Legislature(2003 - 2004)
05/06/2004 03:20 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
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HB 535 - LIMIT STATE AID FOR MENTAL HEALTH CARE Number 0092 CHAIR McGUIRE announced that the first order of business would be HOUSE BILL NO. 535, "An Act relating to liability for expenses of placement in certain mental health facilities; relating to the mental health treatment assistance program; and providing for an effective date." [Before the committee was CSHB 535(HES).] Number 0146 BILL HOGAN, Director, Central Office, Division of Behavioral Health (DBH), Department of Health and Social Services (DHSS), introduced himself. REPRESENTATIVE GRUENBERG mentioned that he'd met with the interested parties in order to try to reach an accommodation regarding the issues raised at the bill's last hearing, but did not succeed. He elaborated: It seemed to me, ... as an observer, that the main question in the bill was on Section 2 and some question on Section 8, and the consumers ... really didn't like Section 2 in the bill and they objected to it. And we got talking a bit about the sentence on page 2, lines 17 and 18, ... that reads, "Nothing in this chapter creates an entitlement to financial assistance under this chapter", and their feeling was that that ... conflicts with the language at the top of page 3, line 1, [that] says ... the department shall provide financial assistance. But I'm not totally sure that that's totally correct, and Mr. [Hogan] can give us the opposing view. ... We couldn't come to a meeting of the minds on anything, and I felt my role at that time ... was just to simply see if we could reach an accommodation on anything, and we couldn't. Number 0302 MR. HOGAN offered the following: This is a bill related to Designated Evaluation & Treatment services, or DET. We are asking [for] the support of the legislature, for the bill, to ensure that people still receive services through this particular mechanism but only up to the dollars that are allocated by the legislature for this service. ... Designated Evaluation & Treatment services are provided to individuals who are involuntarily committed because of a danger to themselves or others. We have [a] number of hospitals where we have one or two beds that provide this service, and our primary providers are at Bartlett [Regional Hospital], here in Juneau, and Fairbanks Memorial [Hospital/Denali Center]. The concept behind Designated Evaluation & Treatment is to stabilize individuals in their home community, as close to home as possible, particularly those who meet the criteria for involuntary commitment. Over the last two years, from [fiscal year (FY) 01 through FY 03], the cost for this service has increased 100 percent. Part of that has to do with increased utilization, part of it has to do with the increased rate that hospitals receive for the service. What we are proposing in this bill is a management mechanism so that we would have a better capability or better capacity to manage this particular program. The core requirement is that the hospital would notify us within 24 hours of admission of someone who would qualify or might qualify for this service. Currently, they don't have to let us know until six months after the fact; we frequently get bills several months after the ... hospitalization has ended, and, for the most part, we are obligated to pay that bill. This [legislation] gives us increased management capability ... to be better able to control costs. We also feel like we need the statutory authority to fund DET services up to the appropriation. What this does, more than anything else, is it puts in place a plan if and when we run out of services [funding] to ensure that that person still receives service in a safe environment. We have support from the Alaska State Hospital & Nursing Home Association [ASHNHA]. The one sticking point, or rub point if I can use that term, in the bill is Section 2, and it is around that language that says that the service will only be provided up to the appropriation and that the service is no longer considered an entitlement. Number 0462 MR. HOGAN concluded: I appreciate Representative Gruenberg's efforts at trying to work out some sort of compromise or ... some sort of middle ground on this, but the commissioner feels strongly that this language needs to remain in the bill, and the [Alaska Mental Health Trust Authority (AMHTA)] and the [Alaska Mental Health Board (AMHB)] particularly [feel], though, [that] the language should be removed. This is the point of disagreement, unfortunately; we have been working for the past two months or more to come up with appropriate language that everyone could agree on, but unfortunately we were not able to reach total agreement. I would be more than willing to answer any question that the committee might have. REPRESENTATIVE GARA asked whether current law provides patients with rights that would maintain their eligibility for private care. MR. HOGAN replied: This service is designed specifically for individuals who have no resources. So if somebody has Medicaid or they have a private third party, then ... the service is reimbursed through that mechanism. If the person has no other funding source, then the state has paid, primarily using general fund [GF] dollars, for the service. There is an enrollment