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After Subway Shoving, Officials Look to Expand State Laws on Mandatory Treatment for Mental Illness

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Subway outreach (photo: Michael Appleton/Mayoral Photography Office)

In January 1999, Kendra Webdale, a 32-year-old writer, was pushed to her death into the path of an oncoming N train by a schizophrenic man. Webdale’s death prompted the passage of the eponymously named Kendra’s Law, which allows courts to order a person to receive supervised mental health treatment, also known as assisted outpatient treatment, failing which they can be temporarily committed to a hospital.

Twenty-three years later, the killing of 40-year-old Michelle Go in eerily similar circumstances is now prompting calls from elected officials to strengthen the law.

Go was fatally struck by an A train after being shoved onto the tracks at the Times Square subway station by Martial Simon, 61, who has a long history of dealing with schizophrenia. Doctors attempted in 2009 to require Simon to participate in assisted outpatient treatment, The New York Times reported.

In the weeks since Go’s death, Governor Kathy Hochul has proposed an extension and expansion of Kendra’s Law in her executive budget proposal. New York City Mayor Eric Adams has similarly advocated for strengthening it and called on judges to utilize it more often, though that typically relies on them being petitioned by an eligible stakeholder.

Many experts, advocates and elected officials say a stronger implementation of Kendra’s Law must also be accompanied by greater resources for inpatient treatment, a reinvestment in mental health beds, and, chiefly, an expansion of the mental health statute that determines whether a person suffering from mental illness is a danger to themselves and requires more intensive treatment. There are, however, some experts who disagree with one or more of those proposals, arguing that what is really needed is more investment in community-based services and solutions.

Currently under Kendra’s Law, individuals are required to participate in Assisted Outpatient Treatment if they are deemed to be unable to survive in the community without supervision. There are several criteria that the patient must meet including a history of not complying with required treatment leading to hospitalization at least twice in the previous 36 months and serious violent behavior or physical harm towards themselves or others, among other guidelines.

In such cases, a petitioner – a roommate, adult family member, hospital official, mental health profession, parole or probation officer – can approach the courts to require the individual to participate in an Assisted Outpatient Treatment program. Once ordered into AOT under Kendra’s Law, if a physician determines that an individual either has failed to comply or refused to participate in treatment and may need to be involuntarily admitted, they can be held in a hospital for 72 hours for observation and treatment. If they are stabilized, the patient is then released back into AOT.

Studies have found that the application of Kendra’s Law is successful in driving down deaths, suicides, homelessness, incarceration, and repeated hospitalizations of those suffering with severe mental illness, the most common forms of which are schizophrenia and severe bipolar disorder. AOT programs aim to ensure that patients receive the medication they require, retain access to it, and continue to take it as prescribed, among other services.

“All these preventable negative outcomes that we're working to address, Kendra's law has addressed,” said Matthew Shapiro, associate director of public affairs at the New York chapter of the National Alliance on Mental Illness. According to the latest state data from 2019, of the 832,509 patients treated in the state mental health system run by the Office of Mental Health, 125,031 were diagnosed with schizophrenia. As mental health experts often point out, even people with serious mental illnesses are rarely ever violent, and data shows they are more often victims of violence themselves.   

But concerns have still been raised that there is insufficient funding for the treatment programs and that the law is not used as often as it should be — as of February 11, there were 1,475 people in New York City under active court orders to receive AOT. It is unclear what the potential total population eligible for and in need of such programming might be. Some critics also say that Kendra’s Law tends to be disproportionately applied to people of color, which speaks to other systemic issues including racism and unequal access to mental health services, housing, and more.

State Senator Diane Savino, a Democrat whose district spans parts of Staten Island and South Brooklyn, is preparing to introduce legislation to expand the scope of Kendra’s Law. Most significantly, Savino wants the law to allow longer hospital stays for people who fail to follow their treatment and require involuntary, temporary commitment to a hospital.

“People need more intensive treatment, not permanently,” she said. “But no one's restored to sanity in 72 hours.” For instance, Savino and others have pointed to homeless people with mental illness who may be released after such an involuntary hold but are at severe risk of cycling through the system again without the necessary support they need.

Assisted outpatient treatment in such cases is “sorely lacking,” Savino said in a phone interview. “We're forcing people back into the street and quite honestly, it's cruel. Cruel and inhuman.”

Kendra’s Law “is usually imposed when a person is coming out of the hospital, that is when they are stable, and is designed to help them from falling back into that situation,” said Brian Stettin, policy director of Treatment Advocacy Center, who drafted Kendra’s Law as a former New York State assistant attorney general.

