Legislature(1999 - 2000)
04/29/1999 03:05 PM House HES
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
HB 162 - MENTAL HEALTH; RECORDS; TREATMENT Number 1817 CO-CHAIRMAN DYSON announced the next order of business as House Bill No. 162, "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." Number 1805 REPRESENTATIVE KEMPLEN, sponsor, presented HB 162 saying the purpose of this legislation is to provide the necessary, statutory changes on three features concerning mental health services. It clarifies client eligibility for mental health services, it establishes procedures for determining eligibility, processing applications, and paying claims, and it offers a conduit for mental health services to eligible clients through a community-based program. It provides adequate funding for evaluation and treatment services for a community-based program. He noted that the Department of Health and Social Services (DHSS) can answer any technical questions. The fiscal note reflects an agreement between the department and Alaska Mental Health Trust Authority (AMHTA). Senator Ted Stevens has come through with some of the necessary funding for this program. He mentioned that there are letters of support in the committee's packets. Number 1634 GINA MACDONALD, Special Projects Coordinator, Central Office, Division of Mental Health and Developmental Disabilities, Department of Health and Social Services, came forward to testify. She told the committee that this legislation emphasizes the inpatient services for people who are at risk of harming themselves or others, or are severely impaired by their mental health condition at the time they are hospitalized. The department is looking to fund the inpatient services for those people in private hospitals throughout the state. In order to do that in an organized, clear and consistent way, the DHSS wanted clarity in the statute about eligibility and payment structure and the service delivery aspects of this program. The DHSS has been doing this for years, but this allows them to do it in more organized way. As the Alaska Psychiatric Institute (API) is downsized, they are going to need those services in Anchorage and throughout the state, for the short-term hospitalization for patients in danger of harming themselves or others. REPRESENTATIVE BRICE asked what the current standards are for eligibility for a facility to be reimbursed for designated evaluation and treatment (DET) services. Number 1562 MS. MACDONALD answered there are two aspects of the bill in terms of standards. One is clinical in terms of harm to self or others and the other is eligibility in terms of income level. Currently the clinical standards are the same. Historically, they have provided services for people who are committed under the court order to be in the hospital. In the past year, they have also been providing services for people who would be committed if they decided to leave the hospital, but they choose to stay in the hospital and receive services voluntarily. They want to support that because it is clinically more appropriate for the patients to make that choice, and they know they would be committed otherwise. Number 1505 REPRESENTATIVE BRICE asked if it is appropriate to categorize the designated evaluation and treatment services as a mental health emergency room. MS. MACDONALD answered that it is more of an inpatient level. The emergency room level would be more of an assessment prior to admission into a hospital facility. This is one step beyond the emergency room level. There would be an inpatient stay, the patient would remain overnight and during that time, there is an extended evaluation process that happens. It does serve a community emergency response function in that it does provide a local place for someone in crisis to go and be safe and be evaluated. Number 1444 SHANNON O'FALLON, Assistant Attorney General, Human Services Section, Civil Division (Juneau), Department of Law, came forward to testify saying she does mental commitments in southeast Alaska. They do commit people for up to 30 days at Bartlett Regional Hospital, a designated treatment facility. It is the shorter term treatment, and people who are in crisis there are in imminent danger of harming themselves or others. Number 1421 REPRESENTATIVE BRICE asked how HB 162 will establish the clinical standards by which services will be provided to those people. Number 1406 MS. MACDONALD answered that under the authority of this statute, the DHSS will be able to establish standards for those services provided on an inpatient basis, but that is just part of the picture. There are services provided on an inpatient basis, and then there is the outpatient component of the service delivery for people who are in crisis. REPRESENTATIVE BRICE asked how HB 162 is going to keep someone in crisis from going to jail, and how does HB 162 direct that individual into the appropriate level of care. Number 1360 MS. MACDONALD answered that it gives hospitals a more steady source of funding for serving these patients so they are able to anticipate that capacity more readily. The biggest part of this bill is that it assures hospitals that they will have funding for providing services to indigent patients. If they don't have the capacity to do that, they haven't created a structure to be ready for them. REPRESENTATIVE BRICE asked what the financial eligibility standards are currently for the state to reimburse a designated evaluation facility. He asked how the department pursues that funding. Number 1278 MS. O'FALLON replied that once the facility has tried to pursue payment through a third party payer or go to court to try to collect money from the patient, and those things haven't worked out, the hospital will submit their bill to the state. If the person appears to be indigent, the department will pay for those services. MS. MACDONALD