02/15/2012 01:30 PM Senate HEALTH & SOCIAL SERVICES
| Audio | Topic |
|---|---|
| Start | |
| SB134 | |
| SB55 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 55 | TELECONFERENCED | |
| += | SB 134 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE HEALTH AND SOCIAL SERVICES STANDING COMMITTEE
February 15, 2012
1:33 p.m.
MEMBERS PRESENT
Senator Bettye Davis, Chair
Senator Dennis Egan
Senator Johnny Ellis
Senator Kevin Meyer
Senator Fred Dyson
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 134
"An Act relating to child support awards; and repealing Rule
90.3, Alaska Rules of Civil Procedure."
- MOVED CSSB 134(HSS) OUT OF COMMITTEE
SENATE BILL NO. 55
"An Act relating to mental health patient rights, notifications,
and grievance procedures."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 134
SHORT TITLE: CHILD SUPPORT AWARDS
SPONSOR(s): SENATOR(s) KOOKESH
01/17/12 (S) PREFILE RELEASED 1/6/12
01/17/12 (S) READ THE FIRST TIME - REFERRALS
01/17/12 (S) HSS, JUD
02/06/12 (S) HSS AT 1:30 PM BELTZ 105 (TSBldg)
02/06/12 (S) Heard & Held
02/06/12 (S) MINUTE(HSS)
02/15/12 (S) HSS AT 1:30 PM BUTROVICH 205
BILL: SB 55
SHORT TITLE: MENTAL HEALTH PATIENT RIGHTS & GRIEVANCES
SPONSOR(s): SENATOR(s) DAVIS
01/19/11 (S) READ THE FIRST TIME - REFERRALS
01/19/11 (S) HSS, FIN
02/15/12 (S) HSS AT 1:30 PM BUTROVICH 205
WITNESS REGISTER
KIMBERLY CLARK, Staff
Senator Albert Kookesh
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Explained changes to SB 134 on behalf of the
sponsor.
JOHN MALLONEE, Director
Child Support Services Division
Department of Revenue (DOR)
Anchorage, Alaska
POSITION STATEMENT: Answered questions related to SB 134.
THOMAS OBERMEYER, Staff
Senator Bettye Davis
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Introduced SB 55 on behalf of the sponsor.
JEAN MISCHEL, Legislative Counsel
Division of Legal and Research Services
Legal Affairs Agency
Juneau, Alaska
POSITION STATEMENT: Explained the changes in version T of SB 55.
KATE BURKHART, Executive Director
Alaska Mental Health Board
Juneau, Alaska
POSITION STATEMENT: Answered questions regarding SB 55.
JIM GOTTSTEIN
Law Project on Psychiatric Rights
Anchorage, Alaska
POSITION STATEMENT: Commented on SB 55.
FAITH MEYER, Mental Health Advocate
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 55.
DORRANCE COLLINS, Mental Health Advocate
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 55.
ACTION NARRATIVE
1:33:15 PM
CHAIR BETTYE DAVIS called the Senate Health and Social Services
Standing Committee meeting to order at 1:33 p.m. Present at the
call to order were Senators, Meyer, Egan, Dyson, and Chair
Davis. Senator Ellis arrived during the course of the meeting.
SB 134-CHILD SUPPORT AWARDS
1:34:02 PM
CHAIR DAVIS announced that the first order of business would be
SB 134.
SENATOR EGAN moved to adopt the proposed CS for SB 134, labeled
27-LS0671\B, as the working document before the committee.
CHAIR DAVIS objected for discussion purposes.
KIMBERLY CLARK, staff, Senator Albert Kookesh, explained the
changes to version B on behalf of the sponsor. She said the
first change is on page 1, line 2; the words "and providing for
an effective date" were added.
The second change is on page 15, line 4; the following words
were added: "for the purpose of establishing a monthly support
obligation for monthly health care expenses, a tribunal shall
apply a reviewable presumption that the cost of health insurance
is reasonable under this section if the cost of purchasing
health insurance does not exceed five percent of the responsible
parent's net income."
The third change is on page 16, line 2; the following words were
removed: "if a party has made a reasonable demand for
documentation under the subsection, a tribunal may modify a
child support arrears retroactively."
