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AO5855 Summary:

BILL NOA05855
 
SAME ASNo Same As
 
SPONSORLemondes
 
COSPNSR
 
MLTSPNSR
 
Add Art 23 §§23.01 - 23.13, amd §§33.08 & 19.17, Ment Hyg L; amd §216.05, CP L; amd §5, Cor L
 
Relates to the establishment and operations of a dedicated opioid rehabilitation facility and the personal needs allowance for residents of a dedicated opioid rehabilitation facility; relates to the diversion of certain defendants to a mandatory opioid rehabilitation facility; relates to the establishment of a dedicated opioid rehabilitation facility and the provision of corrections officers to such facilities.
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AO5855 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5855
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                      March 1, 2021
                                       ___________
 
        Introduced by M. of A. LEMONDES -- read once and referred to the Commit-
          tee on Alcoholism and Drug Abuse
 
        AN ACT to amend the mental hygiene law, in relation to the establishment
          and  operations  of a dedicated opioid rehabilitation facility and the
          personal needs allowance for residents of a dedicated opioid rehabili-
          tation facility; to amend the criminal procedure law, in  relation  to
          the  diversion  of  certain defendants to a mandatory opioid rehabili-
          tation facility; and to amend the correction law, in relation  to  the
          establishment  of  a  dedicated opioid rehabilitation facility and the
          provision of corrections officers to such facilities
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  This  act shall be known and may be cited as "the Jessica
     2  Nicole Gentile law".
     3    § 2. Legislative intent. (a) Opioid addiction  is  a  chronic  disease
     4  that can cause major health, social and economic problems. Opioids are a
     5  class  of  drugs  that  act in the nervous system to produce feelings of
     6  pleasure and pain relief. Some opioids are legally prescribed by  health
     7  care  providers  to  manage severe and chronic pain. Commonly prescribed
     8  opioids include oxycodone, fentanyl, buprenorphine,  methadone,  oxymor-
     9  phone,  hydrocodone,  codeine,  and  morphine.  Other  opioids,  such as
    10  heroin, are illegal drugs of abuse.
    11    Opioid addiction is characterized by a powerful,  compulsive  urge  to
    12  use opioid drugs, even if or when they are no longer required medically.
    13  Opioids have a high potential for causing addiction in some people, even
    14  when the medications are prescribed appropriately and taken as directed.
    15  Many  prescription  opioids are misused or diverted to others.  Individ-
    16  uals who become addicted may prioritize getting and  using  these  drugs
    17  over  other  activities in their lives, often negatively impacting their
    18  professional and personal relationships. It is unknown why  some  people
    19  are more likely to become addicted than others.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09445-01-1

        A. 5855                             2
 
     1    Opioids  change the chemistry of the brain and lead to drug tolerance,
     2  which means that over time the dose needs to be increased to achieve the
     3  same effect.  Taking opioids over a long period of time produces depend-
     4  ence, such that when people stop taking the drug, they have physical and
     5  psychological  symptoms of withdrawal (such as muscle cramping, diarrhea
     6  and anxiety). Dependence is not the same thing  as  addiction;  although
     7  everyone who takes opioids for an extended period will become dependent,
     8  only  a small percentage also experience the compulsive, continuing need
     9  for the drug that characterizes addiction.
    10    Opioid addiction can cause life-threatening health problems, including
    11  the risk of overdose. Overdose occurs when high doses of  opioids  cause
    12  breathing  to  slow or stop, leading to unconsciousness and death if the
    13  overdose is not treated immediately.  Both  legal  and  illegal  opioids
    14  carry  a  risk of overdose if a person takes too much of the drug, or if
    15  opioids are combined with other drugs (particularly tranquilizers called
    16  benzodiazepines).
    17    In many cases, addiction requires a gateway drug.  Gateway  drugs  are
    18  substances  that,  when  consumed,  give  way  to harder, more dangerous
    19  drugs. These  milder  substances,  such  as  nicotine  or  alcohol,  are
    20  believed  to  open the door to the use of drugs such as meth, heroin and
    21  cocaine, which can lead to  addiction.  Opioid  abuse  does  not  always
    22  entail  prior  use  of  a gateway drug as opioids themselves are gateway
    23  drugs.
    24    Opioid abuse, along with the resulting overdose deaths, has  risen  to
    25  the point of being one of the worst drug epidemics in the history of the
    26  United  States.    According  to  the  Centers  for  Disease Control and
    27  Prevention (CDC) more than 750,000 people have died since  1999  from  a
    28  drug overdose. Two out of three drug overdose deaths in 2018 involved an
    29  opioid.  The  CDC reports that opioids were involved in more than 47,600
    30  overdose deaths in 2017 alone.
    31    Rarely do people abusing or addicted to  opioids  seek  treatment  for
    32  their  addiction  problems  until  they  run into problems with the law.
    33  According to research, opioid abusers do not believe  that  quitting  is
    34  even  an  option,  as  the  addiction  is  so powerful, they cannot even
    35  comprehend being free of it. For the most part, there are no  volunteers
    36  in  current  opioid  recovery programs, just forced participants ordered
    37  into the programs by the court. This makes the legal system, in  partic-
    38  ular  the  drug courts, an important part of this societal mental health
    39  crisis.
    40    (b) New York state leads the nation in the expansion  and  implementa-
    41  tion of drug courts into daily court operations.
    42    Drug  courts  use  a  collaborative  approach  to  treatment involving
    43  defense attorneys, prosecutors, treatment and education  providers,  and
    44  law  enforcement  officials.  Article  216 of the criminal procedure law
    45  authorizes a criminal drug court to  divert  eligible  felony  offenders
    46  into  substance  abuse  treatment programs in lieu of incarceration in a
    47  correctional  facility.  Non-violent  offenders  voluntarily  enter  the
    48  program  in  which  rules are clearly defined and a contract between the
    49  offender, attorneys, the district attorney and the court is signed.
    50    There are 141 drug courts in operation  statewide.  Defendants  facing
    51  certain  felony  or misdemeanor charges where drug addiction is a compo-
    52  nent of their offense may be eligible to participate in a criminal  drug
    53  treatment  court  program.  Those  who  successfully complete their drug
    54  treatment court program may have their charges dismissed or  reduced  or
    55  may receive a reduction in their sentence.

