Legislature(2019 - 2020)BUTROVICH 205
02/13/2019 01:30 PM Senate HEALTH & SOCIAL SERVICES
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| Audio | Topic |
|---|---|
| Start | |
| Overview: Alaska Psychiatric Institute Dhss Division of Behavioral Health | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE HEALTH AND SOCIAL SERVICES STANDING COMMITTEE
February 13, 2019
1:33 p.m.
MEMBERS PRESENT
Senator David Wilson, Chair
Senator Gary Stevens
Senator Cathy Giessel
Senator Tom Begich
MEMBERS ABSENT
Senator John Coghill, Vice Chair
OTHER LEGISLATORS PRESENT
Representative Andi Story
COMMITTEE CALENDAR
OVERVIEW: ALASKA PSYCHIATRIC INSTITUTE DHSS DIVISION OF
BEHAVIORAL HEALTH
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
ADAM CRUM, Commissioner Designee
Department of Health and Social Services (DHSS)
Anchorage, Alaska
POSITION STATEMENT: Gave an overview of decision to issue
private contract for the Alaska Psychiatric Institute (API).
ALBERT WALL, Deputy Commissioner
Family, Community, and Integrated Services
Department of Health and Social Services (DHSS)
Anchorage, Alaska
POSITION STATEMENT: Gave an overview of the decision to issue a
private contract for the Alaska Psychiatric Institute.
KATE BURKHART, Ombudsman
Office of the Ombudsman
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Answered questions about the role of the
ombudsman.
JEREMY BARR, Senior Vice President
Wellpath Recovery Solution
Nashville, Tennessee
POSITION STATEMENT: Testified about the contract for Alaska
Psychiatric Institute.
ACTION NARRATIVE
1:33:53 PM
CHAIR DAVID WILSON called the Senate Health and Social Services
Standing Committee meeting to order at 1:33 p.m. Present at the
call to order were Senators Begich, Stevens, Giessel, and Chair
Wilson.
^Overview: Alaska Psychiatric Institute DHSS Division of
Behavioral Health
Overview: Alaska Psychiatric Institute DHSS Division of
Behavioral Health
1:34:05 PM
Chair Wilson announced the Department of Health and Social
Services (DHSS) presentation on the Alaska Psychiatric Institute
by Commissioner Designee Adam Crum and Deputy Commissioner
Albert Wall. He noted that Jeremy Barr and Dr. Kevin Ann
Huckshorn from Wellpath Recovery Solutions would be available
for questions online. Chair Wilson asked the committee to wait
until the end of the presentation for questions and pointed out
that the committee would have another opportunity for DHSS
budgetary questions.
1:35:25 PM
ADAM CRUM, Commissioner Designee, Department of Health and
Social Services (DHSS), Anchorage, Alaska, noted that he had
shared his history of volunteering to work with those in need
during his confirmation hearing. Joining DHSS was an opportunity
to further work with the most vulnerable and to fight for them,
to provide for them, and to protect them. He is responsible for
the patients at the Alaska Psychiatric Institute (API). He was
aware that API had some issues, but he had never seen an
organization in such disarray as API. The current situation is
the result of ongoing neglect and turmoil that has accumulated
over the years, culminating with this recent crisis. Others have
worked diligently to address API's issues, but the methods of
the past have not worked.
1:36:50 PM
COMMISSIONER DESIGNEE CRUM said that, according to their
records, 2010 was the last time API went more than six months
without a major citation or violation. "We, as a state, have
failed. We have failed the patients and those seeking treatment
by having diminished capacity and quality of care. We have
failed the employees by having constant management turnover," he
said. Employees are fearful of being injured or losing their
professional licenses. Senator Begich told him that as
commissioner, he is the voice and advocate for those who do not
have a voice. By addressing head-on this very serious issue at
API, he is working to give voice to those in need. He cannot
stand by and watch patients and staff struggle when he has the
ability to do something. They have put forward a plan with
defined deliverables that will bring stability, training,
guidance, and support to API.
1:38:09 PM
ALBERT WALL, Deputy Commissioner, Family, Community, and
Integrated Services, Department of Health and Social Services
(DHSS), Anchorage, Alaska, said he would walk them through the
gravity of the issues at API and exactly how they came to the
decision to contract.
MR. WALL gave an overview of the presentation:
1. Staff and Patient Safety
2. Inability to Fulfill Its Mission
3. Pending Legal Issues with Extreme Risk of High Cost to
the State
4. Ethical Treatment of Alaskans.
MR. WALL said he wanted to start with a brief history of API to
underscore a few issues. They knew there were many problems
coming. They knew there was a bed shortage. They knew there were
patients backing up in hospitals, but they did not know the full
extent. In 1962, API was built with 225 beds. A 1992 study said
that to facilitate inpatient psychiatric care in the state
properly, 162 beds were needed. The old building was not fully
utilized and that is what the study indicated. A group met in
1992 about the question of funding those beds and created a
compromise called the Alyeska Accord. All parties agreed the
state could get by with 114 beds. In 1993, DHSS submitted a
Certificate of Need for 114 beds, but only 72 were funded. From
the start API has not been enough. It was not enough then, and
it is not enough now. It is a highly volatile focal point. It is
always in the news. It is the epicenter of inpatient psychiatric
care for the state, but it is not the entire system of care, and
the entire system of care is in jeopardy as well.