The fourth change is on page 16, line 29; the words "and AS
25.28.050(b)" were removed.
CHAIR DAVIS asked if anything was added in that section.
MS. CLARK said no.
She continued to explain that another change is on page 18, line
1; the section was changed to AS 25.28.095, which is the review
of the guidelines. The following words were added: "The child
support services agency established in AS 25.27.010 shall notify
the legislative committees with jurisdiction over matters
involving child support awards of the need for a compliance
review of the guidelines established in this chapter every four
years as provided in federal law. The compliance review must
include a determination of whether the application of the
guidelines consistently results in a determination of
appropriate child support awards in the state."
On page 18, line 8, the section number was corrected. On page
19, lines 22-23, Section 6 was added as follows: "The uncodified
law of the State of Alaska is amended by adding a new section to
read: TRANSITION; CHILD SUPPORT SERVICES AGENCY. The child
support services agency established in AS 25.27.010 may proceed
to adopt regulations necessary to implement the changes made by
AS 25.28, enacted by sec. 1 of this Act, but the regulations may
not take effect before the effective date of Section 1 of this
act."
Section 7 was added on line 28. It states that, "Section 6 of
this Act takes effect immediately under AS 01.10.070(c)."
Section 8 was added on line 29. It states, "Except as provided
in Section 7 of this Act, this Act takes effect July 1, 2013."
JOHN MALLONEE, Director, Child Support Services Division,
Department of Revenue (DOR), noted the changes addressed
concerns from the last meeting.
CHAIR DAVIS said she would provide a copy of the document for
Mr. Mallonee.
1:40:35 PM
SENATOR MEYER asked if there was a Department of Health and
Social Services (DHSS) fiscal note.
MR. MALLONEE replied that there was a fiscal note from
Department of Revenue for about $6.7 million.
CHAIR DAVIS stated that it was her intention to move the bill.
She asked where it would be heard next.
MS. CLARK said it would be heard next in the Senate Judiciary
Standing Committee.
1:42:08 PM
CHAIR DAVIS understood that all concerns were included in the
new CS. She noted the bill has two more committee hearings.
SENATOR EGAN moved to report the CS for SB 134, version B, from
committee with individual recommendations and the attached
fiscal notes.
CHAIR DAVIS announced that without objection, CSSB 134(STA) was
reported from committee.
SB 55-MENTAL HEALTH PATIENT RIGHTS & GRIEVANCES
1:45:19 PM
CHAIR DAVIS announced that the next bill before the committee
would SB 55, an Act relating to a mental health patient's
rights, notifications, and grievance procedures.
SENATOR EGAN moved to adopt the proposed CS for SB 55, labeled
27-LS0082\T, as the working document before the committee.
CHAIR DAVIS objected for discussion purposes.
THOMAS OBERMEYER, staff, Senator Bettye Davis, introduced SB 55
on behalf of the sponsor. He read from the following sponsor
statement:
SB 55 amends the one-paragraph mental health grievance
procedure provided under AS 47.30.847. This bill
governs due process and grievance procedures in all
state and private mental health hospitals, clinics,
and units which receive public funds. Prompted by the
8,000-10,000 admissions to mental health facilities
and units in Alaska each year where there are
relatively few formal grievances filed, this bill
requires adequate notice, forms, advocate assistance,
rapid written administrative response, right to
appeal, and telephonic access to a state monitored
call center to lodge a complaint immediately.
Mental health patients are among the most vulnerable
in Alaska. Among the thousands of individuals civilly
committed or brought into locked hospital psychiatric
units for forced evaluations each year, some are in
handcuffs, shackles or strapped to a gurney,
involuntarily medicated without consent of family or
legal representative, or court ordered to receive or
continue psychiatric treatment in public, private, or
non-profit psychiatric clinics. There are hundreds of
patient assaults and staff injuries each year. There
are also thousands of children who are voluntarily
committed each year usually in private facilities.
Although sometimes treated with psychotropic drugs,
children are considered better protected by the state,
family members, legal representatives, and attorney
advocates.