        A. 5855                             3
 
     1    Young  adult  drug  treatment courts are operational in several of the
     2  criminal  courts.  These  courts  target  defendants  in  the   16-   to
     3  21-year-old population.
     4    In  2017,  New York state opened the first opioid court in the nation.
     5  The Buffalo Opioid Intervention Court provides  immediate  intervention,
     6  treatment  and medication for defendants who screen positive for opioids
     7  and who staff feel are at risk of overdose or addiction. The  University
     8  of  Buffalo  School of Family Medicine (UBFM), a grant partner, contrib-
     9  utes key staff positions. Those staff members provide daily case manage-
    10  ment for program participants and link those participants to  medication
    11  assisted treatment (MAT) within 48 hours of arraignment when indicated.
    12    In  the  Bronx,  which has one of the highest number of opioid-related
    13  overdoses and deaths in the state, the Bronx Opioid Avoidance and Recov-
    14  ery Court is a collaboration between the  court,  prosecutors,  and  the
    15  defense  bar.  Defendants  charged  with misdemeanor drug possession are
    16  diverted to existing treatment services. Because only misdemeanor offen-
    17  ders are eligible, charges are generally dismissed  upon  completion  of
    18  the recommended intervention.
    19    Results  from these diversion treatment programs have been positive. A
    20  2003 study of six drug courts conducted by the Center  for  Court  Inno-
    21  vation  demonstrated that the rates at which drug court graduates re-of-
    22  fend were significantly reduced as compared to rates at which  incarcer-
    23  ated   individuals   re-offended.   Notwithstanding  the  foregoing,  an
    24  additional treatment option is required.
    25    Unfortunately, a percentage of defendants passing through drug  courts
    26  and  their  treatment  options  have  a difficult time remaining free of
    27  drugs after completing treatment,  particularly  those  individuals  who
    28  abuse  or  are  addicted to opioids. As the American Medical Association
    29  has declared substance abuse a disease, it can be  assumed  some  people
    30  are  sicker than others.  After completing treatment in a rehabilitation
    31  program and returning into society, usually in the same town where their
    32  drug contacts were, these individuals have a  difficult  time  remaining
    33  drug-free.
    34    The  current  model of drug court will tolerate relapse after relapse,
    35  to a certain point.  When judges get weary of these chronically addicted
    36  defendants, they place them directly into the  criminal  system  of  the
    37  court  to  serve  prison  time.  There is no middle ground between "drug
    38  court" rehabilitation referral and "criminal  court  system"  incarcera-
    39  tion.  Once  in  the criminal court system, each opioid abuser or addict
    40  will cost the state approximately $65,000 to $80,000 a year (the average
    41  cost of maintaining a prisoner). The recidivism rate for those sentenced
    42  to prison is approximately 45%.
    43    The cost of maintaining long-term or even lifelong inmates  in  prison
    44  and  the  destruction of many lives could be reduced by adding an option
    45  to the system between drug court and the criminal  system:  a  mandatory
    46  state-run  opioid  rehabilitation center, where people could voluntarily
    47  sign away their right to leave for one year or longer  in  exchange  for
    48  not  being  put into the prison system. In other words, a lock-up treat-
    49  ment center.
    50    This approach stands in contrast to  current  rehabilitation  referral
    51  measures  which entail outpatient treatment or residential treatment for
    52  limited periods of time. For some  individuals,  rehabilitation  options
    53  are determined by their insurance plan, not their actual needs.
    54    A state-run residential rehabilitation center would provide drug court
    55  judges  with  another  alternative  to  criminal court. It would provide
    56  ongoing treatment over an extended period of  time;  participants  would

