a center facility
only
pursuant according to the provisions of this act.
Sec. 503. (1) An individual under 18 years of age shall not be
judicially
admitted to a center, facility, private facility, or
other residential program.
(2) Administrative admission under section 509 is the
preferred form of admission for individuals 18 years of age or
older.
Sec. 504. An individual with a developmental disability other
than an intellectual disability is eligible for temporary and
administrative
admission under sections 508 and 509.
, but is not
eligible
for judicial admission.
Sec.
505. (1) Six months prior to before
the eighteenth
birthday
of each resident in a center, facility,
the resident shall
be evaluated by the center for the purpose of determining whether
he or she is competent to execute an application for administrative
admission.
(2)
If it is determined by the center facility that the
resident is not competent to execute an application for
administrative admission, or otherwise requires the protective
services of a guardian, a parent, or if none, another interested
person or entity, the parent, guardian, or interested party shall
be notified and requested to file a petition for the appointment of
a plenary or partial guardian. If a petition is not filed, the
center
facility may, but need not, file a petition.
Sec. 508. (1) An individual with a developmental disability
referred by a community mental health services program may be
temporarily
admitted to a center facility
for appropriate clinical
services if an application for temporary admission is executed by a
person legally empowered to make the application and if it is
determined that the individual is suitable for admission. The
services to be provided to the individual shall be determined by
mutual agreement between the community mental health services
program,
the center, facility, and the person making the
application, except that no individual may be temporarily admitted
for more than 30 days.
(2) An application for temporary admission shall contain the
substance of subsection (1).
Sec. 509. (1) An individual with a developmental disability
under 18 years of age shall be referred by a community mental
health services program before being considered for administrative
admission
to a center. facility. An application for the
individual's admission shall be executed by a parent, guardian, or,
in the absence of a parent or guardian, a person in loco parentis
if it is determined that the minor is suitable for admission.
(2) An individual with a developmental disability who is 18
years of age or older and is referred by a community mental health
services
program may be admitted to a center facility on an
administrative admission basis if an application for the
individual's admission is executed by the individual if competent
to do so, or by a guardian if the individual is not competent to do
so, and if it is determined that the individual is suitable for
admission.
(3) An application for administrative admission shall contain
in large type and simple language the substance of sections 510,
511, and 512. At the time of admission, the rights set forth in the
application shall be explained to the resident and to the person
who executed the application for admission. In addition, a copy of
the application shall be given to the resident, the person who
executed the application, and to 1 other person designated by the
resident.
Sec.
510. (1) Prior to Before the administrative admission of
any
individual, the individual may be received by the center
facility designated and approved by the community mental health
services program for up to 10 days in order for a preadmission
examination to be conducted. No individual may be administratively
admitted unless the individual was referred by the community mental
health services program and was given a preadmission examination by
the
center facility for the purpose of determining the individual's
suitability for admission.
(2) The preadmission examination shall include mental,
physical, social, and educational evaluations, and shall be
conducted under the supervision of a registered nurse or other
mental health professional possessing at least a master's degree.
The results of the examination shall be contained in a report to be
made part of the individual's record, and the report shall also
contain a statement indicating the most appropriate living
arrangement that is necessary to meet the individual's treatment
needs.
(3) At least once annually each administratively admitted
resident shall be reexamined for the purpose of determining whether
he or she continues to be suitable for admission.
Sec. 511. (1) Objection may be made to the admission of any
administratively
admitted resident. Objections An
objection may be
filed with the court by a person found suitable by the court or by
the resident himself or herself if he or she is at least 13 years
of age. An objection may be made not more than 30 days after
admission of the resident, and may be made subsequently at any 6-
month interval following the date of the original objection or, if
an original objection was not made, at any 6-month interval
following the date of admission.
(2) An objection shall be made in writing, except that if made
by the resident, an objection to admission may be communicated to
the court or judge of probate and the executive director of the
community mental health services program by any means, including
but not limited to oral communication or informal letter. If the
resident
informs the center facility
that he or she desires to
object
to the admission, the center facility
shall assist the
resident in submitting his or her objection to the court.
(3) Upon receiving notice of an objection, the court shall
schedule a hearing to be held within 7 days, excluding Sundays and
holidays. The court shall notify the person who objected, the
resident, the person who executed the application, the executive
director,
and the director of the center facility
of the time and
place of the hearing.
(4)
The hearing shall be is governed by those provisions of
sections 517 to 522, including the appointment of counsel and an
independent medical or psychological evaluation, that the court
deems
considers necessary to ensure that all relevant information
is
brought to its the court's
attention, and by the provisions of
this section.
