Legislature(2007 - 2008)SENATE FINANCE 532
02/06/2008 09:00 AM Senate FINANCE
| Audio | Topic |
|---|---|
| Start | |
| SB8 | |
| SB101 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 8 | TELECONFERENCED | |
| + | SB 101 | TELECONFERENCED | |
| + | TELECONFERENCED |
SENATE BILL NO. 8
"An Act relating to a mental health patient's right to
choose the gender of hospital staff providing intimate
care to the mental health patient and to the duties of
hospital staff in caring for patients receiving mental
health treatment."
Co-Chair Hoffman MOVED to ADOPT CSSB 8, labeled 25-L010\E,
Mischel, 2/4/08.
Co-Chair Stedman OBJECTED.
Co-Chair Stedman summarized that CSSB 8 changes the age of
patient's right to request a care provider by gender from
sixteen to eighteen years of age. The bill, as originally
introduced, addressed patients sixteen years and older but
the Judiciary committee amended it to eighteen years of age.
SENATOR BETTYE DAVIS, SPONSOR elaborated on the reasoning
behind the age change. She indicated that patients under
eighteen years of age usually enter the mental health care
system through the Department of Health and Social Services,
parental consent or other professional situations. She
considered many teenagers (under eighteen) incapable of
making mature decisions due to their past emotional or
social experiences. She indicated many facilities would be
affected by this age change.
Co-Chair Stedman WITHDREW his OBJECTION.
9:09:53 AM
TOM OBERMEYER, STAFF TO SENATOR BETTYE DAVIS provided an
overview of SB 8 by reading the sponsor statement: (copy on
file)
SB 8 provides that a mental health patient 18 years of
age or older who is receiving mental health treatment
and being provided intimate care at a hospital shall
have the right to have care provided by a staff member
who is the gender that the patient requests. Many of
these patients have been traumatized by sexual and/or
physical abuse in the past and they are very sensitive
to being touched or assisted by hospital staff who
provide intimate care, because the experience may
trigger from original abuse feelings of fear,
helplessness, distress, humiliation, and loss of trust
in staff. The supervisor or manager employed by a
hospital shall pot notice of this right in a
conspicuous place, so patients know they may exercise
this right when they are concerned about the gender
responsible for their personal intimate care.
While it is understandable that a hospital may not
always be able to comply with the requirement of choice
of gender in all situations and requests due to
staffing schedules and shortages on particular shifts
or duty units, the bill requires that the facility
document the non-compliance in the patient record that
the intimate care was provided by a licensed or
unlicensed staff member of a gender opposite that
requested by the patient. This information might
otherwise be ignored or lost. The information is also
useful not only for confirming the good faith effort on
the part of the institution to comply with the wishes
of the patient, but for medical purposes as well in
evaluating the effect on patient outcome, because
individuals re-traumatized in this way are subject to
chronic stress which can worsen serious mental illness
and result in symptomatic relapses and repeated re-
hospitalizations. Lastly, this bill will preserve
information for inquiry into grievance procedures at
mental health facilities under Title 47, which have
been described as unduly burdensome by some patients,
and easily circumvented or limited because the language
is too broad.
9:12:31 AM
Mr. Obermeyer reminded the committee that this bill only
addresses gender choice, not grievance procedures (SB 186
"An Act relating to a mental health patient grievance
procedure"). The implementation of the bill presents no
additional costs, other than an additional effort on the
part of facilities to accommodate patient's requests. Mr.
Obermeyer noted that it may be impossible for the facility
to accommodate gender choice in all circumstances. He
maintained that under such circumstances, the facility only
needs to document the occurrence and provide what care is
possible. It is the belief of numerous doctors and nurses
that this measure will help reduce patient trauma and avoid
recidivism among the mental health population.
9:13:25 AM
Co-Chair Stedman questioned the rationale of allowing the
patients, not the hospital, to make the decisions on gender
care. Mr. Obermeyer remarked that experience has proven that
the gender choice situations are often the easiest for
hospitals to ignore. He stressed that hospitals contain a
vulnerable, often involuntary population, without much
control of their lives once institutionalized. Lacking
requirements, the institution may simply follow the
procedure that works best for them over the patient's
desires. He clarified that this did not necessarily imply
patient abuse, but in situations where patients have been
traumatized, it may not be evident to the patients that they
had the power to file a complaint. If there is a procedure
in place, posted in a prominent place, the patient would be
better informed of their rights to request a specific gender
or staff member. The entire point of the bill is to protect
the vulnerable patient population in the mental health
facility. Co-Chair Stedman questioned the meaning of line
14, "if, after reasonable and good faith efforts to comply."
