Legislature(1999 - 2000)
04/07/1999 01:38 PM Senate HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE HEALTH, EDUCATION AND SOCIAL SERVICES COMMITTEE April 7, 1999 1:38 p.m. MEMBERS PRESENT Senator Mike Miller, Chairman Senator Pete Kelly, Vice-Chairman Senator Gary Wilken Senator Drue Pearce Senator Kim Elton MEMBERS ABSENT All members were present COMMITTEE CALENDAR SENATE BILL NO. 105 "An Act determining the facilities constituting a school for purposes of public school funding; and providing for an effective date." -SCHEDULED BUT NOT HEARD SENATE BILL NO. 71 "An Act relating to licensure by the State Medical Board." -SCHEDULED BUT NOT HEARD SENATE BILL NO. 97 "An Act relating to confidential mental health records; relating to mental health services and programs; relating to liability for payment for mental health evaluation and treatment services; and providing for an effective date." -HEARD AND HELD PREVIOUS SENATE COMMITTEE ACTION SB 105 - See HESS Committee minutes dated 3/22/99 and 3/31/99 SB 71 - No previous action to report SB 97 - No previous action to report WITNESS REGISTER Ms. Gina Macdonald Special Projects Coordinator Div. of Mental Health & Developmental Disabilities PO Box 110620 Juneau, AK 99811-0620 POSITION STATEMENT: Commented on SB 97 Ms. Karen Perdue, Commissioner Department of Health & Social Services PO Box 110601 Juneau, AK 99811-0601 POSITION STATEMENT: Commented on SB 97 Mr. Doug Pomeray Fairbanks Community Mental Health Center 122 1st Avenue, #5 Fairbanks, AK 99709 POSITION STATEMENT: Commented on SB 97 Gail Ballou 745 8th Avenue Fairbanks, AK 99701 POSITION STATEMENT: Commented on SB 97 Mr. Bob Briggs, Staff Attorney Disability Law Center 230 So. Franklin St. #209 Juneau, AK 99801 POSITION STATEMENT: Commented on SB 97 Ms. Beverly Fonoti 1220 28th Avenue Fairbanks, AK 99701 POSITION STATEMENT: Supported SB 97 Ms. Jeanette Grasto 1369 Ballaine Rd. Fairbanks, AK 99709 POSITION STATEMENT: Supported SB 97 Mr. Gene Grasto 1369 Ballaine Rd. Fairbanks, AK 99709 POSITION STATEMENT: Supported SB 97 Mr. James Shill Charter North Hospital 2530 DeBarr Road Anchorage, AK 99508 POSITION STATEMENT: Commented on SB 97 Mr. Walter Majoros, Executive Director Alaska Mental Health Board 431 N. Franklin St., Ste. 201 Juneau, AK 99801-1121 POSITION STATEMENT: Supported SB 97 Ms. Pat Clasby Alaska State Hospital & Nursing Home Association 211 4th St., Ste. 114 Juneau, AK 99801 POSITION STATEMENT: Supported on SB 97 Mr. Mike Powers Fairbanks Memorial Hospital 1283 View Pointe Fairbanks, AK 99709 POSITION STATEMENT: Supported SB 97 Mr. Jeff Jesse, Executive Director Alaska Mental Health Trust Authority 550 W. 7th Avenue, Ste. 1820 Anchorage, AK 99501 POSITION STATEMENT: Supported SB 97 ACTION NARRATIVE TAPE 99-17, SIDE A Number 001 SB 105-PUBLIC SCHOOL FUNDING and SB 71-PHYSICIAN LICENSURE CHANGES CHAIRMAN MILLER called the Senate Health, Education and Social Services (HESS) Committee to order at 1:38 p.m. and said HESS would only take up SB 97 today. SB 71 would be heard Monday, April 12. 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.