Legislature(1999 - 2000)
04/07/1999 01:38 PM Senate HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 97-MENTAL HEALTH; RECORDS; TREATMENT
CHAIRMAN MILLER invited department staff to begin the testimony on
SB 97.
MS. GINA MACDONALD, Division of Mental Health & Developmental
Disabilities, stated that SB 97 has two major parts. The first
part clarifies the authority of the department to collect
information from mental health services provided in community
mental health centers statewide.
Ms. Macdonald passed out a 1997 document from the Legislative Audit
Division that reviewed community mental health care and services.
Its first section contains the auditor's recommendations and the
second, the DHSS response to those recommendations. The
Legislature, Mental Health Trust Authority, Mental Health Board,
mental health consumers and the department all feel it's very
important to collect information about mental health services to
identify what is bought with the funding and how effective the
services are. The first part of SB 97 intends to make clear the
department's authority to collect that information in order to
measure outcomes of service.
The second part of SB 97 clarifies the eligibility criteria and
payment procedures of an existing program that pays for services
for in-patient hospital care for persons at risk of harming
themselves or others, or who are severely impaired by mental
illness. They are hospitalized in community hospitals throughout
the state for emergency evaluation or for continued 30-day
treatment. The department pays for those services for people who
have no income and no other source of payment. The department feels
it is critical to do that at this time because of the downsizing of
API. The private sector facilities must take on some of the
emergency mental health function of hospitalizing people for short-
term care. This can be accomplished by paying the facilities on
the basis of eligibility of particular patients.
MS. MACDONALD said that Ms. Shannon O'Fallon of the Department of
Law would address the first part of the bill, and she would answer
questions on the second part.
SENATOR KELLY stated that he intends to amend the confidentiality
portion out of the bill and separate the two parts, maybe even in
a separate bill. Since it will be put into a different CS, he
suggested it may save time to not take testimony on
confidentiality, and hear comments on the eligibility requirements.
Number 090
CHAIRMAN MILLER responded that a number of individuals are
concerned about the reporting requirements which will "bog down"
the bill. The second part of the bill is also important. He said
he was willing to take some testimony on why people believe the
reporting requirements should be in the bill, "knowing it's going
to be a political land mine trying to pass it."
MS. MACDONALD replied it's the committee's call, but the department
feels both parts of the bill are critical to delivering mental
health services. The department could address two separate bills.
SENATOR KELLY invited Commissioner Perdue to speak on the
confidentiality portion of the bill.
MS. KAREN PERDUE, Commissioner of the Department of Health & Social
Services, expressed appreciation to Senator Kelly for sponsoring
the bill. Last year the legislative auditor wrote a number of
recommendations for the department to pursue in the community
mental health area to gain more accountability. Many millions of
dollars are being spent in the General Fund and in the Medicaid
Program. The current data systems don't allow a full check on
public funds to ensure there isn't double billing. The department
wasn't able to answer some of the auditor's questions about double
billings if a program was getting GF grants and Medicaid money.
The department has worked through a lot of confidentiality issues,
and put forth regulations to address them.
The Fairbanks Community Mental Health Center (FCMHC) was
particularly concerned because they didn't believe the laws fully
cover asking questions and getting the information in a
confidential manner. The FCMHC filed a suit in court challenging
the department's regulations. The FCMHC has told the Commissioner
they believe the public has a right to understand there is
accountability, and the FCMHC doesn't disagree with that.
The solution is to provide a statutory basis for the department's
actions, to comply with the auditors, have accountability, and be
fully compliant with law. It would save the department money in
litigation. The statute has been put forward for these reasons,
although it can be peeled out of the bill. The Designated
Evaluation & Treatment (DET) portion of the bill is time-critical
as the API is being downsized. COMMISSIONER PERDUE said on the
record that "the legislative auditor has my feet to the fire, and
I'd like to be able to say that we are following her
recommendations."
SENATOR KELLY responded that his first priority is for the DET
portion of the bill to move forward because it is time-critical.
This would ensure the bill doesn't bog down with another issue of
great value that might cause neither portion to pass.
COMMISSIONER PERDUE stated she understood, and would appreciate
moving this bill through this year. However, if the bill has to be
split, that's what needs to done. The confidentiality issue, which
is complicated, does need to be addressed.
Number 185
SENATOR ELTON asked if splitting the bill would affect the fiscal
note.