Current statutes and regulations do little to protect
psychiatric patients civilly committed 30 to 60 days,
individuals detained for forced evaluation up to 7
days, or individuals detained in a jail or in a
psychiatric emergency room or private unit while
waiting for space in a psychiatric hospital. State
and federal courts have consistently ruled that
individuals who have not committed a crime and are
locked up for psychiatric evaluation and treatment
should not be treated like criminals and their rights
are to remain intact to the greatest extent possible.
Ironically, prisoners in Alaska's correctional system
are afforded a much more comprehensive grievance
procedure with due process rights and protections
under the law than mental health patients.
Upon admission to a mental health facility patients
often experience an immediate loss of liberty and
freedom, arbitrary exercise of authority, and may be
institutionally traumatized in the process. Because of
the exceptional circumstances under which mental
health patients are admitted and treated, due process
requires special safeguards in transparent, readily
available grievance procedures and more state
oversight. This bill will reduce unnecessary patient
trauma, assaults, unintentional injury or death, and
attendant liability and litigation experienced in
other states before statutory reform.
New grievance procedures under SB 5 require detailed
complaint forms, three levels of administrative review
requiring written answers by within 5 days by
supervisory and executive staff at levels one and two,
including response to urgent grievances within 24
hours. A level three final administrative appeal to
the commissioner must be answered within 14 days after
filing or by default is denied. A commissioner's final
decision may be appealed to Superior Court within 30
days. A grievance may be filed at any time, but there
is a statutory limitation of one year after being
discharged from the facility or unit. All grievances
filed shall become part of the patient's permanent
record. Mental health facilities and units must file
periodic reports of the number and type of grievances
and resolutions, including litigation. The bill allows
for a personal representative to act in the interest
of the patient in the grievance process, as well as
providing a patient advocate appointed in the mental
health facility or unit.
Although it is counterintuitive that more verbal and
written complaints are not reported to the state or
documented each year, including an estimated 250 at
the Alaska Psychiatric Institute which may treat an
estimated 1200 to 1500 patients per year, many
facilities in this rapidly growing area of mental
health are privately held and not presently compelled
to report to the state Division of Behavioral Health.
Private hospitals presently may only report mental
health complaints to the Joint Commission for the
Accreditation of Hospital Organizations (JCAHO), not
the state. Furthermore, JCAHO reportedly may only
review grievance procedures in participating hospitals
every 2-3 years. Also, many grievances in the past
have been handled verbally without creating a patient
record and in-patient stays are often very short from
a couple of days up to a week or two. Passage of SB
55 will improve mental health treatment, grievance
reporting, and state oversight.
MR. OBERMEYER related that Wilda Laughlin from the Department of
Health and Social Services (DHSS) and Kate Burkhart from the
Mental Health Board have concerns.
CHAIR DAVIS requested a summary of all changed in version T.
1:53:32 PM
JEAN MISCHEL, Legislative Counsel, Division of Legal and
Research Services, Legal Affairs Agency, explained the changes
in version T of SB 55. She related that page 2, line 22, to page
3, line 5, contains several additional patient rights for people
undergoing evaluation or treatment in a mental health facility.
She noted the patient grievance procedure has been modified in
Version T to exclude the hearing officer and the administrative
hearing office. On page 5, changes were made regarding the
grievance process. Page 6 clarifies the urgent level of review.
On page 8, the definition of the facility was changed.
2:00:48 PM
KATE BURKHART, Executive Director, Alaska Mental Health Board,
said she was speaking on behalf of the board and she had
provided written comments in members' packets. She said today
she would discuss the scope of the bill, how the bill fits into
the accepted administrative law tenants, and the issue of
emergency grievance.
MS. BURKHART thanked the sponsor and noted that SB 55 has come a
long way in meeting the sponsor's intent to improve access to a
grievance procedure for vulnerable Alaskans. She addressed the
scope of the bill. She said she hopes that the improved
definition of "facility" limits the scope of SB 55 to
"designated evaluation and treatment facilities," or hospitals
with mental health units to which a person is committed
involuntarily under Title 47. However, there are references in
the CS that could apply SB 55 to community behavioral health
centers and providers of voluntary mental health services. She
related the differences between voluntary and involuntary
treatment services. She suggested clearly defining the treatment
setting in the bill and limiting it to hospital settings.