        A. 5855                             4
 
     1  not be released until health care providers believed they could success-
     2  fully refrain from drug use. Drug court judges would have another alter-
     3  native  to criminal court. They would no longer have to tolerate relapse
     4  after  relapse.    Participants  would benefit from an environment where
     5  recovery would be easier for them.
     6    (c) The legislature finds and declares that it is in the best interest
     7  of the people of the state of New York to reduce the burden on the  drug
     8  courts, the cost to the state and the amount of time needed by the judi-
     9  cial  system to handle drug cases by referring opioid-abusing or opioid-
    10  addicted criminal defendants to a facility under the supervision of  the
    11  Office  of  Addiction  Services  and  Supports,  while  at the same time
    12  providing desperately needed treatment to such individuals.  As  opposed
    13  to  incarceration,  a  mental  health  response is more likely to reduce
    14  recidivism, saving both lives and taxpayer money.
    15    § 3. The mental hygiene law is amended by adding a new article  23  to
    16  read as follows:
    17                                 ARTICLE 23
    18             DEDICATED OPIOID REHABILITATION TREATMENT FACILITY
    19  Section 23.01 Definitions.
    20          23.02 Establishment of a dedicated opioid rehabilitation facili-
    21                  ty.
    22          23.03 Dedicated opioid rehabilitation facility.
    23          23.04 Admission  to  a dedicated opioid rehabilitation treatment
    24                  facility.
    25          23.05 Referral to a dedicated opioid rehabilitation facility  by
    26                  an opioid court.
    27          23.06 Sentencing agreement.
    28          23.07 Minors.
    29          23.08 Discharge from a dedicated opioid rehabilitation facility.
    30          23.09 Treatment  following  discharge  from  a  dedicated opioid
    31                  rehabilitation facility.
    32          23.10 Court appearances.
    33          23.11 Records.
    34          23.12 Limitations.
    35          23.13 Study.
    36  § 23.01 Definitions.
    37    As used in this article:
    38    1. "commissioner" means the commissioner of the  office  of  addiction
    39  services and supports;
    40    2.  "correctional  institution"  includes  state,  county  and federal
    41  institutions or facilities of corrections and juvenile facilities;
    42    3. "court" or "drug court" means a state drug  court,  a  young  adult
    43  drug  treatment  court,  the  Buffalo  Opioid Intervention Court and the
    44  Bronx Opioid Avoidance and Recovery Court;
    45    4. "dedicated opioid rehabilitation facility" or  "facility"  means  a
    46  dedicated opioid rehabilitation facility established pursuant to section
    47  23.02 of this article;
    48    5.  "defendant"  means  an  individual  referred to a dedicated opioid
    49  rehabilitation facility pursuant to an agreement entered  into  in  drug
    50  court;
    51    6. "eligible defendant" means a defendant who qualifies as an eligible
    52  defendant as defined in section 216.00 of the criminal procedure law;
    53    7. "licensed health care provider" means an individual licensed pursu-
    54  ant to title eight of the education law;

        A. 5855                             5
 
     1    8.  "minor" means a defendant at least sixteen years of age, but under
     2  eighteen years of age, but does not include a person who is  the  parent
     3  of a child or has married or who is emancipated; and
     4    9. "office" means the office of addiction services and supports.
     5  § 23.02 Establishment of a dedicated opioid rehabilitation facility.
     6    1.  The  commissioner of addiction services and supports, in consulta-
     7  tion with the commissioner of health, the  commissioner  of  corrections
     8  and community supervision, the chief administrator of the courts and the
     9  commissioner  of the office of general services, shall establish a dedi-
    10  cated opioid rehabilitation facility for the purpose of providing  long-
    11  term  residential  treatment  of  opioid  abusing or addicted defendants
    12  referred to such facility from a drug court.
    13    2. Such facility shall be operated and supervised  by  the  office  of
    14  addiction  services  and  supports,  with support from the department of
    15  corrections and community supervision.
    16    3. Such facility shall be a secured (locked) facility established  for
    17  the purpose of providing long-term residential treatment of opioid abuse
    18  and opioid addiction as an alternative to incarceration.
    19    4.  In  selecting  the  location  of the facility, preference shall be
    20  given to a site near the Buffalo Opioid Intervention Court or the  Bronx
    21  Opioid  Avoidance  and  Recovery  Court  and  to  facilities  previously
    22  utilized as part of the corrections system or the mental health  system.
    23  Consideration shall be given to the mental health resources available in
    24  the area of the site.
    25  § 23.03 Dedicated opioid rehabilitation facility.
    26    1.  A  dedicated  opioid  rehabilitation treatment facility shall be a
    27  secure (locked) facility.
    28    2. Staff at the facility shall include, but not be limited to:
    29    (a) qualified and  licensed  health  care  providers,  counselors  and
    30  support staff as determined by the office;
    31    (b)  administrative,  maintenance, custodial and other staff as deter-
    32  mined by the office; and
    33    (c) corrections officers, in a number as agreed upon by the office and
    34  the department of corrections and community  supervision  sufficient  to
    35  maintain  order  and remove the temptation of defendants residing at the
    36  facility to flee.
    37    3. Living quarters for defendants referred to the  facility  shall  be
    38  arranged in dormitories housing between four and six defendants.
    39    (a)  Dormitory  facilities  for men and women admitted to the facility
    40  shall be maintained separately.
    41    (b) Dormitory facilities for minors  shall  be  maintained  separately
    42  from dormitory facilities for adults.
    43  § 23.04 Admission to a dedicated opioid rehabilitation treatment facili-
    44             ty.
    45    1.  Admission  to a dedicated opioid rehabilitation treatment facility
    46  shall be allowed only upon referral by a  drug  court  to  the  facility
    47  pursuant  to  the  provisions  of  a sentencing agreement as provided in
    48  section 23.06 of this article.
    49    2. Admission shall be  made  solely  for  the  purpose  of  long-term,
    50  secured residential treatment of opioid abuse and addiction.
    51    3.  A  defendant who has been charged with a class A or class B felony
    52  or of a violent felony offense as described  in  section  70.02  of  the
    53  penal  law  shall not be a candidate for admission to a dedicated opioid
    54  rehabilitation facility.
    55    4. A defendant shall not be a candidate for admission to the  facility
    56  if,  in the discretion of the sentencing court, such person is deemed to