said the definition of who is eligible has been in dispute. The need for clarity is what has brought this bill about. Number 1112 ROBERT B. BRIGGS, Staff Attorney, Disability Law Center of Alaska, came forward to testify. He explained that the Disability Law Center provides legal representation for persons with disabilities in legal matters relating to their disability. They also work to effect systems change for persons with disabilities when they can. His involvement with the issue of the liability for mental health treatment for someone who has been involuntarily committed began with a client, who walked through his door, and presented him with a large amount of bills saying he can't pay these bills. The Disability Law Center has had a history with past mental health commitments where the DHSS had paid the bills of people who couldn't afford to pay them. When he presented a claim to the DHSS, they declined to provide any assistance. MR. BRIGGS indicated that the Disability Law Center felt that was not an implementation of an existing statute so they filed a lawsuit. As part of that lawsuit, they sought regulations from the DHSS to implement AS 47.30.910 which, in their view, contains a provision for requiring the DHSS to determine the ability of persons to pay for the costs of involuntary commitment, whether they are committed involuntarily, or whether they are committed "voluntarily-in-lieu" of an involuntary commitment. He uses "voluntarily-in-lieu" admission to cover the class of person who is presented to the hospital, a doctor informs that person that they do meet the criteria for involuntary commitment, and the doctor is going to commit them unless they agree to go voluntarily. Number 0998 CO-CHAIRMAN DYSON asked if there are different benefits for a voluntary versus involuntary commitment. MR. BRIGGS answered under the existing statute, in their view, there is not. The statute applies to both people who are involuntarily committed, and those who are committed in lieu of an involuntary commitment. CO-CHAIRMAN DYSON asked the same question about the proposed bill. Number 0971 MR. BRIGGS answered that HB 162 would clearly state that the benefit would be equal. There is a dispute over the interpretation of the statute he cited. This bill goes a long way to limiting that dispute and making it clear that both people who are voluntary committed in lieu of an involuntary admission, as well as those people involuntarily admitted, are subject to the relief measure. That is the upside of this bill for people who have mental disabilities. The downside of the bill is that under existing law there is no income cap on the eligibility for the benefit. This addresses a question What is the income criterion under existing law? It is simply stated in the statute "ability to pay," and there is no income cap. This bill would clearly state a cap on this benefit. MR. BRIGGS explained that in deciding to advocate on behalf of passage of this bill, one has to take into consideration both sides. The Disability Law Center speaks in favor of the bill simply because they believe that it is going to be of more benefit to more people to be assured that their voluntary admission will have access to the same level of benefits as somebody who is involuntarily committed because it will encourage voluntary treatment. CO-CHAIRMAN DYSON asked Mr. Briggs why he doesn't like the income cap. Number 0857 MR. BRIGGS answered there is a large group of people who may have some source of income, but they are the working poor. Those people could benefit also from this program. He said the fiscal climate may not be correct for establishing a threshold at 200 percent of poverty, but as the fiscal climate changes, he will be back advocating that they increase the cap. CO-CHAIRMAN DYSON asked Mr. Briggs if the cap were five times the poverty level would that be okay. MR. BRIGGS answered absolutely, but he is not certain that it would be acceptable. He suggested a hybrid approach to having an income cap, and then having an ability-to-pay formula that compares a variety of factors, including the total amount of unexpended bill, total income, easily liquidated cash and other assets. Number 0748 REPRESENTATIVE KEMPLEN made a motion to adopt the proposed committee substitute (CS) for HB 162, version 1-LSO761\H, Lauterbach, 4/29/99, as a work draft. There being no objection, Version H was before the committee. Number 0715 REPRESENTATIVE BRICE indicated he is supportive of the hybrid approach for those who don't fit under HB 162. CO-CHAIRMAN DYSON agreed it would be good, but he advised Representative Brice to be wise about not slowing down the process. REPRESENTATIVE BRICE agreed they needed to be wary of expediency, but they also need to ensure they are doing what they are supposed to do in addressing the needs of the people. He agrees they have a readily acceptable solution to the issues. MR. BRIGGS noted that Version H does resolve the issue of who is eligible for the benefit as compared to involuntary and voluntary-in-lieu admissions, but the eligibility threshold is not clear. Not only does someone have to have an income less than 185 percent of a poverty guideline, there is not a clear definition of which poverty guideline is being referred to, and there are potential interpretations of several poverty measures, so some correspondence from the DHSS on exactly which poverty guideline is intended would help that ambiguity. MR. BRIGGS indicated that the existing statute talks about the ability of a person to pay. This bill instead substitutes the phrase of "eligibility based on someone lacking the ability to pay or contribute to the payment of charges," which isn't fundamentally different from the concept of ability to pay. One of the reasons they filed the claim against the DHSS was because they felt there was a need for regulations that