Mr. Obermeyer replied that a "good faith" effort means that
the hospital or facility must try to accommodate patient
needs, but when it is impossible, due to shift or vacations
schedules, it may require a second person (of the requested
gender) to be in with the patient and staff member. The
reasonable and good faith effort is a term used throughout
statutory language based on the normal course of business.
9:16:28 AM
Senator Olson questioned the consequences if the good faith
efforts are less than successful. Mr. Obermeyer read page 2,
line 1-8, that if the hospital is:
unable to comply with the requirement under (a) of this
section, (A) document in the patient record that
intimate care was provided by a licensed staff member
of the gender opposite to the gender requested by the
patient under (a) of this section; or (B) if a licensed
staff member is not on duty at the time of the
patient's request under (a) of this section, document
in the patient record that the care was provided by an
unlicensed staff member of the gender opposite to that
requested under (a) of this section.
Mr. Obermeyer explained the record of non-compliance is not
necessarily to hold the hospital responsible, although there
could be instances where this is necessary, but to examine
the patient records for the incident date to follow-up in
cases of litigation or questions.
9:18:06 AM
Senator Olson remarked that there had been discussions in
Bartlett and Fairbanks Memorial Hospitals to address such
issues but wondered how this would affect other hospitals,
particularly rural hospitals, which may be understaffed and
unable to comply. Mr. Obermeyer reminded the committee that
the institution only needs to document the incident if they
are unable to comply. Senator Davis added that the bill
mentions licensed and unlicensed individuals, allowing the
institution to provide the best service possible for them.
An alternative way to provide the service could be to
involve the community in possible service. Senator Olson
wondered if any rural hospitals had given an opinion on this
bill. Mr. Obermeyer responded that he had not heard from any
rural hospitals.
Senator Olson inquired on the effect in the very small
communities in retaining health care aids. Mr. Obermeyer
responded that the language of the bill describes the
facility as a hospital; therefore smaller institutions may
not fall under this requirement.
9:20:31 AM
Senator Thomas stressed that the most vulnerable patients
are the younger ones. He appreciated that hospitals often
try to provide consistent gender care but believed that more
attention should be paid to those younger and more prone to
possible abuse in an institution.
Senator Davis addressed these concerns by indicating that
younger children, when they are institutionalized, usually
have other professional support working to protect their
rights. She maintained that those adults eighteen years of
age and older may not have this kind of protection or the
ability to ask for it.
Senator Dyson encouraged the passage of this bill in its
present form. He asserted that personal privacy is important
to our society and individuals but those with mental
handicaps are often prone to exploitation. He believed that
laws and regulations were important in assisting patient's
needs. Senator Dyson also stressed that a significant
percentage of exploitation involved same sex and possible
exploiters often obtain employment in positions caring for
those they intend to abuse. He maintained that the State of
Alaska and the Legislature are committed to providing and
protecting personal privacy to prevent further trauma in the
lives of mental health patients.
9:26:41 AM
PATRICK HIGGINS, NORTH STAR BEHAVIORAL HEALTH SYSTEMS,
appreciated the Committee review and consideration of this
bill.
RON ALDER, DIRECTOR OF ALASKA PSYCIATRIC INSTITUTE,
DEPARTMENT OF HEALTH AND SOCIAL SERVICES applauded any
effort to protect the vulnerability of the psychiatrically
disabled population. He asserted, as a hospital director,
the numerous flaws in the proposed legislation. Mr. Alder
observed that there are no United States laws where a
legislature mandates the documentation of non-compliance in
an accredited hospital and he was concerned that it would
set a precedent. He believed that this bill, for public
hospitals, should receive some attention from the Department
of Law. He remarked that the proposed legislation also
asserts that intimate care only be provided by licensed
professionals. Mr. Alder referenced the Joint Mission of
Hospital Accreditation Standards which states that licensed
professionals are not required. He indicated that when
intimate care is required at the Alaska Psychiatric
Institute (API), the service is usually provided by
unlicensed psychiatric nursing assistants under the
direction and supervision of a registered nurse. Mr. Adler
emphasized that this decision has not been a problem and
questioned this bill's relevance on these issues. He
maintained that at the API only one patient complaint had
been filed in five years which resulted in an elaborate
policy to cover this and future issues. He also noted he was
unaware of any problems at Bartlett or Fairbanks Memorial
Hospitals. If the intent behind this legislation is to make
sure that there is a "trauma-informed" system of care and
that the overall direction of the inpatient psychiatric
acute care industry needs to move in the direction of the
more "trauma-informed" system, then more trauma assessments
on patients were needed, not necessarily mandating
legislation such as this.