AOT entails a community-based treatment program, ideally involving close coordination between treatment providers and the courts and constant evaluation to monitor a patient’s progress. Court orders are issued for one year and can be subsequently renewed for up to one year. The programs are overseen by program coordinators at the county level.

Stettin has called for state and city officials to reexamine how and when Kendra’s Law is applied. Martial Simon, for instance, clearly met the standard for supervised treatment under the law, they say. “So many of the recent tragedies have involved folks who clearly met the criteria for AOT because they had had those recent contacts with the system and were not adhering to their prescribed treatment, but somehow were not in the program,” said Stettin.

Since Kendra’s Law went into effect in 1999, county AOT coordinators have conducted 45,281 total investigations of an individual’s eligibility for treatment, including 22,106 in New York City, according to the latest data updated December 15 by the state Office of Mental Health.

In that same time, 31,344 petitions were filed with courts and 29,914 or 95% were granted. That includes 19,470 filed in the city and 18,655 or 96% granted.

In New York City, in the last 12 months between February 8, 2021 to February 7, 2022, 837 such petitions were filed and 735, or 88%, granted. As of February 8, there were 3,425 people under active court orders to receive treatment, including 1,474 in the city.

Not everyone agrees with Kendra’s law. Harvey Rosenthal, CEO of the New York Association of Psychiatric Rehabilitation Services, said in a recent appearance on Gotham Gazette’s Max Politics podcast that his organization has opposed the law since its inception. “We oppose it because we shouldn't have to rely on the courts and the cops to provide people with the care that they need and even people who are seen as non-responsive to care.”

“Coercion is really not the answer to this, but the quick formulation is: violent, mentally ill in the subway, we've got to round them up, force them into treatment, and get them off the street,” he added. Rosenthal did acknowledge that in certain situations in the here and now, it may be applicable and necessary, but that it signals larger failures every time it is used.

Shapiro from NAMY-NYS said that is a common misconception about Kendra’s Law. “It isn't forced treatment…because when someone says something is forced, it makes it sound like there's a punitive outcome if they don't comply. And that's not the case with Kendra’s Law,” he said. “It's not designed to punish people or force people. It's really designed to help people, and it has provided that help for countless New Yorkers.”

Kendra’s Law is only part of the equation for the state’s mental health crisis, according to Senator Savino, who is also focused on expanding the standard for involuntary inpatient treatment of individuals with severe mental illness, committing them to dedicated care in a hospital setting.

“If we simply just look at expanding access to outpatient treatment, we lose the bigger fight,” she said. “When Kendra’s Law works, it works, but it requires a patient who has enough self-awareness to participate.”

Under existing mental hygiene law, a person can be involuntarily committed if their illness prevents them from understanding that they need care and if they pose a substantial threat of harm to themselves and others. But in New York State, the assessment of whether a person is a danger to themselves is currently limited, for instance, to when a person is suicidal or otherwise endangering themselves.

“That’s the flaw in mental health law,” Savino said. She wants to enshrine into the law a broader standard that is followed by most other states, that a person can be considered a danger to themselves if their mental illness makes them unable to meet basic needs such as food, shelter, clothing, or health care.

“Her bill does something very important, which is to make it clear that there are multiple ways for a person to be dangerous to themselves,” said Stettin. “To add language to New York law that explicitly recognizes that a person is a danger to themselves if they cannot meet their basic survival needs would be game-changing, bringing New York law into line with just about every other state.”

State Senator George Borrello, a Republican from Western New York, personally knew Kendra Webdale and went to high school with her in their shared hometown of Fredonia. For him, Go’s death in January was a stark reminder of the incident and added urgency to his efforts to strengthen the mental health system. “I just don't want to ever see this happen again,” he said. “I know what the Webdale family went through and I can't imagine what Michelle Go’s family’s going through.”

Last year, Borrello, along with then-Governor Andrew Cuomo, had sought to do what Savino is attempting this year, expanding both Kendra’s Law and the standard for inpatient treatment. But Borrello’s and Cuomo’s proposals failed in the face of opposition from Assembly Democrats who feared that the expansion could infringe on individual civil liberties. “When I spoke on the floor last year on this, I said that we are probably going to see more tragedies as a result of not strengthening Kendra's Law and here we are a year later... So this is absolutely a must this time around,” he said.

Borrello said he also supports Savino’s proposal to increase the period of mandatory commitment for someone who fails to comply with treatment under Kendra’s Law. “There is no easy fix to any of this. There's no magic pill that you can take,” he said. “Even folks that are successful, there's often long periods of time of having to adjust medications…and that cannot be done in the 72-hour period.”