        A. 5855                             6
 
     1  be a danger to himself or herself or to other people, or to  be  a  high
     2  flight risk.
     3    5.  A  minor who meets the criteria for admission as described in this
     4  section may be admitted to the facility, subject to  the  provisions  of
     5  section 23.07 of this article.
     6    6.  A dedicated opioid rehabilitation facility shall have the right to
     7  refuse admission to a defendant whom the facility does not deem a  suit-
     8  able  candidate for successful completion of the programs offered by the
     9  facility.
    10  § 23.05 Referral to a dedicated opioid  rehabilitation  facility  by  an
    11             opioid court.
    12    1.  In his or her discretion, and in accordance with the provisions of
    13  section 216.05 of the criminal procedure law  and  of  this  article,  a
    14  judge  of  a  drug  court  may order a defendant to enter treatment at a
    15  dedicated opioid  rehabilitation  facility.  Any  such  order  shall  be
    16  dependent  upon  approval  by  the  court  of  a sentencing agreement as
    17  provided in section 23.06 of this article.
    18    2. Notwithstanding the provisions of subdivision one of this  section,
    19  a  judge  shall  not  be  required to approve a sentencing agreement for
    20  referral to a dedicated opioid rehabilitation facility, if,  in  his  or
    21  her  discretion, the judge determines that such defendant is not a suit-
    22  able candidate for admission to such facility because:
    23    (a) the defendant is deemed to be a danger to himself or herself or to
    24  other people;
    25    (b) the defendant is deemed to be a high flight risk;
    26    (c) the defendant suffers from substantial mental illness which is not
    27  related to the defendant's opioid abuse or addiction,  excluding  mental
    28  illness such as depression which may be related to the opioid use;
    29    (d)  the  defendant's  past history indicates that the defendant would
    30  not successfully complete the facility program;
    31    (e) of the nature and severity of the crime which with  the  defendant
    32  is charged; or
    33    (f)  of  such other reason as the judge, in his or her sole discretion
    34  may determine.
    35    3. (a) Prior relapse in an alternate drug court treatment program or a
    36  private or public treatment program  shall  not  be  a  prerequisite  to
    37  admission to a dedicated opioid rehabilitation facility.
    38    (b)  A  defendant  who  has relapsed two or more times in an alternate
    39  drug court treatment program shall be referred for admission to a  dedi-
    40  cated opioid rehabilitation facility or ordered to be incarcerated.
    41    4.  (a)  An  opioid  addicted or opioid abusing defendant who has been
    42  sentenced to incarceration in a correctional facility by  a  drug  court
    43  shall  be  eligible to petition the sentencing court for reconsideration
    44  of sentencing and consideration for an  order  of  the  court  directing
    45  admission of the defendant to a dedicated opioid rehabilitation facility
    46  in accordance with the provisions of this article, provided that:
    47    (i)  at  least one year remains on such defendant's sentence of incar-
    48  ceration; or
    49    (ii) if less than one year remains on  such  defendant's  sentence  of
    50  incarceration,  such  defendant agrees to remain at the dedicated opioid
    51  rehabilitation facility for a period of not less than one year.
    52    (b) The granting of a petition described in this subdivision shall  be
    53  in the sole discretion of the court.
    54    5.  Nothing  in  this  article  shall prohibit a sentencing judge from
    55  sentencing a defendant to incarceration in lieu of admission to a  dedi-
    56  cated opioid rehabilitation facility.

        A. 5855                             7
 
     1  § 23.06 Sentencing agreement.
     2    1. Prior to the issuance of an order directing entry into treatment at
     3  a  dedicated opioid rehabilitation facility as provided in section 23.05
     4  of this  article,  the  defendant,  the  defendant's  attorney  and  the
     5  district  attorney,  or  his or her designee, shall enter into a written
     6  sentencing agreement as provided in this section and in  section  216.05
     7  of the criminal procedure law. Such agreement shall be incorporated into
     8  the  record  and shall be approved by the court prior to the issuance of
     9  an order; provided, however, that the court is not required  to  approve
    10  any  agreement which the sentencing judge finds deficient or inappropri-
    11  ate given the circumstances of the case. A copy of such agreement  shall
    12  be  provided  to  the  defendant, to the defendant's attorney and to the
    13  dedicated opioid rehabilitation facility the  defendant  is  ordered  to
    14  attend.
    15    2.  In the case of a defendant who is a minor, such defendant's parent
    16  or guardian shall also be required to consent to the agreement on behalf
    17  of the minor unless the  court  determines  that  parental  or  guardian
    18  involvement  would  have a detrimental effect on the course of treatment
    19  of the minor or is not in the best interests of the minor. In  the  case
    20  of  a  minor who is in the care and custody of the state, consent to the
    21  agreement shall be obtained from the appropriate representative  of  the
    22  department of social services or agency with which the minor was placed.
    23    3.  In addition to any requirements specified in section 216.05 of the
    24  criminal procedure law, a sentencing agreement recommending diversion to
    25  an  opioid  rehabilitation  facility   shall   include   the   following
    26  provisions:
    27    (a)  the  defendant's agreement to reside at the facility for a period
    28  of not less than one year nor more than two years, with  the  length  of
    29  time  being  determined  by  the  rehabilitation  progress the defendant
    30  makes;
    31    (b) the defendant's agreement to be  physically  incarcerated  at  the
    32  facility in lieu of being incarcerated at a correctional facility;
    33    (c)  a  statement by the defendant that he or she understands that the
    34  determination of the defendant's readiness to leave the  facility  shall
    35  be made by staff at the facility; and
    36    (d)  a  statement  by the defendant that the defendant understands and
    37  agrees that if he or she does not comply with the treatment  program  at
    38  the  facility,  any  time  spent  at  the facility shall not be credited
    39  toward the defendant's sentence.
    40  § 23.07 Minors.
    41    1. In treating a minor at a dedicated opioid rehabilitation  treatment
    42  facility, the important role of the parents or guardians shall be recog-
    43  nized.  Steps  shall be taken to involve the parents or guardians in the
    44  course of treatment, unless in the judgment of a  licensed  health  care
    45  provider treating the minor, parental or guardian involvement would have
    46  a  detrimental  effect on the course of treatment of the minor or is not
    47  in the best interests of the minor.
    48    2. Treatment of a minor may be provided to the  minor  by  a  licensed
    49  health care provider operating through the facility, or a person operat-
    50  ing  under  such health care provider's supervision, without the consent
    51  or involvement of the minor's parent or guardian. In  the  case  of  the
    52  treatment of a minor who is in the care and custody of the state, treat-
    53  ment  of  a minor may be provided to the minor by a licensed health care
    54  provider operating through the facility, or  a  person  operating  under
    55  such health care provider's supervision, without the consent or involve-