MS. BURKHART opined if SB 55 were to apply to community
behavioral health providers, it would create a conflict related
to patient grievances. Anyone who receives Medicaid dollars is
required to comply with federal grievance regulations. The
Division of Behavior Health also has a layer of requirements. A
grievance process can be included in the bill as long as all
layers are taken into consideration.
MS. BURKHART noted that the definition of "grievance" in the
bill no longer conflicts with federal regulations.
2:06:29 PM
MS. BURKHART addressed how SB 55 fits in with administrative
procedures. Other than the Alaska Psychiatric Institute, the
providers of involuntary mental health services are private,
non-profit hospitals. They are not administrative agencies and
receipt of state funds does not convert them into administrative
agencies. She explained that level three reviews, which require
the commissioner to make a determination, do not work because,
under administrative law, hospitals do not have to submit to the
commissioner's determination.
MS. BURKHART voiced concern about the shifting of the burden of
proof in the CS. As written now, the hospital has the burden of
proof to prove something did not happen. Usually, the patient
has to prove that something happened. Vulnerable patients are
not always able to do so and the bill provides for patient
advocates. She opined that shifting the burden of proof creates
an environment where the mental health provider has to prove
that something did not happen, which is not fair to the
provider. She suggested the patient have representation.
MS. BURKHART addressed emergency grievances that were included
in the CS due to concern that the department was not tracking
violent offenses against patients. All incidents are reported to
the department and tracked. She emphasized that crimes against
disabled people are often marginalized. She stressed that crimes
are not grievances and should be reported to law enforcement.
2:10:28 PM
SENATOR DYSON asked if Chair Davis would address those concerns.
CHAIR DAVIS said she would look at them, but not address them
today.
SENATOR DYSON asked if the bill would pass from committee today.
CHAIR DAVIS stated her intention to not move the bill today.
SENATOR DYSON reserved his questions for the new version of the
bill.
SENATOR DYSON asked what size small community-based institutions
are.
MS. BURKHART explained that it depends on the community.
SENATOR DYSON noted he has seen an abuse of overmedicated
patients.
2:13:15 PM
MS. BURKHART agreed that there were people who believed in
medication as the answer; however, some people do not believe in
medication. She said she believed that the answer lies somewhere
in between.
SENATOR DYSON asked if Ms. Burkhart thought there was a problem
with overmedication and if there were remedies.
MS. BURKHART suggested in a community setting the remedy is to
work with a treatment team. In a hospital setting, the remedy is
through the court system. She said she did not believe
overmedication was pervasive.
SENATOR DYSON asked if anything needs to be changed in statute
to assist overmedicated patients.
MS. BURKHART suggested increasing the number of patient
advocates. She opined that in a hospital, a grievance procedure
with a patient advocate is the way to go.
SENATOR DYSON said he thought he heard "no."
2:16:07 PM
JIM GOTTSTEIN, Law Project on Psychiatric Rights, commented on
SB 55. He related his experience with court appeals being
detrimental to patients due to high costs if the person loses.
He suggested on page 5, line 23, adding "if such an appeal is
filed, no attorney fee award against the grievant may be ordered
by the court." He stressd it was important to beef up the
grievance procedures and put them in regulation. He said there
are not adequate remedies for overmedication and suggested the
system needs to have non-medication alternatives.
2:20:34 PM
FAITH MEYER, Mental Health Advocate, testified in support of SB
55. She agreed that grievance procedures should be improved
because they are inadequate. She related that no patient in
2005-2006 was allowed to file a grievance. She concluded that
current statute was poorly written and does not include due
process or an appeal process.
2:24:32 PM
DORRANCE COLLINS, Mental Health Advocate, testified in support
of SB 55. He discussed the lack of grievance procedure rules to
protect patient rights. He recalled the history of API's
restrictions of patient's rights. He made suggestions for
wording changes in the bill.
CHAIR DAVIS asked if Mr. Collins was working off of version T.
MR. COLLLINS said he was. He noted that he has provided written
testimony.
CHAIR DAVIS noted that the committee would continue to work on
SB 55.
SENATOR DYSON thanked the sponsor.
2:30:02 PM
There being no further business to come before the committee,
Chair Davis adjourned the Senate Standing Health and Social
Services Committee at 2:30 p.m.