system that's involved, where the individual does actually have to apply for the service, but usually the individual facility or hospital does that on behalf of the individual. REPRESENTATIVE GARA asked how passage of the bill with Sections 2 and 8 intact will change a person's right to continued private care once the money runs out. What happens now when the money runs out? Number 0689 MR. HOGAN responded: We, fortunately, have not gotten into a situation where we have run out of money for this service. But our budget for FY 05 is about a million dollars less than what we have available in FY 04. The person would still receive care, but the person would have to go to the Alaska Psychiatric Institute, or [the] API, in Anchorage. We anticipate having enough dollars to get us through, I would say, February of the next fiscal year - it's about seven or eight months. We have pledged, through the letter of intent that is attached to the bill, to look at all other funding sources. One of those options would be Disproportionate Share Hospital, or DSH, dollars; ... these are federal dollars, and some of those dollars are currently going to these facilities. ... The department did get an increase in DSH dollars as a result of the Medicare drug prescription bill, and we do ... anticipate being able to use some of that increase to help pay for this service. But in spite of that, we feel we need the bill because we still may not have enough money to pay for the service. REPRESENTATIVE GRUENBERG referred to the aforementioned letter of intent, and said: It seems to me, although you may not be able to predict totally, it ought to be not impossible for you to predict somewhat in advance whether you're going to run out of money. ... And I'm looking at the second part of this letter of intent, which says, "that in the event of a shortfall in appropriations", the DHSS "shall make every effort to identify additional financing sources or reallocate appropriations available for the purpose from lesser priorities to continue these important services for the remainder of the fiscal year". At the very least, I would like to put something, directory language, like that in the bill itself, so it's not just an obscure letter of intent but we have something to that effect in the bill itself that you shall do that. ... Basically [language along the lines of]: "you shall make every effort to identify additional financing sources or reallocate appropriations available for the purpose from other priorities to continue the services in advance". If we adopted a conceptual amendment like that, would you have heartburn? ... REPRESENTATIVE GRUENBERG added: And the second thing [is], ... whether we could put something in there that could maybe give you some access to Mental Health Trust [Authority] money for that, so that ... we wouldn't have a crises but if that happened, that we'd have the money there, at least on an interim basis, to continue the services. Could you ... check on the answers to those two [questions]? ... CHAIR McGUIRE noted that HB 535 has been referred to the House Finance Committee, which would analyze the financial issues raised by the bill. REPRESENTATIVE OGG characterized inserting such language in the bill as akin to micromanaging the [DHSS], and opined that [the DHSS] is perfectly capable of looking for funds on its own and so such language would be unnecessary. MR. HOGAN remarked that although there has been some Mental Health Trust Authority [MHTA] money supporting this particular service, those dollars stop being available at the end of the current fiscal year, and this is one of the reasons the DBH has such a large deficit. Number 0988 DAN BRANCH, Senior Assistant Attorney General, Human Services Section, Civil Division (Juneau), Department of Law (DOL), said it would be highly unusual and inappropriate to add that type of restriction on the executive branch in a bill such as HB 535; that's why the language is used in the letter of intent instead. REPRESENTATIVE GRUENBERG asked why they shouldn't include such language in the bill itself, since the purpose of many pieces of legislation is to set priorities for the executive branch and provide it with legislative direction. Why is this bill any different? MR. BRANCH replied, "I think it crosses into the area of separation of powers." Number 1081 ROD L. BETIT, President/Chief Executive Officer (CEO), Alaska State Hospital & Nursing Home Association (ASHNHA), expressed the ASHNHA's support for HB 535. He went on to say: We worked hard to get to where we are with it. The original form, we were not happy with, but some accommodations have been made to take out some language and to make some clarifications. I think it's pretty clear that this program is going to be short of money, to the tune of around a million dollars by my calculations, which is about a third of their funding. If it's not made up with the management provisions that are in the bill to look at the patient care, there's going to be a real shortfall. And what I think Section 2 does - and others have heartburn with it but in my opinion it is better to have Section 2 in the bill - ... [is it says], in the event of a shortfall, the commissioner will take the following action, which I think he has the authority to do anyway and the responsibility to do to balance his budget, and then