        A. 5855                             8
 
     1  ment of the department of social services or agency with which the minor
     2  was placed.
     3  § 23.08 Discharge from a dedicated opioid rehabilitation facility.
     4    1.  A  defendant shall be discharged from a dedicated opioid rehabili-
     5  tation facility upon the occurrence of the first of:
     6    (a) a determination by the facility health  care  providers  or  by  a
     7  licensed  health  care provider designated by the sentencing drug court,
     8  or by the opioid court if the defendant's case has been  transferred  to
     9  an  opioid court, that the defendant has made sufficient progress in his
    10  or her rehabilitation to leave the facility program, provided that  such
    11  determination  shall  not  be  made until the defendant has completed at
    12  least one year of successful treatment at the facility;
    13    (b) the expiration of two years at the facility, regardless of whether
    14  the defendant has successfully  completed  the  facility  rehabilitation
    15  program;
    16    (c)  the  defendant's  refusal  to  cooperate with his or her facility
    17  rehabilitation program requirements or to continue in the facility reha-
    18  bilitation program;
    19    (d) the defendant's medical or psychological inability to continue  in
    20  the  facility  rehabilitation  program due to a medical or psychological
    21  condition or  event  clinically  unrelated  to  the  defendant's  opioid
    22  addiction; or
    23    (e)  at  the  request  of the facility to the court for removal of the
    24  defendant from the facility.
    25    2. A defendant who is discharged from the facility pursuant  to  para-
    26  graph  (a)  of  subdivision one of this section shall be referred by the
    27  facility, upon approval by the sentencing court, to a halfway house  and
    28  support program pursuant to section 23.09 of this article.
    29    3.  A  defendant who is discharged from the facility pursuant to para-
    30  graph (b) of subdivision one of this section shall  be  re-sentenced  by
    31  the sentencing court, or by the nearest opioid court if such defendant's
    32  case  has  been  transferred to the opioid court, to serve the remaining
    33  balance of such defendant's sentence at  an  alternative  rehabilitation
    34  program  or  at  a  correctional institution, in the court's discretion.
    35  The facility health care provider or providers who treated the defendant
    36  during the facility rehabilitation program shall provide the  sentencing
    37  court  with  a  written  report  or  reports  detailing  the defendant's
    38  progress or lack of progress in the program. If, in the opinion  of  the
    39  facility  health care providers, the defendant has evidenced a desire to
    40  overcome his or her addiction or  abuse  issues,  and  made  substantive
    41  progress toward doing so, the defendant shall receive credit toward time
    42  served for his or her time at the dedicated opioid rehabilitation facil-
    43  ity.  If,  in  the  opinion  of  the facility health care providers, the
    44  defendant has not evidenced a desire to overcome his or her addiction or
    45  abuse issues, or not made substantive  progress  toward  doing  so,  the
    46  defendant  shall  not  receive  credit toward time served for his or her
    47  time at the dedicated opioid rehabilitation facility.
    48    4. A defendant who is discharged from the facility pursuant  to  para-
    49  graph  (c)  of  subdivision one of this section shall be re-sentenced by
    50  the sentencing court, or by the nearest opioid court if such defendant's
    51  case has been transferred to the opioid court, to  serve  the  remaining
    52  balance  of such defendant's sentence at a correctional institution. The
    53  facility health care provider or providers  who  treated  the  defendant
    54  during  the facility rehabilitation program shall provide the court with
    55  a written report or reports detailing the defendant's progress  or  lack
    56  of  progress  in  the program. If, in the opinion of the facility health

        A. 5855                             9
 
     1  care providers, the defendant has not evidenced a desire to overcome his
     2  or her addiction or abuse issues, or made  substantive  progress  toward
     3  doing  so, the defendant shall not receive credit toward time served for
     4  his  or  her  time at the dedicated opioid rehabilitation facility. Such
     5  defendant shall not be eligible for diversion  to  any  other  rehabili-
     6  tation  program  in  lieu  of incarceration for a period of at least one
     7  year; provided, however, that nothing in this subdivision shall  prevent
     8  a  defendant from participating in a rehabilitation program while at the
     9  correctional institution.
    10    5. (a) A defendant who is discharged from a dedicated opioid rehabili-
    11  tation facility pursuant to paragraph (d) of  subdivision  one  of  this
    12  section shall be eligible to return to the opioid rehabilitation facili-
    13  ty  upon completion of any necessary medical or psychological treatment,
    14  if the defendant is medically and psychologically capable of  return  to
    15  the  facility  and  continued  participation in the facility's rehabili-
    16  tation program.  Such return to the facility, or alternative sentencing,
    17  shall be in the discretion of the court, or the nearest opioid court  if
    18  such defendant's case has been transferred to the opioid court.
    19    (b)  The  facility  health  care provider or providers who treated the
    20  defendant during the facility rehabilitation program shall  provide  the
    21  court  with  a  written  report  or  reports  detailing  the defendant's
    22  progress or lack of progress in the program prior to the  onset  of  the
    23  defendant's   inability  to  continue  in  the  facility  rehabilitation
    24  program.
    25    (i) If, in the opinion of the  facility  health  care  providers,  the
    26  defendant  has  evidenced  a  desire to overcome his or her addiction or
    27  abuse issues, or has made substantive  progress  toward  doing  so,  the
    28  defendant  shall  be allowed to return to the dedicated opioid rehabili-
    29  tation facility.
    30    (ii) If, in the opinion of the facility  health  care  providers,  the
    31  defendant has not evidenced a desire to overcome his or her addiction or
    32  abuse  issues  or has not made substantive progress toward doing so, the
    33  defendant shall not be allowed to return to the facility and  shall  not
    34  receive  credit  toward time served for his or her time at the dedicated
    35  opioid rehabilitation facility.
    36    (c) If during the period of the defendant's treatment for the  medical
    37  or  psychological  condition that gave rise to the inability to continue
    38  in the facility rehabilitation program, the provisions of paragraph  (a)
    39  or  (b)  of  subdivision  one  of  this section apply, the provisions of
    40  subdivisions two or three of  this  section,  as  applicable,  shall  be
    41  controlling.
    42    6.  A  defendant who is discharged from the facility pursuant to para-
    43  graph (e) of subdivision one of this section shall not  be  eligible  to
    44  return to the facility.
    45  §  23.09 Treatment following discharge from a dedicated opioid rehabili-
    46             tation facility.
    47    1. A defendant who is discharged from  a  dedicated  opioid  rehabili-
    48  tation  facility pursuant to paragraph (a) of subdivision one of section
    49  23.08 of this article shall be required by the  court  to  reside  at  a
    50  halfway  house  to  reintegrate the defendant into society for a minimum
    51  period of two months up to a maximum period of two years.
    52    2. A defendant who is discharged from  a  dedicated  opioid  rehabili-
    53  tation  facility pursuant to paragraph (b) of subdivision one of section
    54  23.08 of this article and subsequently sentenced to serve the  remaining
    55  balance  of  or a portion of such defendant's sentence at an alternative
    56  rehabilitation program shall be required by the court  to  reside  at  a

