Legislature(2009 - 2010)BELTZ 211
04/08/2009 01:30 PM Senate HEALTH & SOCIAL SERVICES
| Audio | Topic |
|---|---|
| Start | |
| SB66 | |
| SB168 | |
| SB169 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 168 | TELECONFERENCED | |
| *+ | SB 169 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 66 | ||
SB 66-MENTAL HEALTH PATIENT GRIEVANCES
1:37:01 PM
CHAIR DAVIS announced consideration of SB 66.
1:37:13 PM
TOM OBERMEYER, staff to Senator Davis, sponsor of SB 66, read
the sponsor statement. He explained that SB 66 replaces a one-
paragraph mental health grievance procedure under AS
47.30.184(7) with a much more comprehensive process. It
recognizes and protects to a much greater extent the
constitutional right of due process to an aggrieved patient who
is undergoing treatment at a public or private evaluation
facility or mental health unit.
Because of the exceptional circumstances under which such
patients are admitted and treated, due process requires special
safeguards. SB 66 provides a reasonable opportunity for informal
or formal resolution of concerns or grievances with timely
written complaints, responses and appeals, department review,
maintenance of records and reporting. It covers all state and
private mental health facilities or hospital mental health units
licensed in this state. New procedure requires detailed
complaint forms, written answers by an impartial body within
five days, three levels of appeal including response to urgent
grievances within 24 hours. The timelines are strict because
many patients are only in mental health facilities for a matter
of days and grievances or appeals cannot be heard before
discharge. A grievance may be filed at any time, but there is a
statutory limitation of year after being discharged from the
facility or unit.
1:38:39 PM
SB 66 provides notice of the grievance procedure upon admission
to the facility, easy access to grievance forms and a secure
complaint box in which to deposit the forms. The contents of the
complaint box are to be read each day, and the original copy of
the form must be kept in the patient record. The department is
charged with reviewing all grievances and responses. Facilities
and units must file quarterly reports of the number and type of
grievance and the resolution including litigation. SB 66
prevents mental health facilities or units from "front loading"
or asking patients to go through an informal complaint process
before filing a grievance. In this way grievances in the past
were reportedly were seldom heard and there is no written record
of a grievance on which to file an appeal.
The bill allows for personal representatives to act in the
interest of the patient in the grievance process as well as
providing an appointed patient advocate in the mental health
facility or unit.
He noted that the department sent over some suggestions that
include adding a definition of "grievance." He said typically
there is no record of what is going on and many of the people
who are involved in the process are denied due process because
they are mentally ill. He explained that due process involves
deprivation of life, liberty or property, and the main problem
here is a lack of liberty, particularly in those who are in
forced civil commitments. The department has said maybe this
bill should only apply to those, but they are trying to
recognize that this state doesn't have a procedure or standard
form that allows these patients to have routine issues dealt
with in a timely way.
Finally, three levels of appeal have been set up. The first two
levels go up to the commissioner; no response is needed. If they
want to appeal to the third level - the administrative hearing
officer, the department is asked to intervene. This means that
the hearing officer would make a determination, and then it
would be turned over to the commissioner to accept or make some
other determination. At that point, the administrative process
is over and the next step would be court. This does not
anticipate that the process of criminal law will not apply
should the police be called, but it ensures that there will be a
record of what goes on throughout the process.
1:42:51 PM
SENATOR PASKVAN moved to adopt the proposed committee substitute
(CS) to SB 66, labeled 26-LS0239\E, as the working document.
There being no objection, version E was before the committee.
SENATOR ELLIS joined the meeting.
1:44:07 PM
CHAIR DAVIS asked Mr. Obermeyer to explain the changes in the
CS.
MR. OBERMEYER said essentially the CS ties up some loose ends.
"Formal grievance" was replaced with "grievance" on page 2, line
2, and "written" was added before "notice" on page 3, line 2,
and "appeal" before "procedure" on line 9. On page 3, lines 12-
14 added "a written response to the grievance on the form
required by one of the subsection within five days after receipt
of the grievance and after each level of requested review."
The written response is supposed to include a list of options to
resolve the grievance including a level-3 appeal. It also
changed the time frame to appeal from 20 days to 30 in
subsection 5(c) on page 3, line 30. Page 4, lines 1-4 adds "the
hearing officer shall make findings and recommendations to the
commissioner who shall make a final written decision on or
th
before the 5 day after the commissioner receives the
recommendations." This is to give the department an opportunity
to resolve the matter at the lowest level, and if it is
determined it can't be resolved the patient can go to court.