SENATOR KELLY answered he didn't think so.
CHAIRMAN MILLER asked Ms. Shannon O'Fallon, on-line in Ketchikan,
who was going to talk on the first part of the bill regarding
confidentiality, if she had any comments.
MS. O'FALLON responded she would speak to other parts of the bill.
MR. DOUG POMERAY, Fairbanks Community Mental Health Center, stated
he has a number of concerns around the confidentiality portion of
the bill. Since the committee may remove it, he didn't have any
relevant comments at this time.
MS. GAIL BALLOU, Fairbanks, said that she also would address the
confidentiality issue at a later time.
MR. BOB BRIGGS, Staff Attorney with the Disability Law Center in
Juneau, skipped over the issue of confidentiality to address the
issue of DET services in Alaska. He explained the center has an
on-going lawsuit with the department involving a consumer seeking
enforcement and implementation of an existing statute. However,
the center recognizes in implementing that statute that one
solution may be to change the system. The center has been
supportive of the department's effort to arrive at changes in the
DET system.
In its present form the bill has problems Mr. Briggs did not fully
address in written comments to the committee. These comments were
submitted with anticipation of proposed amendments to the bill that
were worked out with providers, the Department of Law and DHSS.
Most of the amendments are good ones, and without the amendments,
MR. BRIGGS said there are significant equal protection problems in
the bill. He asked if the committee wanted him to focus on equal
protection.
CHAIRMAN MILLER replied, "certainly."
MR. BRIGGS said he would speak in general terms. If the will of
the Legislature is to continue providing assistance to people who
lack the ability to pay for the cost of mental health treatment,
then it must be done in a way that does not arbitrarily omit
certain people from eligibility. The focus of the department has
been on facilities designated as evaluation and treatment
facilities. In practice, these are facilities with a contract with
the department. If a person who needs mental health commitment
happens to go to a facility without a contract with DHSS, it raises
the question of their eligibility.
MR. BRIGGS said he has advocated with the department and in the
proposed amendments to solve most of the equal protection problems.
As long as a person receives evaluation and treatment services
under AS 47.30.660 through 47.30.915 throughout the bill in terms
of eligibility, the equal protection problems are resolved. But if
eligibility is focused at a designated facility, you must be sure
the designated facility is one that encompasses all facilities
where a person might receive mental health treatment under the
above referenced title.
Number 267
SENATOR KELLY asked Mr. Briggs if the amendments, as they stand,
resolve the problems or take care of most of the problems.
MR. BRIGGS said one definition in the bill presents a potential
equal protection problem. On page 6 of the proposed amendments,
the new definition of "evaluation facility" differs from the
definition of "evaluation facility" that exists in AS 47.30.915.
On page 5 of the proposed amendments, the cross-reference to the
definition of "designated treatment facility" incorporates an
existing definition. The amendments before the committee propose
a new definition of the phrase "evaluation facility" that he
suggested is a potential equal protection problem because there's
reference to a health care facility that has been designated by the
department, including a facility licensed or operated by the
federal government. MR. BRIGGS said he'd defer to others about
whether it's an all-inclusive definition, but until it's decided
it's all-inclusive of the people who would receive services under
AS 47.30.670 through 47.30.915, he doesn't see the purpose for a
new definition of "evaluation facility."
SENATOR KELLY asked Mr. Briggs if he raised this question with the
department and if it's an oversight or a point of disagreement. He
also asked people testifying later on to address this point.
MR. BRIGGS replied it's probably an oversight resulting from a
hurried meeting to finish the amendments. This definition wasn't
discussed.
The other portions of the bill not addressed by the amendments are
basically clean-ups. The eligibility language refers to people who
have the ability to contribute to the cost of their care. He
supports the concept of determining someone's ability to pay and
only extending benefits to those who lack the ability to pay. That
standard is already in the existing statute, but the bill proposes
a different model under which anyone who has the ability to pay
even $10 a month might not be eligible. Therefore, the bill won't
accomplish its intended purpose. He proposed language to the
department and Senator Kelly's staff that would encompass the
concept of ability to pay. Mr. Briggs offered to work with anyone
on a version that would encompass that but not create ambiguities
regarding eligibility.
SENATOR ELTON asked if he is suggesting having a definition that
allows people to pay according to their ability, because the
existing language would exclude them from paying anything at all.