further sets out that if that occurs, that community hospitals, who will have these patients because they'll be involuntarily admitted there in the beginning during the evaluation phase, will have the department work with them to, as quick as they can and as soon as is medically safe, ... move those patients to [the] API, which is what this is all about - that they will get care, they won't get it in their community hospital if it's otherwise available, but be transferred to [the] API where that care will be given, and it will be good care. And I think it's preferable to having a vacuum there in terms of what will happen if this should occur. Now, the commissioner has said he'll look for other money - he won't go for a supplemental. If, in fact, they run out as early as February or March, I think there'll be huge pressure on the commissioner to find other money or to come back to you and ask for a supplemental because I think this will be an untenable situation to continue indefinitely like this. So I think it creates the perfect box to put the commissioner in: it says that he's not going for a supplemental; that he's committed to making sure these patients get care at [the] API; ... that the unfunded mandate on communities is not allowed to grow and grow; and that if that doesn't work, he'll come back with some other solution. MR. BETIT concluded: So, again, we support the bill, we think it's reached a compromise that we can live with. Some have characterized it that the hospitals are not getting hurt by this, that's not at all true, there will still be days provided for free under this scenario, but it won't go on indefinitely. I'd be happy to answer any questions. REPRESENTATIVE GARA asked whether the program only covers involuntarily committed patients. MR. BETIT said that is his understanding. Number 1215 RICHARD RAINERY, Executive Director, Alaska Mental Health Board (AMHB), indicated that he would be attempting to provide the committee with the consumer's point of view. He offered the following comments: I want to give you a very brief history lesson. The Alaska Mental Health Board was founded in 1987; virtually from the day the board came into existence, one of its primary goals was downsizing [the] API and shifting the focus of mental health care in Alaska to local options - least restrictive is the philosophy. One of those local options is Designated Evaluation & Treatment; the sole purpose of that service is to divert people from going to [the] API, which was the only option prior to the institution of those services. So it's a philosophical issue for us; we believe that these services should be provided locally, that folks have a right to [a least] restrictive level of care close to their families, close to their support networks. And I want to remind you that these are folks who are involuntarily committed - they don't have an option. If they don't get into a local hospital, they are going to [the] API. MR. RAINERY concluded: So we do have a difference with the Section 2 language, we prefer the language that's in the letter of intent. And the last thing I want to mention is that ... this change is coming up when [the] API is being downsized - it's going to be a smaller institution with less capacity to handle additional patients. It's also going to be a therapeutically different institution; it's not going to be as simple to go over census as it is in the current hospital. There won't be room, and the therapeutic milieu is quite different than the one you see at [the] API today. ... I would be happy to answer any questions. CHAIR McGUIRE said that although she agrees with Mr. Rainery philosophically, the state no longer has the money to provide local care in private facilities to those who are involuntarily committed. "If you have any thoughts about how these community hospitals are going to absorb these high costs on top of all the other things that they're absorbing, I'd be interested in hearing [them]," she remarked. Number 1387 MR. RAINERY responded: First off, this program has, historically, a number of times, exceeded the original appropriation, and the department has always found a way to make sure that services were given to these folks. And that's the rub there, because by keeping Section 2 in there, we're absolving them from that responsibility, although I certainly believe that they've offered the letter of intent in good faith and intend to do that, but we all know that a letter of intent is not binding on anybody, particularly ... if administrations change at some point in the future. The answer to how the community hospitals absorb this is the section that was added to Section 2, where there's a guarantee that the department will move these folks out to [the] API or to another program as expeditiously as possible. Whether there is another program other than [the] API is ... open to question because these folks are being committed because they're a danger to self or others - they wouldn't be at the hospital if there was another local program that could handle them. CHAIR McGUIRE noted, however, that Mr. Rainery is objecting to Section 2, which includes the aforementioned guarantee. "If we decided as a committee, for example, to remove Section 2, then what would be the relief for the community hospital?" she asked. MR. RAINERY offered his belief that if Section 2 