(5) The court shall sustain the objection and order the
discharge of the resident if the resident is not in need of the
care
and treatment that is available at the center facility or
if
an
alternative to the care and treatment provided in a center
facility is available and adequate to meet the resident's needs.
(6) Unless the court sustains the objection and orders the
discharge
of the resident, the center facility
may continue to
provide residential and other services to the resident.
(7) Unwillingness or inability of the parent, guardian, or
person in loco parentis to provide for the resident's management,
care,
or residence shall is not be grounds for refusing to sustain
the objection and order discharge, but in that event the objecting
person may, or a person authorized by the court shall, promptly
file a petition under section 637 or, if the resident is a
juvenile,
under section 2 of chapter XIIA of Act No. 288 of the
Public
Acts of 1939, being section 712A.2 of the Michigan Compiled
Laws,
the probate code of 1939,
1939 PA 288, MCL 712A.2, to ensure
that suitable management, care, or residence is provided.
Sec.
512. (1) A center facility
may detain an administratively
admitted resident for a period not exceeding 3 days from the time
that the person who executed the application for the resident's
admission
gives written notice to the center facility of his or her
intention
that the resident leave the center.facility.
(2)
When a center facility is notified of a resident's
intention
to leave the center, facility,
it shall promptly supply
an appropriate form to the person who made the notification and
notify the appropriate community mental health services program.
JUDICIAL ADMISSIONINTELLECTUAL DISABILITY TREATMENT
Sec.
515. A court may order the admission appropriate
outpatient treatment or admission into an appropriate treatment
facility
of an individual 18 years of age or
older who meets both
of
the following requirements:if
the individual has been diagnosed
as an individual with an intellectual disability and either of the
following applies:
(a)
Has been diagnosed as an individual with an intellectual
disability.
(a) (b)
Can The individual can be reasonably expected within
the near future to intentionally or unintentionally seriously
physically
injure himself, or herself, or another person, and has
overtly acted in a manner substantially supportive of that
expectation.
(b) The individual has been arrested and charged with an
offense that was a result of the intellectual disability.
Sec. 516. (1) Any person found suitable by the court may file
with the court a petition that asserts that an individual meets the
criteria
for judicial admission treatment
specified in section 515.
(2) The petition shall contain the alleged facts that are the
basis for the assertion, the names and addresses, if known, of any
witnesses to alleged and relevant facts, and if known the name and
address of the nearest relative or guardian of the individual.
(3) If the petition appears on its face to be sufficient, the
court shall order that the individual be examined and a report be
prepared. To this end, the court shall appoint a qualified person
who may but need not be an employee of the community mental health
services program or the court to arrange for the examination, to
prepare the report, and to file it with the court.
(4) If it appears to the court that the individual will not
comply with an order of examination under subsection (3), the court
may order a peace officer to take the individual into protective
custody
and transport him or her immediately to a center facility
recommended by the community mental health services program or
other suitable place designated by the community mental health
services program for up to 48 hours for the ordered examination.
(5) After examination, the individual shall be allowed to
return home unless it appears to the court that he or she requires
immediate admission to the community mental health services
program's
recommended center facility
in order to prevent physical
harm
to himself, or herself, or others pending a
hearing, in which
case the court shall enter an order to that effect. If an
individual is ordered admitted under this subsection, not later
than
12 hours after he or she is admitted the center facility shall
provide him or her with a copy of the petition, a copy of the
report, and a written statement in simple terms explaining the
individual's rights to a hearing under section 517, to be present
at the hearing and to be represented by legal counsel, if 1
physician and 1 licensed psychologist or 2 physicians conclude that
the
individual meets the criteria for judicial admission.treatment.
(6) The report required by subsection (3) shall contain all of
the following:
(a) Evaluations of the individual's mental, physical, social,
and educational condition.
(b) A conclusion as to whether the individual meets the
criteria
for judicial admission treatment
specified in section 515.
(c) A list of available forms of care and treatment that may
serve
as an alternative to admission to a center.facility.
(d) A recommendation as to the most appropriate living
arrangement for the individual in terms of type and location of
living arrangement and the availability of requisite support
services.
(e) The signatures of 1 physician and 1 licensed psychologist
or 2 physicians who performed examinations serving in part as the
basis of the report.
(7) A copy of the report required under subsection (3) shall
be sent to the court immediately upon completion.
(8) The petition shall be dismissed by the court unless 1
physician and 1 licensed psychologist or 2 physicians conclude, and
that conclusion is stated in the report, that the individual meets
the
criteria for judicial admission.treatment.
