Legislature(2013 - 2014)CAPITOL 106

03/11/2014 03:00 PM House HEALTH & SOCIAL SERVICES


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= HB 301 AUTOPSIES AND DEATH CERTIFICATES TELECONFERENCED
Moved CSHB 301(HSS) Out of Committee
+= HB 214 MENTAL HEALTH PATIENT RIGHTS & GRIEVANCES TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
        HB 214-MENTAL HEALTH PATIENT RIGHTS & GRIEVANCES                                                                    
                                                                                                                                
3:14:55 PM                                                                                                                    
                                                                                                                                
CHAIR HIGGINS announced that the  next order of business would be                                                               
HOUSE BILL  NO. 214,  "An Act relating  to mental  health patient                                                               
rights, notifications, and grievance procedures."                                                                               
                                                                                                                                
REPRESENTATIVE  KELLER  moved  to adopt  the  proposed  committee                                                               
substitute  (CS)  for  HB   214,  labeled  28-LS0869\C,  Mischel,                                                               
3/7/14, as the  working draft.  There being no  objection, it was                                                               
so ordered.                                                                                                                     
                                                                                                                                
3:15:29 PM                                                                                                                    
                                                                                                                                
THOMAS STUDLER, Staff, Representative  Pete Higgins, Alaska State                                                               
Legislature, stated that  the proposed bill was  "a mental health                                                               
patient  rights  and  grievance  bill."     He  stated  that  the                                                               
committee substitute,  Version C,  had some  significant changes.                                                               
He  said  that  Section  1  of the  proposed  bill  had  remained                                                               
unchanged.  Directing  attention to Section 2,  he explained that                                                               
the records  could be made  public during the appeal  process, so                                                               
this  clause  was added  to  maintain  the confidentiality.    He                                                               
explained that  in Section 3,  AS 47.30.840(a)(5) was  amended to                                                               
include "except  as provided  in (14)  of this  subsection" which                                                               
would allow a  person being evaluated by in-patient  care to have                                                               
visitors at  reasonable times.   He reported that  paragraph (13)                                                               
had  been   amended  by  removing,   "employed  by   and  clearly                                                               
identified  by  an  evaluation facility  or  unit  or  designated                                                               
treatment facility or unit," and would  now allow the right for a                                                               
designated  representative  who  was   not  an  employee,  as  an                                                               
advocate,  when filing  a grievance.   He  stated that  paragraph                                                               
(15) had  been added,  "has the right  to confidentiality  of the                                                               
person's record  unless the  person has  consented in  writing to                                                               
the release  of the records."   He moved on  to Section 4  of the                                                               
CS,  which replaced  the 24  hour call  center with  "a telephone                                                               
call center."   He noted  that it was  also possible to  call 211                                                               
for assistance or an advocate.   He shared that paragraph (3) was                                                               
amended  by removing  "to  an impartial  body  designated by  the                                                               
department" which gives the  authority for administrative appeals                                                               
to the  Office of  Administrative Hearings  so that  it comported                                                               
with Section 2.  He noted  that paragraph (6) was amended, adding                                                               
"by the department"  for the records review and  maintenance.  He                                                               
explained   paragraph    (7)   which   added    "maintenance   of                                                               
confidentiality of  the grievance  records, including  the appeal                                                               
documents  and decisions,  unless  the  grievance provides  prior                                                               
written  consent to  release  some  or all  of  the records;"  to                                                               
clarify that  the records  were confidential.   He  detailed that                                                               
paragraph (8)  was added, as  this was a process  for designating                                                               
the grievances by  categories.  He explained that  Category 1 was                                                               
a grievance related  to the physical or  social environment under                                                               
the control of  the facility; Category 2 was  a grievance related                                                               
to  patients'  rights,  and  Category 3  was  a  grievance  which                                                               
alleged that a criminal act had  occurred.  He offered his belief                                                               
that  the categorical  breakdown  "separated the  wheat from  the                                                               
chaff."                                                                                                                         
                                                                                                                                
3:20:53 PM                                                                                                                    
                                                                                                                                
CHAIR HIGGINS  stated that  the facilities  could handle  many of                                                               
the grievances  within the facility, and  that the administration                                                               
would deal with a review of the worst offenses.                                                                                 
                                                                                                                                