is removed, the department would do as the letter of intent proposes and find other funding for the program. In response to another question, he said that according to his understanding, patients currently do have the right to appeal a decision to stop funding private treatment at local hospitals. Number 1512 REPRESENTATIVE GARA surmised, then, that under current law, even if the department runs out of funds for this program, a person can maintain his/her right to continued treatment, which forces the department to find additional money. MR. RAINERY offered that the current law says that the department shall pay for these services and does not include a restriction on appeals which are based on exhaustion of the appropriation. REPRESENTATIVE GARA asked whether the DET program provides those who live in Anchorage with treatment in private facilities. MR. RAINERY said no, adding "it's a part of the long term plan that has been put together over the last few years to have those sorts of beds available in Anchorage, [but] this bill will likely make development of those beds a question." Number 1597 VERNER STILLNER, Legislative Representative, Alaska Psychiatric Association, characterized HB 535 as an unfunded mandate of the emergency medical mental health system of Alaska. It's not just services that will be affected, he remarked, but also emergency mental health services. He went on to say: Unfunded mandate because, one, the fiscal note that is attached has an 18 percent decrement in the funding over this year. Secondly, the funding under Section 2 is managed through a letter of intent, which to me has never been done before. I don't know of a single jurisdiction in [the] United States where the state or the local jurisdiction does not become the payor of last resort for involuntary admissions. An involuntary admission is someone that is deemed dangerous to self or others, because of mental illness, or gravely disabled. A doctor or a licensed mental health professional can petition the court, the petition is given, the police can pick the individual up and take him to the local ... Designated Evaluation & Treatment facility. So this is really a lifesaving piece of legislation and a system that has worked very well, and I would not like to see it threatened because it deals with our communities and with our patients, our relatives, and our family members. So therefore, I think we need to do everything to support this system; I think the bill has very good provisions in it for the management of this program that heretofore has not been managed very well, and I know that from a day-to-day basis - and there's some very good administrative tools in it. But I'm strongly opposed to Section 2 and I would urge you to consider deleting that and funding this emergency mental health system as it is funded elsewhere in the nation. Number 1691 MR. STILLNER continued: Secondly, what will happen when monies run out? Right now, there are transport monies that are in this bill, so that the transport monies that require an escort to take the individual from Fairbanks Memorial [Hospital/Denali Center] or from Ketchikan General [Hospital] to the nearest Designated Evaluation [& Treatment facility] will also simultaneously run out, so that the patient may have a difficult time getting to the API. Now, I doubt if the [Alaska State] Troopers are going to be taking these individuals when they don't have a contract or they don't have an obligation to escort the individual that is dangerous to self or others to the API. The API is also downsizing to 74 beds - their average daily census currently is running around 69 - I don't see how they can accommodate these additional patients, especially during their high peaks, so that I'm afraid that the mental health individual - the mentally ill [person] that is [dangerous] to self or others - will end up in detainment in the correctional facility nearby. And I don't like to see that happen, I don't think any of us in this room would like to see that happen. So therefore, I think that the bill is a very good bill other than Section 2 and Section 8 - the appeal process - and I would urge you to amend those two and delete them. Number 1745 ROBERT B. BRIGGS, Staff Attorney, Disability Law Center of Alaska, relayed that he's had some experience with the Designated Evaluation & Treatment program prior to passage of the 21st legislature's SB 97; he was the attorney of record in a lawsuit challenging the state's practice regarding administration of the DET program because it was felt that the state was not uniformly providing a state-funded benefit to people involuntarily committed to mental health facilities or voluntarily committed in lieu of involuntary commitment. As a result of that lawsuit's settlement, SB 97 was introduced and passed in the 21st legislature; he noted that he'd assisted with crafting the language of that bill. MR. BRIGGS went on to say: One thing that I've heard today that I disagree with is the statement that this bill ... before you today - House Bill 535 - only affects involuntary commitments. One of the themes of our lawsuit and one [of] the themes of SB 97 was that this medical assistance program would [also be] provided to people who are admitted in lieu of involuntary commitment. And the reason for that was to promote voluntary mental health treatment