interpret the concept of ability to pay. There is recognition that there still is a need for those regulations; the bill in its current form does require regulations. Number 0513 MR. BRIGGS noted that there is not a deadline on when those regulations must be adopted. He suggests that they ask the DHSS what may constitute the factors that they will look at in determining ability to pay. He suggests looking at the magnitude of the overall liability, the income available to the liable person as well as their assets. MR. BRIGGS informed the committee that he will forward his definition of ability to pay to the committee. The other element of this bill is to provide a clear and efficient mechanism for funding the privatization of a state function. There is still one ambiguity in the bill that should be clarified. He is not sure of the intention of the paragraph on page 4, lines 22-26. He indicated it is intended to say that if a liable person does not provide the necessary information, the DHSS may issue an administrative order imposing liability on that person. He has language that might more clearly state that which he will provide in writing to the committee. MR. BRIGGS pointed out another aspect of this bill that has not been talked about is the reality that under existing law there is a cap on what hospitals may charge for the services rendered under the range of statutes from AS 47.30.670 through AS 47.30.915. He highlighted the language on page 4 of his written testimony that limits what charges may be imposed to "the actual cost of care and treatment." That term has a specific definition within the existing statute. That provides some measure of protection to consumers that this involuntary treatment will not cause charges that are outrageous and unreasonable. The new language in Version H is contained on page 2, line "Charges assessed for services provided under AS 47.30.670 - 47.30. 915 when a patient is hospitalized at a state-operated facility may not exceed the actual cost of care and treatment." Version H proposes a change in the cost cap. He is not prepared today to oppose that change. MR. BRIGGS is concerned that when there is a cost cap that is available to someone who is treated at a state-operated facility, and it is not available to a patient who is hospitalized at another facility, there is a potential equal protection problem. It is entirely possible that in practice, the costs incurred by patients at private facilities under this bill may be less than those charges incurred at a state-operated facility. They don't know. MR. BRIGGS is no expert on the ways hospitals are constrained in their billing practices by Medicare, Medicaid and other fiscal constraints. He pointed out it is a change in law, and there is a potential equal protection problem that can only be discerned as the bill is implemented. He urged the committee to pass this bill this year, and he remains committed to work to reach a consensus on this bill. TAPE 99-47, SIDE A Number 0008 WALTER MAJOROS, Executive Director, Alaska Mental Health Board, Office of the Commissioner, Department of Health and Social Services, came forward to testify in support of HB 162. This bill is critical and at the center of the effort to downsize API from a 79-bed facility to a 54-bed facility. This can only be done by transferring some of the functions now being provided at API into the community. One of the most important of those is acute-care hospitalization services that now can be provided within community hospitals that are being provided in API. It is important to recognize this as a form of privatization. MR. MAJOROS pointed out that there will be a primary focus on the implementation of these services in the Anchorage bowl area because there are no inpatient psychiatric services of this nature to serve the involuntary patients in the Anchorage area. Approximately 85 percent of the admissions to API are from the Anchorage bowl area; there is a very strong need to provide this service within the Anchorage area. The services will also extend to other parts of the state, including Fairbanks, Juneau and some of the more rural areas. MR. MAJOROS noted that there are problems with the current law in the perceived lack of clarity on eligibility for the current program and payment practices. The hospitals need to know under what circumstances they can bill for services and receive payment for those services. MR. MAJOROS stated that the board is very supportive of the issue of voluntary status. Right now the statute encourages people to convert from involuntary to voluntary status, and it does not make sense to the board that someone can say to a patient "we want you to convert over to voluntary status, but in the process of doing that, you lose the possibility that the state will reimburse for the service." They are in favor of this service being available to people who are involuntarily committed, and those who come voluntarily, but meet those same criteria which is danger to self or others or gravely disabled besides being mentally ill. MR. MAJOROS stressed the importance of the partnership that has gone into the construction of this bill. There have been six or seven meetings over the past two weeks between representatives of the DHSS, the mental health board, the mental health trust authority, the hospital association, consumers, advocates of disability law, and they have worked hard to bring about a consensus on the draft bill. The changes could go on indefinitely, but he encouraged the committee to move the bill forward in its present form because it will make a significant improvement. It is an appropriate compromise. MR. MAJOROS stated that this bill allows services to be given to consumers closer to home and closer to their natural support systems. It would allow them to receive these services more readily in community hospitals