MR.  STUDLER explained  that AS  47.30.847(b)(1)  was amended  by                                                               
removing "patient  records" and  adding "patient's record  of the                                                               
admission or an administrative file  for the patient," to relieve                                                               
confusion that  the grievance  could be  placed into  the medical                                                               
records.  He  directed attention to AS  47.30.847(b)(3) which was                                                               
amended by  adding "for a  category 2 and 3  grievance, delivered                                                               
to   the  department   with  24   hours."     He  said   that  AS                                                               
47.30.847(b)(4)  had   been  deleted.     He  reported   that  AS                                                               
47.30.847(c)  had  been  amended   to  change  business  days  to                                                               
calendar days  for a  written response to  a grievance,  and then                                                               
the review  by the  commissioner was  changed from  five business                                                               
days to thirty  calendar days.  He said that  AS 47.30.847(d) had                                                               
been deleted.   Directing attention  to AS 47.30.847(f),  he said                                                               
that it  was amended by  changing "quarterly" to  "annual" report                                                               
and AS  47.30.847(f)(1) was amended,  adding "category 1,  2, and                                                               
3."   He reported  that AS 47.30.847(g)  was amended  by changing                                                               
the "biennial" report to an  "annual" report from the department,                                                               
as  well as  changing  "type"  to "category."    He concluded  by                                                               
stating that  Section 6 was added,  repealing AS 47.30.660(b)(13)                                                               
which   had    delegated   department   authority    to   private                                                               
institutions.                                                                                                                   
                                                                                                                                
3:24:33 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON directed attention to  page 4, line 24, and                                                               
asked for clarification.                                                                                                        
                                                                                                                                
MR. STUDLER replied  that, in the originally   proposed bill, the                                                               
grievant had  five days to  appeal to the commissioner  after the                                                               
proposed  resolution by  the institution,  and the  CS would  now                                                               
allow thirty days for appeal to the commissioner.                                                                               
                                                                                                                                
REPRESENTATIVE SEATON, referring to page  4, line 21, asked about                                                               
the sequence for five calendar days.                                                                                            
                                                                                                                                
MR. STUDLER explained  that those five days referred  to the time                                                               
frame  for  the  institution  to report  its  resolution  to  the                                                               
department.                                                                                                                     
                                                                                                                                
CHAIR  HIGGINS   directed  attention  to  the   flow  charts  for                                                               
Grievance Procedures [Included in members' packets].                                                                            
                                                                                                                                
MR. STUDLER addressed  the flow chart titled  "Current in Statute                                                               
AS.47.30.847  Grievance   Procedure,"  explaining  that   it  was                                                               
"pretty simplistic"  as it  started with  the patient's  right to                                                               
file a grievance,  which was sent to the  evaluation facility for                                                               
a  formal  grievance  procedure  inside  the  facility,  and  was                                                               
concluded with  an evaluation by  a designated staff member.   He                                                               
pointed  to a  second flow  chart, titled  "CS HB  214 Version  C                                                               
Grievance Procedure."   This proposed procedure  would begin with                                                               
an  approved,  standardized DHSS  grievance  form  and policy  to                                                               
avoid any  confusion.  The  notice of grievance process  would be                                                               
standardized, and  the complaint box  would be reviewed  daily by                                                               
the facilities,  which would  maintain a  complete record  of all                                                               
the documents as the complaint moved  forward.  He noted that the                                                               
facility  must  respond to  category  2  and  3 complaints  to  a                                                               
department  within  24  hours,  as  well  as  responding  to  the                                                               
complainant  within five  calendar days.   This  response to  the                                                               
complainant  must include  a description  of the  appeal process,                                                               
with  an electronic  copy sent  to DHSS.   The  complainant would                                                               
then  have  30 calendar  days  to  appeal  this response  to  the                                                               
commissioner.    After  this  review  by  the  commissioner,  the                                                               
complainant  could  make   a  final  appeal  to   the  Office  of                                                               
Administrative  Appeals,  which  he  described  as  "a  fair  and                                                               
impartial board that has no dog in this fight."                                                                                 
                                                                                                                                
MR. STUDLER said:                                                                                                               
                                                                                                                                
     the reasonable  minds, I  know, will  bear out  on this                                                                    
     and  that we  will  have a  good,  fair, and  impartial                                                                    
     process that  an individual who  is in a  mental health                                                                    
     facility, and  most certainly in a  diminished capacity                                                                    
     at that time, has the right  to file a grievance and is                                                                    
     being given  the right  guidance to  file that  to make                                                                    
     sure that their rights are, in fact, protected.                                                                            
                                                                                                                                
3:29:52 PM                                                                                                                    
                                                                                                                                
CHAIR HIGGINS opened public testimony.                                                                                          
                                                                                                                                
3:30:28 PM                                                                                                                    
                                                                                                                                
FAITH  MYERS, Volunteer  Mental Health  Advocate, reading  from a                                                               
prepared statement,  shared that both  the States of  Georgia and                                                               
Maine had made extensive improvements  to the psychiatric patient                                                               
grievance procedure laws  and rules, and now had  top ratings for                                                               
quality of psychiatric patient care.   She stated her support for                                                               
proposed CSHB 214.                                                                                                              
                                                                                                                                