        A. 5855                            10

     1  halfway  house  to  reintegrate the defendant into society for a minimum
     2  period of two months up to a  maximum  period  of  two  years  following
     3  successful completion of the alternative rehabilitation program.
     4    3. In the discretion of the counselors at the halfway house, a defend-
     5  ant  may be required to attend one year of relapse prevention counseling
     6  subsequent to leaving the halfway house.
     7    4. (a) In the discretion of  the  sentencing  court,  or  the  nearest
     8  opioid court if such defendant's case has been transferred to the opioid
     9  court,  a  defendant who has been in compliance with the programs at the
    10  dedicated opioid rehabilitation facility program and the  halfway  house
    11  and  with  all  alternative rehabilitation and support programs shall be
    12  eligible for probation or other  disposition  of  his  or  her  case  in
    13  accordance  with  the provisions of subdivision ten of section 216.05 of
    14  the criminal procedure law. Time served in the dedicated opioid rehabil-
    15  itation facility program, the halfway house and other alternative  reha-
    16  bilitation  and  support  programs  shall  be  credited  toward the time
    17  remaining on the defendant's sentence.
    18    (b) If a defendant relapses into opioid addiction or  abuse  while  on
    19  probation,  the court may revoke the sentence of probation in accordance
    20  with article four hundred ten of the criminal  procedure  law.  In  such
    21  case,  the  defendant  will lose credit for time served in the dedicated
    22  opioid rehabilitation facility program, the halfway house and  with  all
    23  alternative rehabilitation and support programs.
    24    (c)  Notwithstanding  the provisions of paragraph (b) of this subdivi-
    25  sion, a defendant who has been discharged from the halfway house and  is
    26  on  probation  may  voluntarily  seek  additional  treatment through the
    27  court, including a return to the mandatory rehabilitation program or  an
    28  alternative rehabilitation or support program, or seek additional treat-
    29  ment  at  a  private or public facility, without loss of credit for time
    30  served in the dedicated  opioid  rehabilitation  facility  program,  the
    31  halfway  house  and  with  all  alternative  rehabilitation  and support
    32  programs.
    33  § 23.10 Court appearances.
    34    1. While residing at a dedicated  opioid  rehabilitation  facility,  a
    35  defendant  shall  attend  requisite  appearances  before  the sentencing
    36  court, provided such court is located within thirty miles of the facili-
    37  ty. Transportation to the court shall be provided by the  department  of
    38  corrections. With the permission of the`sentencing court, and in accord-
    39  ance  with  guidelines  promulgated  by  the  chief administrator of the
    40  court, the defendant may make an appearance at such hearing by electron-
    41  ic means in lieu of in-person attendance.
    42    2. If the sentencing drug court is located more than thirty miles from
    43  the dedicated opioid rehabilitation facility, the sentencing court shall
    44  transfer the defendant's case to the nearest opioid court, in accordance
    45  with guidelines promulgated by the chief administrator of the court.
    46  § 23.11 Records.
    47    1. After the admission of any defendant, the director of  a  dedicated
    48  opioid  rehabilitation facility shall, within five days excluding Sunday
    49  and holidays, forward to the office such information from the record  in
    50  such  time  and  manner as the commissioner shall require by regulation.
    51  Such information from the record in the office shall be accessible  only
    52  in the manner set forth in sections 33.13 and 33.16 of this chapter.
    53    2.  All  records  of  identity,  diagnosis, prognosis, or treatment in
    54  connection with a person's receipt of chemical dependence services shall
    55  be confidential and shall be released only in accordance with applicable