9:31:37 AM
Senator Olson questioned that if the bill passed and a
related problem occurred at API, would the hospital's
accreditation be jeopardized. Mr. Adler replied it would
not. He clarified that at API an advocate already existed to
attend to any patient complaints on an ongoing basis.
9:32:36 AM
FAITH MYERS, ANCHORAGE, supported the passage of the bill.
She restated that SB 8 only asks that psychiatric facilities
try and make a "good faith" effort at providing the
patient's gender choice for intimate care services. She
believed that a callousness or apathy can develop in
institutions and psychiatric facilities. She asserted that
it is the Statutes and regulations that protect patients.
The goals of any legislation should be to empower patients
to make decisions that work toward their recovery. Reducing
recidivism and trauma to psychiatric patients is the goal of
SB 08. She strongly supports the passage of this bill.
9:34:40 AM
DORRANCE COLLINS, ANCHORAGE, supported the passage of SB 8.
Mr. Collins commented that in a recent Alaska Supreme Court
decision, the justices stated there was a clear unavoidable
tension between psychiatric treatment facilities seeking
convenience and economics versus patient's rights which can
sometimes manifest into patient abuse. The justices saw it
as a given that, without oversight, no reasonable
expectation existed that patients would be treated fairly or
have their rights protected. Disability Law Center's (DLC)
opinion stated that patients did have a legal right to
privacy and that included issues of modesty. Mr. Collins
indicated that the attorney for PsychRights concurred with
Disability Law Center's opinion that between sixty percent
and ninety percent of acute care psychiatric patients have
been sexually or physically abused. He believed that
recovery begins with allowing patient's to protect
themselves and take part in privacy decisions. He maintained
that SB 08 only asks that psychiatric facilities make a
"good faith" effort to accommodate patient's requests. Mr.
Collins advocated the passage of this bill.
9:36:13 AM
DON ROBERTS, KODIAK, supported the bill but indicated that
after listening to the comments, he realized where abuses
could occur on both sides of the issue. He elaborated by
stating that this law could possibly result in patient
harassment of the staff. If the law passes, he would like to
see legislative or institutional follow-up on its
effectiveness. Mr. Roberts continued that he also recognizes
a problem if the facility could dismiss a patient's request
because of inconvenience. He believed that in the issue of
noncompliance, more than a note in the patient's treatment
folder should be required. Mr. Roberts suggested that
someone outside the institution, on behalf of the patient,
be informed when privacy requests were not met.
9:38:28 AM
Mr. Obermeyer responded to Mr. Adler's concerns regarding
non-compliance in the record. Mr. Obermeyer referred to Mr.
Alder's statement that there should be a Department of Law
opinion. He noted that Mr. Adler made the same statement in
the committee notes of April 2007, giving the Department of
Law time to respond if they saw a problem. He mentioned that
Senator Davis had addressed a "grievance" procedure (SB
186). Mr. Obermeyer noted Mr. Roberts's suggestion of an
outside source being informed of patient grievances. Mr.
Obermeyer believed that the Department of Social Services
would receive and screen complaints to evaluate the need to
be investigated. He suggested that the fact that API has had
only one patient complaint in five years could be attributed
to the lack of a satisfactory procedure in place to file a
complaint.
9:41:04 AM
Senator Davis thanked the Committee for their consideration
of the bill and looked forward to having it back on the
floor for later passage.
Senator Thomas referred to Page 2, line 2-4, regarding
documentation, and expressed his hope that a more thorough
description of the services be mentioned. Mr. Obermeyer
responded that that the patient's record is the only thing
required to be retained in the hospital. Any notes,
comments, or suggestions regarding an incident would
disappear once it was believed the problem had been resolved
at the lowest level. Mr. Obermeyer indicated the information
documented in a patient's record is something that can be
retrieved later from the State or an agency or attorneys if
they believed an abuse situation existed.
9:42:37 AM
Senator Davis questioned if Senator Thomas meant that he
believed more should be put in the record other than just
documenting that the gender request was not provided. She
assured the Senator that nurse's and doctor's notes
automatically provide more detail than just a simple
statement that the service was not provided.
9:43:14 AM
SB 8 was heard and HELD in Committee for further
consideration.
9:44:00 AM
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