Section 509. Transfers to state hospitals and schools in the department of mental hygiene

1. (a) The director of the division for youth may  apply
  for  the  transfer  of  any  child  in  the  care of the division to the
  department of mental hygiene for care and treatment in a state  hospital
  or  school under the jurisdiction of said department whenever it appears
  to the satisfaction of the director of the division:
    (i) that such child is mentally ill  or  mentally  retarded  and  will
  substantially  benefit from care and treatment in such a state school or
  hospital; and
    (ii) that the interests of the state will be best served thereby.
    (b) The office of mental retardation  and  developmental  disabilities
  may  receive,  treat  and  otherwise  care  for such a child pursuant to
  article nine or fifteen of  the  mental  hygiene  law  if  suitable  for
  admission thereunder.
    2.  (a)  Except  in  the  case  of  an  emergency  requiring immediate
  admission to a state hospital pursuant to  the  mental  hygiene  law,  a
  child in the care of the division may be transferred:
    (i)   after  notice  thereof  has  been  given  to  the  child  to  be
  transferred, his parents or legal guardian, and his attorney of  record,
  if any; and
    (ii)  after  he  has  been  afforded  an  opportunity to be heard with
  respect thereto at a hearing conducted by an impartial  hearing  officer
  and  to be represented at such hearing by counsel. If in the judgment of
  the division such child is financially unable  to  obtain  counsel,  the
  division  shall  pay such counsel's fees as shall be necessary to assure
  adequate representation for such child.
    (b) The hearing officer may accept the written waiver by  a  child  of
  his  right  to  a  hearing, provided the child knowingly and voluntarily
  executed such waiver with the advice of counsel.
    3. A child transferred pursuant to this section:
    (a) shall continue to be under the general care and supervision of the
  division for youth except that he shall be  temporarily  cared  for  and
  treated by the institution to which the transfer is made.
    (b)  shall  be  subject  to  the  laws  and  rules  pertaining  to the
  institution to which he is admitted; and
    (c) shall be entitled to the same  rights  and  procedures  under  the
  mental  hygiene  law as any other person admitted or converted in status
  thereunder.
    4. Whenever the commissioner of mental health or  the  director  of  a
  residential   treatment   facility   for  children  and  youth,  or  the
  commissioner of mental retardation and developmental disabilities  finds
  that  care and treatment of a child transferred pursuant to this section
  or section 353.4 of the family court act is no longer suitable under the
  mental hygiene law, he shall forthwith  so  certify  and  discharge  the
  child  to  the  custody  of  the  child  himself, his parents, his legal
  guardian, his local department of social services or  the  division  for
  youth,  as appropriate, except that so long as there is a valid order of
  the family court placing the child with the division  for  youth,  or  a
  valid  order  of a criminal court sentencing a child to the division for
  youth, the child shall be returned  to  the  care  and  custody  of  the
  division. The duration of the placement or sentence with the division of
  a  child  transferred  pursuant to this section shall not be extended or
  increased by reason of any such transfer.
    5. All expenses incident to a transfer under  this  section  shall  be
  borne  by  the division, subject to the provisions of title four of this
  article. All expenses for the care and treatment of a child  transferred
  to  the  department  of mental hygiene pursuant to this section shall be
  borne by the department of mental hygiene.

    6. An application by the director for admission of a child to a  state
  hospital  shall  be considered an application for voluntary admission in
  accordance with section 9.13 of the mental hygiene law if such child  is
  under  the  age  of  sixteen  or if the child is sixteen years of age or
  older  and  has  waived  his  right  to  a  hearing  in  accordance with
  subdivision two of this section. An  application  by  the  director  for
  admission  to  a state hospital of a child sixteen years of age or older
  who has not knowingly and voluntarily consented to such  application  in
  accordance  with  paragraph (b) of subdivision two of this section shall
  be considered an application for  involuntary  admission  in  accordance
  with section 9.27 of the mental hygiene law.
    7. The director may, following the procedures outlined in this section
  and  subject  to  the requirements of section 9.51 of the mental hygiene
  law, apply for the transfer of any child in the care of the division who
  has not been sentenced as a juvenile offender pursuant to section  70.05
  of  the  penal  law,  and  who is not subject to a restrictive placement
  pursuant to section 353.5 of the family  court  act,  to  a  residential
  treatment facility for children and youth.
    8.  Notwithstanding  any  other  provision  of  law  to  the contrary,
  juvenile offenders shall be transferred only to  a  facility  under  the
  jurisdiction  of  the office of mental health specially designed for the
  care and treatment of  juvenile  offenders  which  is  characterized  by
  physically restricting construction, hardware and procedures.