(9) An individual whose admission was ordered under subsection
(5) is entitled to a hearing in accordance with section 517.
Sec.
517. (1) Hearings A
hearing convened to determine whether
an
individual meets the criteria for judicial admission shall be
treatment is governed by sections 517 to 522. Sections 517 to 522
do
not apply to the a hearing provided for in section 511
concerning an objection to an administrative admission.
(2) Upon receipt of a petition and a report as provided for in
section 516 or 532, or receipt of a petition as provided for in
section 531, the court shall do all of the following:
(a) Fix a date for a hearing to be held within 7 days,
excluding Sundays or holidays, after the court's receipt of the
documents or document.
(b)
Fix a place for a hearing, either at a center facility or
other convenient place, within or outside of the county.
(c) Cause notice of a petition and of the time and place of
any hearing to be given to the individual asserted to meet the
criteria
for judicial admission, treatment,
his or her attorney,
the petitioner, the prosecuting or other attorney specified in
subsection (4), the community mental health services program, the
director
of any center a facility to which the individual is
admitted, the individual's spouse if his or her whereabouts are
known, the guardian, if any, of the individual, and other relatives
or persons as the court may determine. The notice shall be given at
the earliest practicable time and sufficiently in advance of the
hearing date to permit preparation for the hearing.
(d) Cause the individual to be given within 4 days of the
court's receipt of the documents described in section 516 a copy of
the petition, a copy of the report, unless the individual has
previously been given a copy of the petition and the report, notice
of the right to a full court hearing, notice of the right to be
present at the hearing, notice of the right to be represented by
legal counsel, notice of the right to demand a jury trial, and
notice of the right to an independent clinical or psychological
evaluation.
(e) Subsequently give copies of all orders to the persons
identified in subdivision (c).
(3)
The individual asserted to meet the criteria for judicial
admission
treatment is entitled to be represented by legal counsel
in the same manner as counsel is provided under section 454, and is
entitled to all of the following:
(a) To be present at the hearing.
(b) To have upon demand a trial by jury of 6.
(c) To obtain a continuance for any reasonable time for good
cause.
(d) To present documents and witnesses.
(e) To cross-examine witnesses.
(f) To require testimony in court in person from 1 physician
or 1 licensed psychologist who has personally examined the
individual.
(g) To receive an independent examination by a physician or
licensed psychologist of his or her choice on the issue of whether
he
or she meets the criteria for judicial admission.treatment.
(4) The prosecuting attorney of the county in which a court
has its principal office shall participate, either in person or by
assistant, in hearings convened by the court of his or her county
under this chapter, except that a prosecutor need not participate
in or be present at a hearing whenever a petitioner or some other
appropriate person has retained private counsel who will be present
in court and will present to the court the case for a finding that
the
individual meets the criteria for judicial admission.treatment.
(5) Unless the individual or his or her attorney objects, the
failure to timely notify a spouse, guardian, or other person
determined by the court to be entitled to notice is not cause to
adjourn or continue any hearing.
(6) The individual, any interested person, or the court on its
own motion may request a change of venue because of residence;
convenience to parties, witnesses, or the court; or the
individual's mental or physical condition.
Sec. 518. (1) If the court finds that an individual does not
meet
the criteria for judicial admission, treatment, the court
shall enter a finding to that effect, shall dismiss the petition,
and shall direct that the individual be discharged if he or she has
been
admitted to a center facility
prior to the hearing.
(2) If the individual is found to meet the criteria for
judicial
admission, treatment, the court shall do 1 or a
combination of the following:
(a)
Order the individual to be admitted to a center facility
designated by the department and recommended by the community
mental health services program.
(b) Order the individual to be admitted to a licensed hospital
at the request of the individual or his or her family member, if
private funds are to be utilized and the private facility complies
with all of the admission, continuing care, and discharge duties
and
requirements described in this chapter for centers.facilities.
(c)
Order the individual to undergo a an outpatient program
for 1 year of care and treatment recommended by the community
mental health services program as an alternative to being admitted
to
a center.facility.
Sec.
519. (1) Prior to Before making an order of disposition
pursuant
to under section 518(2), the court shall consider ordering
a course of care and treatment that is an alternative to admission
to
a center. facility. To that end, the court shall review the
report
submitted to it pursuant to the
court under section 516(3),
specifically reviewing alternatives and recommendations as provided
under section 516(6)(c) and (d).