and to prevent unnecessary expense of involuntary commitment proceedings, because if somebody was presented with the prospect of having a huge bill for mental health treatment, they would be much less willing to go voluntarily if they knew that they could get the state to pay for an involuntary commitment. The system [has never been adequately] administered or adequately funded to provide a full array of community mental health services. I think the fact that this bill is before you demonstrates that the state has asked, too often, for private providers to fund the costs of mental health treatment that indigent people could not afford, a cost that the state should, over time, ... be bearing. The fourth point I want to make, though, about this bill, is that my initial reaction to the concept of requiring patients to register prior to being eligible for a benefit is ... that [it] immediately raises potential equal protection and due process red flags. Number 1861 MR. BRIGGS continued: People with mental illness, especially someone who's suffering from paranoia, may refuse to allow themselves to be registered because suddenly their name is in a state coffer somewhere. The system has been administered ... since the 21st legislative session ... without this registration requirement, and I'm not really sure what the need for it is. I suspect what is really going on is, as another witness has testified, ... the administration wants to try to move as many of these patients from private beds to [the] API, which I suggest is a violation of the Americans with Disabilities Act [ADA] least restrictive mandate and is in contradiction to the current state mental health plans, which call for providing mental health treatment in the community where the individual resides or as close to the community where the individual resides as possible. When someone is admitted to a mental health treatment facility, it is very difficult to have successful replacement in the community without involving that person's family. And time and time again, in this state, people are shipped off to [the] API, then a treatment and discharged plan is formed, but it just does not get carried out for one reason or another. We believe, as an organization, ... that treatment programs are going to be much more effective when treatment is provided in the community mental health setting closest to where that person resides. So we oppose this bill, but in particular we oppose the registration provision of Section 4. I apologize for providing this testimony without written backup; ... we've been short-staffed. We recognize that this is an administration bill and it has the support of the [Alaska State Hospital & Nursing Home Association], so I'm not expecting this bill necessarily to be held up. But I do urge each member of this committee to support mental health treatment funding; it's surprising ... how small our community is when I see people I know who are state employees ... [with] decompensating episodes. Number 1965 MR. BRIGGS concluded: I guess one other point I want to make about the registration program, and something I think this committee could fruitfully do, is expand the registration time. The current form of the bill ... says that the registration must take place within 24 hours of admission, ... and I would urge changing that to a minimum of 72 hours. When a patient is admitted to the mental health hospital, often extremely decompensated, [he/she] may not know what resources are available or even where they're from or what their name is. I think it places a burden on the hospital to try to assist that individual in deciding whether they have adequate assets to cover the hospitalization; within 24 hours, a treatment plan may not have even been formulated, whereas by 72 hours, ... the patient may very well have cleared and be able to remember things and point out assets and insurance coverage where the hospital ... CHAIR McGUIRE interjected and, after determining that no one else wished to testify, closed public testimony on HB 535. She then directed attention to a handwritten amendment with corrections that read [original punctuation provided]: 1) Strike page 2 lines 15 (after "notification.") through line 20 2) Strike page 2 lines 28 through line 30 3) Strike page 5 lines 3-6. Strike Section 8. 4) on page 2 line 28 insert "(2) make every effort to secure additional funding and reallocate available appropriations to fund financial assistance under this chapter." CHAIR McGUIRE requested that this proposed amendment be divided. REPRESENTATIVE GRUENBERG agreed, and relayed that he wished to change item 3 such that it deleted both Section 7 and Section 8; therefore, item 3 of the proposed amendment would delete language starting on page 4, line 27, through page 5, line 6. He noted that Section 7 is merely a conforming change related to the change proposed via Section 8, and opined that it should be deleted as well. [Although no formal motion was made, no objection was stated, and item 3 was treated as amended.] In response to comments, he indicated that he would withdraw item 4, and suggested that items 1, 2, and 3 [as amended] be treated as a single amendment. Number 2103 CHAIR McGUIRE agreed, and referred to items 1, 2, and 3 [as amended] as Amendment 1: 1) Strike page 2 lines 15 (after "notification.") through line 20 2) Strike