throughout the state including rural areas. This bill is cost effective, and there are leveraged resources that are being applied to this. There is no state fiscal impact initially; the services will be provided exclusively through federal funds. Mr. Majoros also pointed out that community hospitals are able to bill Medicaid so it will create an additional revenue source that doesn't presently exist for API. Number 0487 JEFF JESSEE, Executive Director, Alaska Mental Health Trust Authority, testified via teleconference from Anchorage saying this is an important bill to the trustees. They have worked to develop a community-based system to take the place of some of the API beds, and this legislation is essential to carry out the goals of that effort. It will bring clarity to the funding mechanism that they need in order to assure both the beneficiaries and the agencies and corporations that they are hoping will take on these responsibilities, that the money will follow the client from the state hospital to the community-based designated evaluation and treatment facility. MR. JESSEE agrees there could be improvements to HB 162, but time is short, and by adding amendments at this point the bill would not be consistent with the one in the Senate, and they are concerned that that could result in the bill not passing. The trustees have expressed their willingness to continue to look at how this bill is implemented. As they get data and information about the impact of these areas that people have expressed concerns about, then they will be in a better position to come back and jointly recommend any necessary changes to the legislation in the future. MR. JESSEE encouraged them to pass the bill out of the committee, and he hopes it passes this year. They are planning to begin spending several million dollars of federal funds, and part of what they have assured Senator Stevens is that they will have the infrastructure in place to implement these community services. This bill is a very essential part of that effort. Number 0682 REPRESENTATIVE BRICE asked Mr. Jessee what the trust authority is doing to ensure that hospitals that are currently providing designated evaluation and treatment programs aren't turning away people who are in crisis. MR. JESSEE answered the number one thing that is being done is the attempt to pass this legislation to bring more clarity to the funding role for designated evaluation and treatment. Once there is clarity as to how one component fits into the overall continuum of care, then they can start to integrate the other services that have to work together in tandem with that. This bill provides, at this point, the best delineation of that for designated evaluation and treatment that they have been able to develop. Number 0919 JANET CLARK, Director, Division of Administrative Services, Department of Health and Social Services, came forward to testify. She reiterated how important designated evaluation and treatment are to the long-range plan. They have developed a five-year plan that has three components: It deals with the building part of API and providing a new facility at API; the second component deals with the actual downsizing of the API hospital from 79 to 54 beds, and the third piece is the community piece which designated evaluation and treatment is just one piece. MS. CLARK noted that the fiscal note shows that in fiscal year (FY) 2000 and FY 2001 they have secured federal funds to reconfigure the community mental health system. She referred them to page 2 of the fiscal note. More than $1 million outlined in the governor's budget are federal funds that would go toward designated evaluation and treatment. Those federal funds are available again in FY 2001 to fully implement this reconfiguration. In FY 2002 the federal funds are not available, so the DHSS will be back in front of the legislature saying now that they have been able to reconfigure services, the legislature will need to consider that funding request at that time. Number 1071 PAT CLASBY, Alaska State Hospital and Nursing Home Association, came forward to testify in support of HB 162. They were one of the groups at the meetings in the past two weeks. The committee substitute is a compromise of that group who has met in the last two weeks. They all would probably have liked to have gotten more in the bill, but they are proud of the fact that they have a bill that they can all agree on and support and hope that the legislature moves it forward. Number 1130 REPRESENTATIVE BRICE asked how will the hospitals collect their bills on someone who can't pay. He really is asking them to say they would appreciate some sort of sliding fee scale so the hospitals don't end up paying the whole bill. MS. CLASBY said the hospitals do want to be protected financially as they provide the services. This bill has come a long way to increase the kind of financial situation those hospitals were in prior to getting this bill introduced as far as getting reimbursed from the state. Perhaps the Finance Committee can look at that. They would have liked a higher income limit. Number 1309 REPRESENTATIVE BRICE made a motion to move CSHB 162, version 1-LSO761\H, Lauterbach, 4/29/99, from the committee with individual recommendations and attached fiscal notes. Number 1320 CO-CHAIRMAN COGHILL commented that they are expanding an entitlement here. With the questions and expectations that federal government monies are going to come, and they are obligating a future legislature. He doesn't object to moving it, but he might object on the floor. CO-CHAIRMAN DYSON added that whatever is ongoing is subject to appropriations by the legislature. There are no commitments beyond that. There being no objection, CSHB 162(HES) moved from the House Health, Education and Social Services Standing Committee.
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