(2) If the court finds that a program of care and treatment
other
than admission to a center facility
is adequate to meet the
individual's care and treatment needs and is sufficient to prevent
harm
or injury which that the individual may inflict upon himself,
or
herself, or
others, the court shall order the individual to
receive whatever care and treatment is appropriate under section
518(2)(c).
(3)
If at the end of one 1 year it is believed that the
individual
continues to meet the criteria for judicial admission,
treatment, a new petition may be filed under section 516.
(4) If at any time during the 1-year period it comes to the
attention of the court either that an individual ordered to undergo
a program of alternative care and treatment is not complying with
the order or that the alternative care and treatment has not been
sufficient
to prevent harm or injuries which that the individual
may
be inflicting upon himself, or herself, or others, the court
may without a hearing and based upon the record and other available
information do either of the following:
(a)
Consider other alternatives to admission to a center,
facility, modify its original order, and direct the individual to
undergo another outpatient program of alternative care and
treatment for the remainder of the 1-year period.
(b)
Enter a new order pursuant to under
section 518(2)(a) or
(b)
directing that the individual be admitted to a center facility
recommended by the community mental health services program. If the
individual refuses to comply with this order, the court may direct
a peace officer to take the individual into protective custody and
transport
him or her to the center facility
recommended by the
community mental health services program.
Sec.
520. Prior to Before ordering the admission of an
individual, the court shall inquire into the adequacy of care and
treatment to be provided to the individual by the designated
center.
facility. Admission shall not be ordered unless the
recommended
center facility to which the individual is to be
admitted can provide the individual with care and treatment that is
adequate and appropriate to his or her condition.
Sec.
521. Preference between the center facility recommended
by the community mental health services program and other available
facilities under contract with the community mental health services
program shall be given to the facility that can appropriately meet
the individual's needs in the least restrictive environment and
that is located nearest to the individual's residence. If the
individual requests it or there are other compelling reasons for an
order reversing the preference, the community mental health
services program may place the individual in a facility that is not
the nearest to the individual's residence.
Sec.
525. (1) The director of a center facility may at any
time
discharge an administratively or judicially admitted resident
or a resident admitted by court order whom the director considers
suitable for discharge.
(2)
The director of a center facility
shall discharge a
resident admitted by court order when the resident no longer meets
the
criteria for judicial admission.treatment.
(3) If a resident discharged under subsection (1) or (2) has
been
admitted to a center facility
by court order, or if court
proceedings are pending, both the court and the community mental
health services program shall be notified of the discharge by the
center.facility. If a resident met the criteria for
treatment under
section 515(b), the prosecuting attorney must also be notified of
the discharge by a facility.
(4)
If the court orders a person to be judicially admitted
under section 515 subsequent to dismissal of felony charges under
section 1044(1)(b), the court shall include both of the following
statements in the order unless the time for petitioning to refile
charges under section 1044 has elapsed:
(a) A requirement that not less than 30 days before the
resident's scheduled release or discharge, the director of the
treating facility shall notify the prosecutor's office in the
county in which charges against the resident were originally
brought that the resident's release or discharge is pending.
(b) A requirement that not less than 30 days before the
resident's scheduled release or discharge, the resident undergo a
competency examination as described in section 1026. A copy of the
written report of the examination along with the notice required in
subdivision (a) shall be submitted to the prosecutor's office in
the county in which the charges against the resident were
originally brought. The written report is admissible as provided in
section 1030(3).
Sec. 526. (1) A person providing alternative care and
treatment
to an individual pursuant to under
section 518(2) (c)
518(2)(c) may terminate the alternative care and treatment to an
individual whom the provider of alternative care and treatment
deems
considers suitable for termination of care and treatment and
shall terminate the alternative care and treatment when the
individual
no longer meets the criteria for judicial admission.
(2) Upon termination of alternative care and treatment, the
court
shall be so notified by the provider
of the alternative care
and treatment shall notify the court.
Sec. 527. If, upon the discharge of an individual admitted by
court order or upon termination of alternative care and treatment
to an individual receiving care and treatment under section 518(2),
the community mental health services program determines that the
individual would benefit from the receipt of further care and
treatment,
it the community mental
health services program shall
make
arrangements with the center facility
or provider of
alternative care and treatment to continue to provide appropriate
care and treatment to the individual on an administrative basis, or
it
the community mental health
services program shall assist the
individual to obtain appropriate care and treatment from another
source.
Sec. 528. (1) Except as provided in subsection (2), all leaves
or
absences from a center facility
other than release or discharge
and
all revocations of leaves and absences under section 537 shall
be
are governed in accordance with rules or procedures
established
by the department or, in the case of a private facility, in
accordance with procedures of its governing board.