MR. BRIGGS said that's exactly what he is saying. The second issue
relates to the appeal procedures in the bill. Current language in
the bill would allow the department to suspend an appeal of a
denial of the application for benefits in limbo indefinitely. One
way the department can suspend an appeal is to ask itself for
information. He requested that the committee tighten up the appeal
procedure portions of the bill.
MR. BRIGGS raised a third point, saying there should be a clear
statement of release from liability upon payment of charges. He
suggested adopting something similar to Medicaid law. Medicaid law
requires that a provider who accepts a Medicaid payment accepts it
as 100% payment and prohibits billing the patient for uncovered
charges. In practice, most providers are scrupulous and do not try
to make a double recovery. But hospital billing is complicated
and it's entirely possible to bill from some other source for a
procedure the hospital has already received payment for.
He brought up a fourth issue touched on earlier, stating that in
order to avoid equal protection claims, the bill should be careful
to refer to eligibility based on receiving evaluation or treatment
under AS 47.30.670 through 47.30.910. If this benefit is
designated only to people receiving treatment at specified
facilities, it raises equal protection issues.
Finally, the bill uses a phrase "household income." A large
percentage of the consumers live together but are not married. MR.
BRIGGS suggested defining income used for determining eligibility
based on "family income" because a person who doesn't owe a duty of
support should not lawfully be counted in determining a person's
eligibility, especially if that program is based on financial need.
He offered to work on a concept of "family income" and stated he
could quickly arrive at a proposed definition consistent with the
direction in past legislation.
Number 368
SENATOR ELTON remarked that some people living in non-family
situations might feel a moral obligation to help financially. He
hoped the definition wouldn't preclude those people from helping
if they wished to.
MR. BRIGGS replied it's a delicate issue that focuses on the
eligibility standard and the concept of "household income." In the
current language in the bill, the eligibility standard is based on
185% of the poverty line for the household income. The more
broadly the language is defined, the more people are going to be
eligible. If defined more narrowly to only people who are married,
then fewer people will be eligible for the program. He suggested
picking a standard that is consistent and, to stay safe, making it
"family income." If the committee chooses to stay with "household
income," it is potentially a legal issue, raising an equal
protection argument, if someone applies for this benefit and then
is found ineligible because they happen to live together in an
unmarried state.
Number 393
MS. BEVERLY FONOTI, Fairbanks resident and parent advocate for
improved mental health programs, urged passage of SB 97 in its
entirety. It would provide the necessary checks and balances and
improve accountability.
MS. JEANETTE GRASTO, President of NAMI Alaska and NAMI in
Fairbanks, stated the organization, with a membership of 500,
supports passage of both sections of this bill. A quality mental
health system is not possible without sufficient data. She stated
it's an issue of accountability and questioned whether services are
being provided.
MR. GENE GRASTO, Fairbanks, stated he supports this bill and the
changes made by the Disability Law Center, in its entirety.
MR. JAMES SHILL, representing Charter North Hospital in Anchorage,
discussed Charter North's involvement in the downsizing of API.
One of the three options for the replacement of API is the purchase
of Charter North. The hospital was involved in the Mental Health
Trust Authority meeting in December when many providers,
beneficiaries and the community lent their support to community-
based treatment with DET. Charter North supports DET, with a
caveat of adequate community funding. Most people in the
behavioral health care field agree the nationwide movement toward
community treatment of the mentally ill is a beneficial treatment
method. However, if API is downsized without adequately funding
those community resources, causing the beneficiaries to end up in
the judicial system or wandering the streets, then Charter North
would have to withdraw its support.
MR. WALTER MAJOROS, Executive Director of Alaska Mental Health
Board, thanked Senator Kelly on behalf of the board for introducing
this bill. He addressed his comments to the DET portion of the
bill, but stated for the record that the board supports both parts
of SB 97, considering access to records very important. The
state's management information system, and the safeguards and
policies enacted around the Aurora System adequately protect the
confidentiality of consumers. It's critically important for the
department to have client data to assist in future planning and to
present information on outcomes and services to the Legislature and
to the Trust Authority and other stakeholders.