MR. OBERMEYER said that the hearing process has many more
formalities and it is truly an independent body. One of the big
concerns in the process is that impartiality is almost
impossible unless you do get to an impartial administrative
hearing officer; however, the biggest problem is that most
grievances are not ever heard and there is no documentation that
they ever occurred.
1:47:56 PM
MR. OBERMEYER said language on page 5, lines 6-7, says the
facility or unit shall make a good faith effort to mail a
response to a grievant that has been discharged from the
facility. The facility is defined to mean "hospital or clinic in
which mental health patients receive evaluation or treatment and
for which public funds are provided" on page 5, line 26. Page 6,
lines 2-3 describes a unit as "a discrete portion of facility
dedicated to the treatment or evaluation of mental health
patients."
1:50:07 PM
BRENDA KNAPP, Program Administrator, Treatment and Recovery,
Division of Behavioral Health, Department of Health and Social
Services (DHSS), said they support the spirit of the bill and
share the legislature's desire to ensure that mental health
patients in the state are treated fairly, receive appropriate
treatment and that their concerns, when they have them, are
heard. But they do have some concerns with the bill as written
and those are in a memo.
She advised that first of all, there are already grievance
policies in place. Certainly the hospital facilities with
designated evaluation and treatment facilities and stabilization
facilities are all accredited by the joint commission are
required to have and follow grievance procedures. But within the
community system, which would also be impacted by this bill, any
grantee is required as part of their RFP procedure to provide a
copy of their grievance procedure for consumer complaints. That
has to be approved by the department in order for them to
receive funding. She said her experience is that having the
grievances resolved at the lowest level does work. If it can't
be resolved, the department is already required in AS 47.36.060
to investigate and respond to complaints made by a patient or an
interested party on behalf of a patient.
Although the current bill sets forth some new requirements - one
of them being the three levels of review - the third one
requiring department intervention, it does nevertheless require
that copies of all grievance activity and the resolutions of
those complaints be provided to the department. This would be a
huge volume of documentation, and the department would be
required to review all grievance documents that are provided for
compliance with the section.
1:53:41 PM
MS. KNAPP said although they might only be required to intervene
on the third level, all levels would require review for
compliance. Certainly if something was found to be mishandled
they would have an obligation to investigate and follow through.
So it raises a level of work for the department that has been
handled at the local level. They deal mostly in communities with
non-profits or with municipal or tribal entities that do have
their own governing boards where grievances of any sort are
resolved. "We have that that works."
The bill also requires a specific form to be used for
grievances. At this time the community programs have to design a
form and submit it to the department for approval. They are
given models they can use and have some latitude within their
own structure to tailor it to their own needs as long as some of
the core elements are there. Certainly the Joint Commission has
standards regarding what the grievance procedure and policy
would look like for the inpatient facilities. The state would
like to move toward accreditation of community facilities but
that represents a lot of money to providers.
Another concerning aspect of the bill is the broad definition of
grievance. Currently it is a concern or a complaint that is
unresolved. This bill broadens it to include "suggestions" which
widens the arena. It is too broad.
1:56:37 PM
MS. KNAPP pointed out that there are other venues for patients
and recipients of community based services to express their
concerns without having to fill out a form and wait for a formal
procedure - organizations such as the State Mental Health Board,
the Mental Health Trust Authority, the Disability Law Center,
Office of Public Advocacy and the Ombudsman. She concluded by
saying they are very willing to work with the committee on this
bill.
1:58:29 PM
CHAIR DAVIS asked how many grievances have come before the
department per year.
MS. KNAPP answered probably about five actual grievances in the
past five years.
CHAIR DAVIS asked if that doesn't seem odd to her.
1:59:10 PM
MS. KNAPP said that was not surprising, because she has worked
in the community system for many years and knows how grievances
are handled. It doesn't surprise her that they are resolved at
the level in which they occur. If a grievance involves a
criminal act, of course, it is referred to law enforcement.
SENATOR DYSON said he thought this bill changes what "grievance"
means and that more things might fall into it now.
MS. KNAPP agreed.
SENATOR DYSON asked her to help him understand the down side of
this from the department's perspective.
MS. KNAPP said if grievances can be successfully handled at the
level at which they occur, it seems appropriate to do that, and
to require that the department be copied on all documents
surrounding that seems like an unnecessary administrative
burden. They want staff to focus on real problems.
SENATOR DYSON asked if, in her profession, there is a
possibility of people using the grievance process
inappropriately out of spite.
MS. KNAPP replied that is true in any field, but all complaints
merit review.
2:03:16 PM
SENATOR DYSON asked since she said she appreciated the spirit of
the legislation if she was inferring that improvements could be
made to the system.