(2) A resident who has been admitted subject to a court order
and
who has been on an authorized leave or absence from the center
facility for a continuous period of 1 year shall be discharged.
Upon the discharge, the court shall be notified by the
center.facility.
Sec. 531. (1) Every resident admitted by court order has the
right to regular, adequate, and prompt review of his or her current
status
as an individual meeting the criteria for judicial
admission.
treatment. Six months after the date of an order of
judicial
admission, treatment, and every 6 months after that, the
director
of a center facility to which a resident was admitted
shall review the resident's status as an individual meeting the
criteria
for judicial admission.treatment.
(2) The results of each periodic review shall be made part of
the resident's record, and shall be filed within 5 days of the
review in the form of a written report with the court that ordered
the resident's admission, and within the 5 days, notice of the
results of the review shall be given by the facility to the
resident, his or her attorney, and his or her nearest relative or
guardian.
(3) If the report concludes that the resident continues to
meet
the criteria for judicial admission, treatment, and the
resident or someone on his or her behalf objects to that
conclusion, the resident has the right to a hearing and all other
rights expressed or implied in sections 517 to 522 and may petition
the court for discharge. The petition shall be presented to the
court
or a representative of the center facility within 7 days,
excluding Sundays and holidays, after the report is received. If
the
petition is presented to a representative of the center,
facility, the representative shall transmit it to the court
immediately.
Sec. 532. In addition to the right to a hearing under section
531, a resident admitted by court order has the right to a hearing
and may petition the court for discharge without leave of court
once within each 12-month period from the date of the original
order of admission. The petition shall be accompanied by a
physician's or a licensed psychologist's report setting forth the
reasons for the physician's or licensed psychologist's conclusion
that the resident no longer meets the criteria for judicial
admission.
treatment. If no report accompanies the petition because
the resident is indigent or is unable for reasons satisfactory to
the court to procure a report, the court shall appoint a physician
or a licensed psychologist to examine the resident, and the
physician or licensed psychologist shall furnish a report to the
court. If the report concludes that the resident continues to meet
the
criteria for judicial admission, treatment, the court shall
so
notify the resident and shall dismiss the petition for discharge.
If
the report concludes otherwise, a hearing shall be held pursuant
according to sections 517 to 522.
Sec.
536. (1) A resident in a center facility
may be
transferred
to any other center, facility,
or to a hospital
operated by the department, if the transfer would not be
detrimental to the resident and the responsible community mental
health services program approves the transfer.
(2) The resident and his or her nearest relative or guardian
shall
be notified at least 7 days prior to before any transfer,
except that a transfer may be effected earlier if necessitated by
an emergency. In addition, the resident may designate 2 other
persons to receive the notice. If the resident, his or her nearest
relative, or guardian objects to the transfer, the department shall
provide an opportunity to appeal the transfer.
(3) If a transfer is effected due to an emergency, the
required notices shall be given as soon as possible, but not later
than 24 hours after the transfer.
Sec. 537. (1) An individual is subject to being returned to a
center
facility if both of the following are true:
(a)
The individual was admitted to a center facility on an
application executed by someone other than himself or herself or by
judicial order.
(b)
The individual has left the center facility without
authorization, or has refused a lawful request to return to the
center
facility while on an authorized leave or other authorized
absence
from the center.facility.
(2)
The center facility may notify peace officers that an
individual
is subject to being returned to the center. facility.
Upon notification, a peace officer shall take the individual into
protective
custody and return him or her to the center facility
unless
contrary directions have been given by the center facility
or the responsible community mental health services program.
(3) An opportunity for appeal shall be provided to any
individual returned over his or her objection from any authorized
leave in excess of 10 days, and the individual shall be notified of
his or her right to appeal. In the case of a child less than 13
years of age, the appeal shall be made by his or her parent or
guardian.
Sec. 540. (1) A determination that an individual meets the
criteria
for judicial admission, treatment,
a court order directing
that
an individual be admitted to a center facility or receive
alternative care and treatment, or any form of admission to a
private
facility shall does not give rise to a presumption of,
constitute a finding of, or operate as an adjudication of legal
incompetence.
(2) An order of commitment under any previous statute of this
state
shall does not, in the absence of a concomitant appointment
of a guardian, constitute a finding of or operate as an
adjudication of legal incompetence.
Sec. 541. An individual admitted to a center facility shall
at
the time of admission receive a copy of section 540. An individual
discharged
from a center facility shall receive a copy of section
540 upon request.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.