page 2 lines 28 through line 30 3) Strike page 4 line 27 through page 5 line 6. Strike Sections 7 and 8. [Although no formal motion was made, Amendment 1 was treated as having been moved for adoption.] REPRESENTATIVE SAMUELS objected, and asked Mr. Hogan to comment. MR. HOGAN said that [the DHSS] is opposed to deleting lines 15- 20 from page 2. REPRESENTATIVE SAMUELS relayed that he would be maintaining his objection. REPRESENTATIVE GRUENBERG suggested amending Amendment 1 such that it also deletes "(1)" from page 2, line 24. CHAIR McGUIRE suggested instead just allowing the drafter the latitude to renumber accordingly. REPRESENTATIVE GRUENBERG agreed. REPRESENTATIVE GARA said that according to his recollection, it has been represented that the proposed cuts to funding will not have an impact on patient care. However, he remarked, "it appears to me that if we don't adopt [Amendment 1], then we will have adopted a cut based upon a promise of no impact to patient care, when, in fact, we know it's going to have an impact [on] patient care." CHAIR McGUIRE agreed and said she would be supporting Amendment 1. She added: I don't want to have a guarantee in there per se, but I think when people are committed involuntarily, it's a very delicate situation and, frankly, the closer they are to their support systems and their communities, the better off they are. And if you have a letter of intent that's already saying you're going to do that, I have grave troubles with putting new law on the books; the letter of intent, as you well know, is not binding in any way, and so if the intent is to continue to fund it, I don't think ... these sections are necessary for now .... Number 2214 A roll call vote was taken. Representatives Gara, Gruenberg, and McGuire voted in favor of Amendment 1. Representatives Ogg, Samuels, and Holm voted against it. Therefore, Amendment 1 failed by a vote of 3-3. Number 2238 CHAIR McGUIRE [made a motion to adopt] Amendment 2, on page 4 [lines 2-3] replace "24 hours" with "72 hours". There being no objection, Amendment 2 was adopted. REPRESENTATIVE GRUENBERG raised the question of possibly creating an exemption to the registration provision. MR. BRIGGS offered his belief that because a third party may apply for assistance on behalf of someone, and because hospitals often are the entities that ultimately make the applications for very decompensated individuals, it is not necessary to include an exemption to the registration provision. TAPE 04-78, SIDE B Number 0001 REPRESENTATIVE GRUENBERG asked Mr. Briggs to provide the committee with a legal opinion supporting his comment that the bill may violate the ADA and therefore be unconstitutional. MR. BRIGGS agreed to provide a legal opinion. Number 2304 REPRESENTATIVE SAMUELS moved to report CSHB 535 (HES), as amended, out of committee with individual recommendations and the accompanying fiscal note. REPRESENTATIVE GARA objected. Number 2282 A roll call vote was taken. Representatives Ogg, Gruenberg - after first voting "no" and then changing his vote to "a reluctant 'yes'" - Samuels, Holm, and McGuire - noting that she did so reluctantly - voted in favor of moving CSHB 535(HES), as amended, out of committee. Representatives Gara voted against it. Therefore, CSHB 535(JUD) was reported from the House Judiciary Standing Committee by a vote of 5-1. CHAIR McGUIRE mentioned the letter of intent. [HB 535 was heard again later in the meeting.] HB 535 - LIMIT STATE AID FOR MENTAL HEALTH CARE Number 0890 CHAIR McGUIRE announced that the committee would again take up HOUSE BILL NO. 535, "An Act relating to liability for expenses of placement in certain mental health facilities; relating to the mental health treatment assistance program; and providing for an effective date." Number 0880 CHAIR McGUIRE made a motion to rescind the committee's action that day in moving CSHB 535(JUD) from committee. There being no objection, CSHB 535(HES), as amended, was back before the committee. REPRESENTATIVE GRUENBERG made a motion to rescind the committee's action that day in failing to adopt Amendment 1: 1) Strike page 2 lines 15 (after "notification.") through line 20 2) Strike page 2 lines 28 through line 30 3) Strike page 4 line 27 through page 5 line 6. Strike Sections 7 and 8. REPRESENTATIVE SAMUELS objected. A roll call vote was taken. Representatives Gara, Gruenberg, Anderson, and McGuire voted in favor of rescinding the committee's action in failing to adopt Amendment 1. Representatives Ogg and Samuels voted against it. Therefore, the committee rescinded its action in failing to adopt Amendment 1 by a vote of 4-2. CHAIR McGUIRE stated that the question of whether to adopt Amendment 1 was back before the committee, and asked whether there were any objections to adopting Amendment 1. REPRESENTATIVE SAMUELS objected. A roll call vote was taken. Representatives Gara, Gruenberg, Anderson, and McGuire voted in favor of Amendment 1. Representatives Ogg and Samuels voted against it. Therefore, Amendment 1 was adopted by a vote of 4-2. Number 0749 REPRESENTATIVE GRUENBERG moved to report CSHB 535(HES), as [newly] amended, out of committee with individual recommendations and the accompanying fiscal note. There being no objection, CSHB 535(JUD) was reported from the House Judiciary Standing Committee.
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