MS. KNAPP said that if there is the perception of a problem,
there is a problem. So it is important to look at the concerns
of those who perceive the problem and find what the reasons
might be.
SENATOR DYSON asked if this department had been audited in
regard to this issue in recent history.
MS. KNAPP said she did not know.
CHAIR DAVIS asked her to find out.
CHAIR DAVIS said Jean Mischel, drafting attorney for this
legislation, and they should ask her to address the change in
definition of "grievance" with her.
2:05:41 PM
MR. OBERMEYER commented that the definition of "grievance" was
intentionally put into the statute because many of the issues
that come before these facilities are often changed from what
might be a grievance to a suggestion or a complaint. So it gives
the facility the opportunity to talk the individual out of what
they are doing. This recognizes the problem of "front loading"
and making a grievance disappear.
2:07:39 PM
JEAN MISCHEL, Attorney, Legislative Legal Services, said the
definition used here is very broad. Alaska statue has no other
definition of grievance; so lacking that, the courts would apply
the dictionary definition. This change goes beyond that, and it
is a policy call for the legislature.
2:09:10 PM
JAMES GOTTSTEIN, President/CEO, Law Project for Psychiatric
Rights (Psych Rights), said he was on the Mental Health Board
and strongly supported SB 66. The board pushed through standards
for grievances and he wrote a letter to the Chair on 2/16/09 on
this issue. He said the administration didn't appreciate the way
mental health clients are marginalized just by being classified
as mental health clients. So whatever they do can easily be
dismissed and disregarded unless safeguards are in place. So it
is very important that this bill puts those safeguards in place.
Also, when he was still on the board they pushed for putting the
requirements they had negotiated with the department into
regulations so that they would be more permanent.
In line with what he said before about people being
marginalized, they are often really coerced into accepting
things, and that's another reason why there really should be
oversight of the process.
MR. GOTTSTEIN said it is interesting that the administration
would complain about the huge amount of paperwork if this were
enacted and at the same time say that there were only five
grievances in five years. It strains credulity to say only five
grievances were unresolved to the satisfaction of clients in
five years. He thought the current process was suppressing the
elimination of the problems that are going on.
2:13:24 PM
FAITH MEYERS, speaking for herself, supported SB 66. The current
psychiatric patient grievance procedure statute, AS 47.30.847,
does not adequately protect patients and their rights.{ As a
former psychiatric patient, she said she had been in acute care
psychiatric facilities, evaluation units and had received
treatment as an out-patient. As an advocate, she has talked to
former psychiatric patients and their newsletter includes
results of a recent survey that shows dissatisfaction with
current psychiatric patient procedures.
She stated that 10 different categories of clients receiving
services from the DHSS who are not satisfied can file an appeal
with the department or with an administrative law judge. Alaska
may be the only state that does not allowing psychiatric
patients to file an appeal to a higher level. Even individuals
in prisons or jails can file an appeal with the Department of
Corrections, but as of now all psychiatric patients do not have
a clear path to file an appeal either with DHSS or an
administrative law judge. Either would be acceptable.
MS. MEYERS said the loopholes in the current statute allow
psychiatric facilities to deny patients their right to file a
grievance at the time of their choosing. It is important that
patients receive a written copy of the grievance procedure and
associated rules, get a written response in a timely manner, be
able to file a grievance when they choose instead of having to
through the facility informal complaint resolution process
first, be able to appeal to a higher authority when dissatisfied
with the resolution, and to have grievance reporting that will
be looked at by more than one person within 24 hours for an
emergency grievance. These are all rights given by SB 66.
2:17:40 PM
DARENCE COLLINS, representing himself, supported SB 66. In
Maine, he said, people sued their DHSS equivalent to force
improvements in the state psychiatric patient grievance
procedure. In the state of Georgia, the legislature stepped in,
in 2008 and revised the grievance procedure statute after it was
shown that their equivalent of DHSS was not properly
investigating psychiatric patient complaints or keeping records
of them.
At ease at 2:18 p.m.
MR. COLLINS said the Alaska Psychiatric Institute (API) that is
managed by DHSS in a 2006 report showed 256 complaints filed by
patients in a 12-month period; not one was considered a
grievance, and not one person received a written response, which
is a federal requirement. The loophole and inadequacy in the
current grievance procedure statute allowed API to treat all
complaints informally. He enumerated complaints included safety,
sexual abuse, and medications. API has made some improvements,
but nothing stops them from going back to their old habits and
50 other facilities are still doing the same type of thing.
2:22:19 PM
MR. COLLINS said two reports from the Ombudsman's Office were
critical of DHSS because they did not want to keep statistics.