3:31:37 PM                                                                                                                    
                                                                                                                                
DORRANCE COLLINS, Volunteer Mental  Health Advocate, reading from                                                               
a prepared statement, stated that  the Alaska psychiatric patient                                                               
grievance law was a "throwback to  the methods that were used 100                                                               
years ago."   He referenced a letter from 2010  by the Disability                                                               
Law Center which  stated that the law was  "inadequate to protect                                                               
the  rights  of  mental  health patients  to  file  a  meaningful                                                               
grievance."   He  referenced  a  letter written  in  2007 by  the                                                               
Alaska  Mental  Health  Board, the  Alaska  Mental  Health  Trust                                                               
Authority Board  of Directors, and  the Anchorage chapter  of the                                                               
[National  Alliance  on  Mental  Illness],  which  called  for  a                                                               
revision of the  law as it was "inadequate to  protect the rights                                                               
of mental  health patients to  file a meaningful grievance."   He                                                               
declared his support for the proposed HB 214.                                                                                   
                                                                                                                                
3:32:48 PM                                                                                                                    
                                                                                                                                
DON  ROBERTS  stated his  support  for  proposed  CSHB 214.    He                                                               
declared that there were strong  emotions from the patients as it                                                               
was about their  livelihood and their treatment  as citizens, and                                                               
that any  "coercive authority of  the state to  restrict people's                                                               
movements" should be addressed.                                                                                                 
                                                                                                                                
3:33:47 PM                                                                                                                    
                                                                                                                                
SCOTT CALDER expressed  his support for the proposed  CS, and the                                                               
external  review  and  appeal,  especially "in  areas  where  the                                                               
coercive  power  of  the  state  is  involved."    He  asked  the                                                               
committee to  review page  4, line  26, of  the proposed  CS, and                                                               
suggested that  the period to  file an  appeal or a  grievance be                                                               
extended beyond the one year, as written.                                                                                       
                                                                                                                                
3:35:25 PM                                                                                                                    
                                                                                                                                
BARBARA  HENJUM, Acting  Director,  Central  Office, Division  of                                                               
Behavioral  Health, Department  of  Health  and Social  Services,                                                               
expressed that  her division had some  thoughts for consideration                                                               
with the proposed CS, Version C.   She reasserted the DHSS belief                                                               
that the  current statutory protections  and agency  policies and                                                               
procedures   of   federal,   state,  treatment   providers,   and                                                               
accreditation   agencies   adequately  afforded   the   necessary                                                               
protections for  mental health patients.   Directing attention to                                                               
Version  C,   she  stated   that,  as   Section  6   repealed  AS                                                               
47.30.660(b)(13),  this would  eliminate the  ability of  DHSS to                                                               
operate   designated  evaluation   treatment  and   stabilization                                                               
facilities.  She  noted that this would  eliminate these services                                                               
at Fairbanks  Memorial Hospital, Bartlett Regional  Hospital, and                                                               
other hospitals.   She  asked that  this repeal  be reconsidered.                                                               
She  directed attention  to page  3, lines  12-13, and  suggested                                                               
that  the  grievance  process  should  be  directed  at  a  state                                                               
operated psychiatric  hospital, a  unit designated by  DHSS under                                                               
regulations,  or  a designated  treatment  facility,  and not  at                                                               
community mental  health centers  where constituents  were served                                                               
in a voluntary or outpatient program.                                                                                           
                                                                                                                                
MS.  HENJUM asked  that the  multi-tiered  grievance approach  be                                                               
thoroughly deliberated  by the House  Health and  Social Services                                                               
Standing Committee.   She declared  that criminal acts  should be                                                               
further defined under category 3,  and the intent of the language                                                               
should  be clarified.   She  emphasized that  alleged crimes  for                                                               
physical   or  sexual   abuse  should   immediately  engage   law                                                               
enforcement for  investigation, as  these were not  grievances to                                                               
be treated by the department  or the treatment entity, and should                                                               
be treated  as alleged criminal acts.   She said that  category 1                                                               
grievances   involving   the  designated   treatment   facility's                                                               
physical  or  social environment  should  also  be clarified,  as                                                               
these  minor   complaints  could   be  handled   immediately  and                                                               
informally  in-house.   She offered  her belief  that a  one year                                                               
period to  allow for filing  of a grievance seemed  excessive, as                                                               
it was very difficult to  investigate a grievance filed 11 months                                                               
after  a patient  left  the  hospital.   She  declared that  this                                                               
provision  delayed  justice  for  the patient,  as  well  as  the                                                               
hospital and its staff.  She  said that subsequent appeals to the                                                               
commissioner and  the Office of Administrative  Hearings provided                                                               
additional  levels  of  intervention; however,  she  asked,  what                                                               
meaningful  remedy would  be  available at  that  point for  many                                                               
category 1 offenses,  especially one year after  the discharge of                                                               
the patient.   She said  that alleged  crimes were and  should be                                                               
immediately referred to law enforcement  outside the provider and                                                               
the department.   She declared that most other  matters should be                                                               
handled immediately  and informally within the  treatment entity,                                                               
if possible, as was currently the case.                                                                                         
                                                                                                                                