        A. 5855                            11
 
     1  provisions of the public health law, any other state  law,  federal  law
     2  and duly executed court orders.
     3  § 23.12 Limitations.
     4    1.  A  defendant  shall  not  be  eligible for referral to a dedicated
     5  opioid rehabilitation facility more than two times, regardless of wheth-
     6  er the defendant completes the program offered by the facility. Notwith-
     7  standing the foregoing, if a defendant is unable to complete the  course
     8  of  treatment  at  a  dedicated  opioid rehabilitation facility due to a
     9  medical or psychological condition or event clinically unrelated to  the
    10  defendant's opioid addiction, in the discretion of the sentencing court,
    11  or  the opioid court if the defendant's case has been transferred to the
    12  opioid court, the defendant shall be eligible to return to the dedicated
    13  opioid rehabilitation facility upon completion of any necessary  medical
    14  or  psychological  treatment,  in  accordance  with  subdivision five of
    15  section 23.08 of this article.
    16    2. Referral to a dedicated opioid rehabilitation facility  shall  only
    17  be  made  in  the  case  of  a  defendant  whose primary addiction is to
    18  opioids. A defendant who is not addicted to opioids does not qualify for
    19  referral to a dedicated opioid rehabilitation  facility,  regardless  of
    20  any other addictions or abuse issues the defendant has.
    21  § 23.13 Study.
    22    Five   years   after  the  dedicated  opioid  rehabilitation  facility
    23  commences operations, the commissioner shall provide the  governor,  the
    24  temporary  president  of the senate, the speaker of the assembly and the
    25  minority leaders of the senate and the assembly with a report evaluating
    26  whether the facility programs have resulted in a reduction of opioid use
    27  in the general population, the effect of  treatment  in  helping  reduce
    28  recidivism  and  whether  there  has  been  a  cost savings to the state
    29  through treatment through the facility in lieu of incarceration, togeth-
    30  er with such other matters as the commissioner deems relevant.
    31    § 4. The opening paragraph of subdivision (b) of section 33.08 of  the
    32  mental  hygiene  law,  as  added  by chapter 709 of the laws of 1986, is
    33  amended to read as follows:
    34    Any inpatient of a hospital operated by the office of mental health, a
    35  dedicated opioid rehabilitation facility or a state operated  alcoholism
    36  facility  shall  be  entitled  to  receive  a  monthly state payment for
    37  personal needs for each full calendar month commencing on or  after  the
    38  effective date of this section, in which the patient is in such hospital
    39  or alcoholism facility, if such patient also:
    40    §  5.  Subdivision  (f) of section 19.17 of the mental hygiene law, as
    41  amended by section 1 of part K of chapter 58 of the  laws  of  2009,  is
    42  amended to read as follows:
    43    (f)  There  shall  be in the office the facilities named below for the
    44  care, treatment and rehabilitation of  the  mentally  disabled  and  for
    45  clinical  research  and  teaching in the science and skills required for
    46  the care, treatment and rehabilitation of such mentally disabled.
    47    R.E. Blaisdell Addiction Treatment Center
    48    Bronx Addiction Treatment Center
    49    C.K. Post Addiction Treatment Center
    50    Creedmoor Addiction Treatment Center
    51    Dick Van Dyke Addiction Treatment Center
    52    Kingsboro Addiction Treatment Center
    53    McPike Addiction Treatment Center
    54    Richard C. Ward Addiction Treatment Center
    55    J.L. Norris Addiction Treatment Center
    56    South Beach Addiction Treatment Center

        A. 5855                            12
 
     1    St. Lawrence Addiction Treatment Center
     2    Stutzman Addiction Treatment Center
     3    A  dedicated  opioid  rehabilitation  facility established pursuant to
     4  article twenty-three of this title
     5    § 6. Subdivisions 4, 5, 6, 7 and 8 of section 216.05 of  the  criminal
     6  procedure law, subdivisions 4, 6 and 7 as added by section 4 of part AAA
     7  of  chapter  56 of the laws of 2009, subdivision 5 as amended by chapter
     8  67 of the laws of 2016 and subdivision 8 as amended by  chapter  315  of
     9  the laws of 2016, are amended to read as follows:
    10    4.  When  an authorized court determines, pursuant to paragraph (b) of
    11  subdivision three of this section, that an eligible defendant should  be
    12  offered  alcohol  or  substance abuse treatment, or when the parties and
    13  the court agree to an eligible defendant's participation in  alcohol  or
    14  substance  abuse  treatment,  an  eligible  defendant  may be allowed to
    15  participate in the judicial diversion program offered by  this  article.
    16  Prior  to  the court's issuing an order granting judicial diversion, the
    17  eligible defendant shall be required to enter a plea of  guilty  to  the
    18  charge  or charges; provided, however, that no such guilty plea shall be
    19  required when:
    20    (a) the people and the court consent to the entry  of  such  an  order
    21  without a plea of guilty; or
    22    (b)  based on a finding of exceptional circumstances, the court deter-
    23  mines that a plea of guilty shall not be required. For purposes of  this
    24  subdivision,  exceptional  circumstances  exist  when, regardless of the
    25  ultimate disposition of the case, the entry of a plea of guilty is like-
    26  ly to result in severe collateral consequences; or
    27    (c) the defendant is ordered to enter  a  dedicated  opioid  rehabili-
    28  tation  program  pursuant  to article twenty-three of the mental hygiene
    29  law.
    30    5. The defendant shall agree on the record or in writing to  abide  by
    31  the  release  conditions set by the court, which, shall include: partic-
    32  ipation in a specified period of alcohol or substance abuse treatment at
    33  a specified program or programs  identified  by  the  court,  which  may
    34  include  periods of detoxification, residential or outpatient treatment,
    35  or both, as determined after taking into account the views of the health
    36  care professional who conducted the alcohol and substance  abuse  evalu-
    37  ation  and  any health care professionals responsible for providing such
    38  treatment or monitoring the defendant's progress in such treatment;  and
    39  may  include: (i) periodic court appearances, which may include periodic
    40  urinalysis; (ii) a requirement that the defendant refrain from  engaging
    41  in criminal behaviors; (iii) if the defendant needs treatment for opioid
    42  abuse  or  dependence,  that  he  or  she may participate in and receive
    43  medically prescribed drug treatments under the care  of  a  health  care
    44  professional  licensed  or  certified under title eight of the education
    45  law, acting within his or her lawful scope of practice, provided that no
    46  court shall require the use of any  specified  type  or  brand  of  drug
    47  during the course of medically prescribed drug treatments; and (iv) if a
    48  defendant  in  a  case  brought  in  an opioid court needs treatment for
    49  opioid abuse or dependence, that he or she may be referred  to  a  dedi-
    50  cated  opioid  rehabilitation facility in accordance with the provisions
    51  of article twenty-three of the mental hygiene law.
    52    6. (a) Upon an eligible defendant's agreement to abide by  the  condi-
    53  tions set by the court, the court shall issue a securing order providing
    54  for bail or release on the defendant's own recognizance and conditioning
    55  any  release  upon  the agreed upon conditions. The period of alcohol or
    56  substance abuse treatment shall begin as specified by the court  and  as

