§ 509 — Transfers to state hospitals and schools in the department of mental hygiene

§ 509. Transfers to state hospitals and schools in the department of\nmental hygiene. 1. (a) The director of the division for youth may apply\nfor the transfer of any child in the care of the division to the\ndepartment of mental hygiene for care and treatment in a state hospital\nor school under the jurisdiction of said department whenever it appears\nto the satisfaction of the director of the division:\n (i) that such child is living with mental illness or a developmental\ndisability and will substantially benefit from care and treatment in\nsuch a state school or hospital; and\n (ii) that the interests of the state will be best served thereby.\n (b) The office for people with developmental disabilities may receive,\ntreat and otherwise care for such a child pursuant to article nine or\nfifteen of the mental hygiene law if suitable for admission thereunder.\n 2. (a) Except in the case of an emergency requiring immediate\nadmission to a state hospital pursuant to the mental hygiene law, a\nchild in the care of the division may be transferred:\n (i) after notice thereof has been given to the child to be\ntransferred, his parents or legal guardian, and his attorney of record,\nif any; and\n (ii) after he has been afforded an opportunity to be heard with\nrespect thereto at a hearing conducted by an impartial hearing officer\nand to be represented at such hearing by counsel. If in the judgment of\nthe division such child is financially unable to obtain counsel, the\ndivision shall pay such counsel's fees as shall be necessary to assure\nadequate representation for such child.\n (b) The hearing officer may accept the written waiver by a child of\nhis right to a hearing, provided the child knowingly and voluntarily\nexecuted such waiver with the advice of counsel.\n 3. A child transferred pursuant to this section:\n (a) shall continue to be under the general care and supervision of the\ndivision for youth except that he shall be temporarily cared for and\ntreated by the institution to which the transfer is made.\n (b) shall be subject to the laws and rules pertaining to the\ninstitution to which he is admitted; and\n (c) shall be entitled to the same rights and procedures under the\nmental hygiene law as any other person admitted or converted in status\nthereunder.\n 4. Whenever the commissioner of mental health or the director of a\nresidential treatment facility for children and youth, or the\ncommissioner of developmental disabilities finds that care and treatment\nof a child transferred pursuant to this section or section 353.4 of the\nfamily court act is no longer suitable under the mental hygiene law, he\nor she shall forthwith so certify and discharge the child to the custody\nof the child himself or herself, his or her parents, his or her legal\nguardian, the local department of social services or the office of\nchildren and family services, as appropriate, except that so long as\nthere is a valid order of the family court placing the child with the\noffice of children and family services, or a valid order of a criminal\ncourt sentencing a child to the office of children and family services,\nthe child shall be returned to the care and custody of the office of\nchildren and family services. The duration of the placement or sentence\nwith the such office of a child transferred pursuant to this section\nshall not be extended or increased by reason of any such transfer.\n 5. All expenses incident to a transfer under this section shall be\nborne by the division, subject to the provisions of title four of this\narticle. All expenses for the care and treatment of a child transferred\nto the department of mental hygiene pursuant to this section shall be\nborne by the department of mental hygiene.\n 6. An application by the director for admission of a child to a state\nhospital shall be considered an application for voluntary admission in\naccordance with section 9.13 of the mental hygiene law if such child is\nunder the age of sixteen or if the child is sixteen years of age or\nolder and has waived his right to a hearing in accordance with\nsubdivision two of this section. An application by the director for\nadmission to a state hospital of a child sixteen years of age or older\nwho has not knowingly and voluntarily consented to such application in\naccordance with paragraph (b) of subdivision two of this section shall\nbe considered an application for involuntary admission in accordance\nwith section 9.27 of the mental hygiene law.\n 7. The director may, following the procedures outlined in this section\nand subject to the requirements of section 9.51 of the mental hygiene\nlaw, apply for the transfer of any child in the care of the division who\nhas not been sentenced as a juvenile offender pursuant to section 70.05\nof the penal law, and who is not subject to a restrictive placement\npursuant to section 353.5 of the family court act, to a residential\ntreatment facility for children and youth.\n 8. Notwithstanding any other provision of law to the contrary,\njuvenile offenders shall be transferred only to a facility under the\njurisdiction of the office of mental health specially designed for the\ncare and treatment of juvenile offenders which is characterized by\nphysically restricting construction, hardware and procedures.\n