CHAIR  HIGGINS asked  Ms.  Henjum to  repeat  the consequence  of                                                               
repeal of AS 47.30.660(b)(13).                                                                                                  
                                                                                                                                
MS.  HENJUM  said  that  this  was  the  authority  for  DHSS  to                                                               
designate   evaluation  and   stabilization  programs   in  other                                                               
hospitals,  and  that its  repeal  would  remove the  ability  to                                                               
provide those acute care services closer to the patient's homes.                                                                
                                                                                                                                
CHAIR HIGGINS asked for her  to provide her testimony in writing.                                                               
He offered  his understanding  that deletion  of this  would send                                                               
the grievances up  the chain of command, instead  of dealing with                                                               
them in-house.                                                                                                                  
                                                                                                                                
3:42:30 PM                                                                                                                    
                                                                                                                                
STACIE KRALY, Chief  Assistant Attorney General-Statewide Section                                                               
Supervisor,  Human  Services  Section, Civil  Division  (Juneau),                                                               
Department of  Law, opined that Chair  Higgins' understanding for                                                               
the repeal  of AS  47.30.660(b)(13) may have  been the  intent of                                                               
the amended  CS, but  it had a  much broader  statutory authority                                                               
for DHSS  to enter into  contracts with patient facilities.   She                                                               
explained  that, as  Alaska Psychiatric  Hospital  (API) was  the                                                               
only  state  hospital, a  system  of  care  had been  created  by                                                               
contracting  with local  provider community  hospitals for  those                                                               
mental health services  similar to API.  She  detailed that these                                                               
services could  include a 72  hour commitment for  evaluation and                                                               
determination for  involuntary commitment,  as well  as a  30 day                                                               
stay.   She  pointed out  that this  repeal had  "wiped out  that                                                               
entire  system" as  it was  the statutory  authority for  DHSS to                                                               
delegate these agreements with these  providers.  She stated that                                                               
this  repeal  was much  broader  than  what  was intended.    She                                                               
suggested that there could be a "more surgical way to do that."                                                                 
                                                                                                                                
CHAIR HIGGINS  asked for a  written suggestion,  declaring "we're                                                               
here to  work with  you, too,  'cause we want  to make  sure this                                                               
works."                                                                                                                         
                                                                                                                                
3:45:05 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  KELLER  expressed  his  support  of  the  repeal,                                                               
opining that "it highlights a  very interesting subsection of law                                                               
that's a pretty broad delegation of authority."                                                                                 
                                                                                                                                
MS. KRALY, in  response to Representative Tarr, said  that it was                                                               
AS 47.30.660(b)(13).                                                                                                            
                                                                                                                                
REPRESENTATIVE  SEATON offered  his  belief that  the system  had                                                               
been changed to  allow this authority because there  was no local                                                               
treatment.                                                                                                                      
                                                                                                                                
CHAIR HIGGINS stated  a need for the language change.   He stated                                                               
that  the  purpose   of  proposed  HB  214  was   not  to  hinder                                                               
facilities, but to make things better for everyone.                                                                             
                                                                                                                                
3:47:13 PM                                                                                                                    
                                                                                                                                
CHAIR HIGGINS closed public testimony  and said that HB 214 would                                                               
be held over for appropriate changes.                                                                                           

Document Name Date/Time Subjects
HB301CS(HSS)-DHSS-SMEO-03-04-14.pdf HHSS 3/11/2014 3:00:00 PM
HB 301
CS HB 214 Version C.pdf HHSS 3/11/2014 3:00:00 PM
HB 214
CS HB 214 Explanation of changes.pdf HHSS 3/11/2014 3:00:00 PM
HB 214
CSHB 214 Section Analysis.pdf HHSS 3/11/2014 3:00:00 PM
HB 214
Current Grievance Procedure.pdf HHSS 3/11/2014 3:00:00 PM
HB 214 New Grievance Procedure 2 28 2014.docx HHSS 3/11/2014 3:00:00 PM
HB 214
Reports by Facilities.pdf HHSS 3/11/2014 3:00:00 PM
HB214Testimony 2 11 2014.PDF HHSS 3/11/2014 3:00:00 PM
HB 214