Legislature(2011 - 2012)BUTROVICH 205
02/15/2012 01:30 PM Senate HEALTH & SOCIAL SERVICES
| Audio | Topic |
|---|---|
| Start | |
| SB134 | |
| SB55 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 55 | TELECONFERENCED | |
| += | SB 134 | TELECONFERENCED | |
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.