SB 66 will require DHSS to keep statistics. The same report
indicated that DHSS has not investigated a psychiatric complaint
in many years even though they are required to do so by AS
47.30.660. The department cannot by law delegate its
responsibility of investigating a patient's complaint to a non-
state entity, but that is exactly what DHSS is doing. He said
that revising and updating psychiatric patient procedure
statutes is a national trend as is making them uniform.
2:25:08 PM
SENATOR PASKVAN asked if an internal peer review process had
been performed at API, which is confidential.
RON ADLER, Director, Alaska Psychiatric Institute, Department of
Health and Social Services (DHSS), said, "We are always in a
continuous state of continuous quality improvement." All
complaints and grievances are review by both himself and the
medical director; they have a Patients' Rights and Ethics
Committee that reviews these and looks at trends and documents
them as they are relevant. The medical staff at API has a peer
review process that is confidential.
SENATOR PASKVAN asked how many of those processes have been
completed on average per year.
MR. ADLER responded that he could get that data for him.
SENATOR PASKVAN said he wanted to see if any of the 256
complaints were addressed in the 2006 review.
MR. ADLER stated that API deals with a number of people who have
disturbances of thoughts, and he takes exception to anyone who
says x number of people complain of sexual misconduct or
violence, whatever. That is just the kind of thing they hear
from people who are incapacitated at time of admission. Once
they stabilize, they will frequently either retract their
complaint or not acknowledge that it was going on out of
embarrassment.
2:29:34 PM
CHAIR DAVIS asked him to provide that information to her office.
SENATOR DYSON asked when someone has been involuntarily been
committed, has a guardian ad litem been appointed.
MR. ADLER answered that a "court visitor" and a public defender
come in and work with the patient and represent him in any legal
proceedings that are relevant to commitment status and
medication orders.
SENATOR DYSON said he worries about an organization that is far
less professional than API, that is just warehousing folks and
may not be properly caring for people. If that organization was
not being professional, how would an outside person ever find
out and "blow the whistle?"
2:31:40 PM
MR. ADLER replied that the federally funded authority in the
state is the Disability Law Center that is headquartered in
Anchorage, but has offices in Juneau and Fairbanks. They are
very active with API; their telephone number is at each
treatment unit, and if there is any allegation of violation of
human rights they are quick to investigate. The scope of the
Center's authority goes beyond that of the state hospital and
includes the private sector.
SENATOR DYSON asked who has oversight of conduct at the 50 other
facilities.
MR. ADLER responded that his impression is that Alaska is a very
small state; the Mental Health Board conducts quarterly meetings
in various parts of the state and spends a great deal of time
taking public testimony and/or holding town halls to get input
from the local constituents to see how the system can be
improved. It's always been amazing to him when a consumer of
services makes a statement that things aren't right without
going into detail. And then after testimony has closed, a number
of people who are involved in the system engage the person to
see what is wrong and a subcommittee is established to make
changes. That is the same process that started when Faith Meyers
brought complaints about her treatment at API.
MR. ADLER said he thinks Alaska has a very transparent and
collaborative process; it is very difficult for any type of
misconduct to occur. The things that need to be changed have
already been changed through a process of oversight and
collaboration through the variety of stakeholder meetings and
public testimonies that go on throughout the year.
2:35:32 PM
MS. KNAPP added that within the community system of 50 or so
grantee programs, these are voluntary programs; people are not
"committed" to them. If a person is deemed not competent to
manage her own affairs, a guardian would be appointed. If they
might be a danger to themselves they might be committed for a
period of time so they are not actually locked down. Family
members are often the guardians.
2:36:53 PM
SENATOR DYSON said the inference is that some of the people who
are complaining, if indeed it was bad, they could leave. He
assumed that people who are involuntarily committed are not free
to leave.
MS. KNAPP replied yes; that would be if they are in the
psychiatric unit under commitment at Bartlett Hospital, which is
the designated evaluation and treatment facility. But at the
community program like Juneau Alliance for Mental Health they
are free to leave.
SENATOR PASKVAN asked if the results of the medical review or
joint accreditation are confidential.
MR. ADLER answered that the joint commission review is public;
the peer and medical reviews are confidential.
2:38:52 PM
CHAIR DAVIS asked Ms. Knapp for a list of grantees and to
identify the levels of care provided by the grantees and
hospitals. She advised that the bill will probably not get
another hearing this session, but she was going to appoint a
subcommittee. Her feeling is that there is a reason for the
bill, and she appreciated the department's willingness to work
with her on it.
MS. KNAPP agreed.
SENATOR DYSON asked for any audits.
2:41:19 PM
CHAIR DAVIS said if one wasn't available, she may have to
request one. She closed public testimony and held SB 66 in
committee.
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