He said the board supports the current bill because it would
clarify the statutory framework regarding the department's
responsibility for funding statewide DET services and who is
eligible to receive payment for services. The board is partnering
with the Trust Authority and DHSS to reduce API from a 79-bed to a
54-bed facility. Currently, emergency mental health services and
acute care in community hospitals in the Anchorage area don't exist
but will be the central aspect to a system complementing API in
serving those with crises and co-occurring substance abuse crises.
This bill will provide a statewide system, promoting more local and
regional responses, where currently the services are only available
in Juneau and Fairbanks. Dislocation from communities is difficult
for people and, in many cases, worsens their crisis. Consumers
prefer services closer to home and their natural support services.
DET services would also be cost-effective and open up a revenue
source. API cannot capture Medicaid reimbursement for people
between ages 18-64, whereas if the same type of service is provided
in a community-based hospital which is not classified as an IMD
(Institute for Mental Disease) it can get Medicaid reimbursement
for those age groups. He pointed out that API receives federal
DISH funding that will be dramatically reduced over the next few
years.
MR. MAJOROS stated the board supports the proposed amendments, and
he offered to work with the Disability Law Center if any further
amendments are needed.
Number 553
MS. PAT CLASBY, representing Alaska State Hospital and Nursing Home
Association (ASHNHA), said ASHNHA applauds the sponsor for
introducing SB 97. She discussed the evolution of care of the
mentally ill, the role of state hospitals during the past decade,
and services in an out-patient community setting. Individuals who
become acutely psychotic need acute but sporadic and brief
hospitalization; if they can access a local hospital their stay is
shorter and can tie in the community treatment team and involve the
family. It's humane, modern medicine. This bill would allow mental
health consumers to access the local hospitals that serve other
psychiatric individuals who have private insurance or Medicaid
coverage. It clarifies the Fairbanks demonstration project that
began 12 years ago, and the statute.
TAPE 99-17, SIDE B
Number 586
MS. CLASBY said in conclusion, ASHNHA has worked with the
Administration to address some concerns in the way it was drafted,
and has submitted multiple amendments. She thanked the committee,
and urged the passage of the bill this session in order to have a
smaller state hospital and treat the mentally ill closer to home.
SENATOR KELLY asked if the amendments are new concerns, or ones
that the stakeholders didn't agree on. MS. CLASBY replied the
first concerns were substantive and came from the hospitals, and it
would have been difficult to move the bill forward if some of those
weren't addressed. Now, the next set of amendments are from the
Disability Law Center. She said discussion will lead to resolution
because these are technical in nature, and none jeopardize moving
forward with a modern DET system.
SENATOR KELLY said his enthusiasm about the bill will be based on
the ASHNHA's ability to come to agreement with other stakeholders
on those issues.
MR. MIKE POWERS, Administrator at Fairbanks Memorial Hospital
(FMH), stated FMH endorsed the bill. He understood the carving out
of the confidentiality issue and agrees with the general thrust of
what's been said before the committee today, but wanted to point
out a couple things from the Fairbanks community's perspective.
With the downsizing of API and the effort to see patients closer to
home, there has been a spike in the Fairbanks mental health census
during the past 18 months. Five years ago FMH had major concerns
with the lack of methodology for payment, and worked closely with
Commissioner Perdue and Karl Brimner. This bill helps solidify a
collaborative relationship.
Number 548
MR. JEFF JESSE, Executive Director of Alaska Mental Health Trust
Authority, thanked Senator Kelly on behalf of the trustees for
sponsoring the bill and, as Senate subcommittee chair, providing
leadership on the budget and issues important to the development of
an effective mental health system. He said Alaska is justifiably
proud to be one of only a few states having no institutional care
for people with developmental disabilities because of the array of
alternative community-based systems.
The Trust Authority believes the state still needs a centralized
state facility, but it can minimize the need for that type of
care. This bill is required to create the foundation for
community-based services. All the stakeholders are now willing to
work out differences.
Although there are remaining issues on confidentiality, some
consensus was voiced today on the need to provide confidentiality.
MR. JESSE stated "we cannot allow confidentiality to be used as a
shield to avoid accountability and the ability to ensure proper
quality and effectiveness of our programs." If the will of the
committee splits that issue into a separate bill, he said the trust
authority would support it.
Number 515
CHAIRMAN MILLER stated the sponsor would hold SB 97 and bring back
a CS addressing issues brought up today. He asked that the members
turn in their lists of nominees for confirmation, and adjourned at
2:31 p.m.
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