        A. 5855                            13
 
     1  soon  as  practicable after the defendant's release, taking into account
     2  the availability of treatment, so as to  facilitate  early  intervention
     3  with respect to the defendant's abuse or condition and the effectiveness
     4  of  the  treatment program. In the event that a treatment program is not
     5  immediately available or becomes unavailable during the  course  of  the
     6  defendant's  participation  in the judicial diversion program, the court
     7  may release the defendant pursuant to the securing order.
     8    (b) Upon the agreement of an eligible defendant in a case  brought  in
     9  an  opioid  court to abide by the conditions set by the court, the court
    10  shall issue an order directing the commitment of  such  defendant  to  a
    11  dedicated   opioid   rehabilitation  facility  in  accordance  with  the
    12  provisions of article twenty-three of the mental hygiene law.
    13    7. (a) When participating in judicial diversion treatment pursuant  to
    14  this  article, any resident of this state who is covered under a private
    15  health insurance policy or contract issued for delivery  in  this  state
    16  pursuant to article thirty-two, forty-three or forty-seven of the insur-
    17  ance  law  or  article  forty-four  of  the public health law, or who is
    18  covered by a self-funded plan which provides coverage for the  diagnosis
    19  and  treatment of chemical abuse and chemical dependence however defined
    20  in such policy; shall first seek reimbursement  for  such  treatment  in
    21  accordance with the provisions of such policy or contract.
    22    (b)  In  the  case  of a defendant ordered to enter a dedicated opioid
    23  rehabilitation facility in accordance with  the  provisions  of  article
    24  twenty-three  of  the mental hygiene law, who is covered under a private
    25  health insurance policy or contract issued for delivery  in  this  state
    26  pursuant to article thirty-two, forty-three or forty-seven of the insur-
    27  ance  law  or  article  forty-four  of  the public health law, or who is
    28  covered by a self-funded plan which provides coverage for the  diagnosis
    29  and  treatment of chemical abuse and chemical dependence however defined
    30  in such policy, such defendant shall first seek reimbursement  for  such
    31  treatment  in  accordance with the provisions of such policy or contract
    32  at the time of admission to the dedicated opioid  rehabilitation  center
    33  and  again upon discharge from such facility and resumption of treatment
    34  through any alternative in-patient or outpatient program.
    35    8. During the period of a defendant's participation  in  the  judicial
    36  diversion program, the court shall retain jurisdiction of the defendant,
    37  provided,  however, that, unless the defendant has been ordered to enter
    38  a dedicated  opioid  rehabilitation  facility  in  accordance  with  the
    39  provisions  of article twenty-three of the mental hygiene law, the court
    40  may allow such defendant to (i) reside in another jurisdiction, or  (ii)
    41  participate  in alcohol and substance abuse treatment and other programs
    42  in the jurisdiction where the defendant resides or in any  other  juris-
    43  diction,  while  participating  in  a  judicial  diversion program under
    44  conditions set by the court and agreed to by the defendant  pursuant  to
    45  subdivisions  five  and  six  of this section. The court may require the
    46  defendant to appear in court at any time to enable the court to  monitor
    47  the  defendant's  progress  in alcohol or substance abuse treatment. The
    48  court shall provide notice, reasonable under the circumstances,  to  the
    49  people,  the treatment provider, the defendant and the defendant's coun-
    50  sel whenever it orders or  otherwise  requires  the  appearance  of  the
    51  defendant  in  court.  Failure  to appear as required without reasonable
    52  cause therefor shall constitute a violation of  the  conditions  of  the
    53  court's agreement with the defendant.
    54    § 7. Section 5 of the correction law is amended by adding a new subdi-
    55  vision 7 to read as follows:

        A. 5855                            14
 
     1    7.  The  commissioner shall consult with the commissioner of addiction
     2  services and supports with respect to establishing  a  dedicated  opioid
     3  rehabilitation  facility for the purpose of providing long-term residen-
     4  tial treatment of defendants referred to such facility from the  Buffalo
     5  Opioid  Intervention  Court  and the Bronx Opioid Avoidance and Recovery
     6  Court, as provided in article twenty-three of the  mental  hygiene  law,
     7  and  shall  enter  into  agreements  with  the commissioner of addiction
     8  services and supports for the provision of  security  services  at  such
     9  facility or facilities.
    10    §  8.  This  act shall take effect on January 1, 2022. Effective imme-
    11  diately, the addition, amendment, and/or repeal of  any  rule  or  regu-
    12  lation  necessary  for  the  implementation of this act on its effective
    13  date are authorized to be made on or before such effective date.
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