Stephen Eide, a senior fellow at the Manhattan Institute who researches and writes on these issues, echoed what activists and elected officials have said, that Kendra’s Law is successful but isn’t being used where necessary. “I think basically what you're talking about is finding more people who are out there in the community who would benefit from the program, who are not currently in it,” he said.

He pointed out that the law is usually invoked for people leaving hospitals. “Maybe there are people who are in the jail system or in the shelters who would also benefit from Kendra’s Law, but we're not doing any sort of outreach or inreach to those systems to identify people who would benefit from it,” he said.

There are practical challenges to implementing Savino’s proposals. Systematic deinstitutionalization – shifting from inpatient to outpatient treatment – in New York State has meant the loss of hundreds of mental health hospital beds over several decades. A 2019 white paper from the New York State Nurses Association estimated that the number of certified inpatient psychiatric beds fell from 6,055 in 2000 to 5,419 in 2018, a 12% decrease (on top of more drastic drops in prior years). New York City accounted for 72% of the decline, about 459 beds. Low reimbursement rates for mental health service-providers under the state’s Medicaid program have also disincentivized those services, Savino said.

Savino also wants more family involvement in the application of Kendra’s Law. “We want to take the confrontation with the police out of the situation, because all too often people encounter the mental health system through the court system, through the criminal justice system,” she said. “Again, it’s cruel and inhuman.”

“We know this isn't working,” Savino said. “So we need the ability to petition the court directly. We need the potential to have an involuntary commitment for a longer period of time. We need more mental health beds. And we need family involvement.”

Savino could not say how much more funding would be required to implement her provisions. But she said it is necessary. When Mayor Adams, a close ally of Savino, testified before the State Legislature on February 9, one of his headline asks from the upcoming state budget, due by April 1, was funding for more mental health beds and services.

Savino has also called for more supportive housing to accompany the measure. “It won't be cheap, but the alternative is worse,” she said. “It's either we're shifting the burden of mental health services to the criminal justice system or to the shelter system, and circling around and around, and then there's a concomitant cost to other people who may be victimized by someone who's suffering a mental health crisis. So investing the money where it should properly be spent makes the most sense.”

Stettin said the fiscal impact could be limited. In other states with the broader standard for inpatient treatment, hospitalizations don’t rise dramatically, he said. “​​It allows the same people who are going to wind up in the hospital or in jail eventually anyway, to get hospitalized when they're less acutely ill,” he said. “I think it’ll have a positive fiscal impact because people will need less time in the hospital to become stable and it’s also helping people avoid the criminal justice system.”

Both Governor Hochul and Mayor Adams have spoken in favor of broadening Kendra’s Law.

“Governor Hochul has made the development of a comprehensive behavioral health crisis system in New York State one of her administration's key priorities, and she proposed not only extending Kendra’s Law by five years but expanding and strengthening the law. We will work with the legislature this session on how best to keep New Yorkers safe,” said Hazel Crampton-Hays, a Hochul spokesperson, in an email.

Hochul’s executive budget proposal includes an extension of the current Kendra’s Law till 2027 (it has been repeatedly extended since it was first passed and is due to expire on June 30, 2022) and changes to the legislation that include additional criteria for eligibility under Kendra’s Law. The proposal would make an individual eligible if a previous outpatient treatment court order has expired in the previous six months and if they have experienced a “substantial increase in symptoms of mental illness,” according to the Governor’s office.

In a press briefing the day that Go was killed, Adams called for greater judicial intervention to help the city aid severely mentally ill New Yorkers. “We need help from the outside as well. There is a law called Kendra’s Law. Far too often, judges are reluctant to institute that law,” he said, though the data undercuts his statement. It was an echo of his remarks from May 2021 (and other times on the campaign trail), when he called for strengthening the law after a spate of violent incidents on the subway system that involved people with mental illness. 

On February 17, Adams reiterated his call for expanding Kendra's law in the wake of the murder of a 35-year-old woman in Chinatown this week by a man who was out on supervised release after being arrested and charged with other crimes. Questions have been raised about whether the man, 25-year-old Assamad Nash, should have been treated for possible mental illness. "We need to really reexamine how we are dealing with individuals who are showing imminent danger to themselves and others," Adams said Thursday. "That is what I'm asking my team to look at, and to speak with Albany so that we can ensure that in areas where we must compel people to get the necessary care, that we're able to do so."

The State Legislature has also sought to make Kendra’s Law permanent. The State Senate passed a measure to do so in 2018 but it wasn’t taken up by the Assembly.

[Listen: Max Politics Podcast: Addressing the Crisis of Untreated Severe Mental Illness (Part 1)]

by Samar Khurshid, senior reporter, Gotham Gazette

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