MR. WALL said that in 2005 the facility expanded from 72 to 80
beds, well below the number in the 1992 study and with an
increase in population. More than one study a year since 2005
have had the same findings with growing alarm each year. They
have repeatedly warned of the crisis and offered solutions and
none worked. Some progress has been made at API to rectify
certain circumstances, but it was too little, too slow, and too
late.
MR. WALL said that the Centers for Medicare and Medicaid (CMS)
services warned in 2017 that they would remove API's
certification if it was not substantively in line with the plan
of correction. There have been repeated assaults and injuries
and at the present time, only enough staff for 35 beds out of 80
in the building.
MR. WALL said the culmination of this was that in January of
this year, at what was supposed to be the last CMS survey team
onsite to approve compliance with the recently accepted plan of
correction, an unreported assault that caused a finding of
Immediate Jeopardy was discovered. "The commissioner said enough
is enough. We need help. We need expert help, and we need it
immediately," said Mr. Wall.
MR. WALL said he wanted to talk about external forces that have
an impact on operations and care. All eyes are on API. The media
has a lot to say about it. Everyone has an opinion, but there
are forces with authority over API.
MR. WALL said the level of scrutiny is intense, sometimes
demoralizing to staff, but the organizations are there to keep
them on point with issues of safety of patient care.
MR. WALL reviewed the role of Occupational Safety and Health
Administration (OSHA):
• Federal agency that sets and enforces protective
workplace safety and health standards.
• May levy fines on agencies not in compliance.
MR. WALL said OSHA is primarily concerned with staff safety. API
has had OSHA findings with plans of correction.
MR. WALL reviewed the role of the Alaska ombudsman:
• Among many services this agency investigates
complaints that involve state agencies and determines
appropriate remedies.
• The Alaska Ombudsman initiated an investigation in
July of 2018 and a preliminary report of findings was
given to the Department yesterday evening.
MR. WALL said there were findings in that report, and they look
forward to conversations with the ombudsman as they move
forward.
MR. WALL reviewed the role of the Joint Commission:
• Is a national, not-for-profit accrediting organization
which currently accredits nearly 21,000 health care
organizations.
• Provides peer-to-peer standards for members, joint
evaluations, hold each other to professional
standards, and certify each other by those standards.
• May inform the Centers for Medicaid and Medicare
Services of deficiencies.
MR. WALL said the Joint Commission can remove accreditation,
which affects state licensure. They can act as agents of CMS
under certain circumstances, and they can give a report of
findings.
MR. WALL reviewed the state's Health Facilities Licensing and
Certification:
• To operate in Alaska, a hospital must be licensed by
the state under AS 47.32.
• The Department sets standards and requirements for
licensure (through state regulations).
• If API does not maintain state licensure, it cannot
operate.
MR. WALL reviewed the role for Centers for Medicare and Medicaid
Services (CMS):
• Federal agency that provides oversight for healthcare
services that receive federal funding
• API receives approximately $23 million per year in
federal funding (CMS)
• API must meet federal requirements to receive funding
o Conditions of Participation (CoP) (certification
of compliance with the health and safety
requirements)
• Survey: an on-site inspection
o Triggered by a complaint/event or overall
re/certification surveys
MR. WALL said CMS has a very strict survey, or investigation,
process. A survey can happen at any time. It can be triggered by
a complaint, an event, an overall recertification survey, or a
scheduled event. A report is received some time after the
survey, and CMS will work on any deficiencies noted in the
report.
MR. WALL reviewed Conditions of Participation for federal
funding:
• Requirement: API must be in "substantial" compliance
with each Condition of Participation (CoP).
• If a hospital is not in substantial compliance and
does not correct by the deadline, CMS will de-certify
the hospital and terminate its participation in
Medicare and Medicaid.
• Termination results in a complete loss of this federal
funding.
MR. WALL reviewed the three levels of citations that agencies
can give. He noted that it is more complicated than can be shown
on a slide.
Standard Level Deficiency
• Out of compliance with regulation
Condition Level Deficiency
• Very serious
• Hospital is not in substantial compliance with CoP
Immediate Jeopardy
• The hospital's deviation from regulatory standards is
an immediate threat to patient health and safety
MR. WALL explained that the Standard Level Deficiency usually
has to do with proper credentialing or proper documentation. One
finding was that staff responsible for signing biohazard
manifest documents at the time they arrived did not have
evidence of EPA (Environmental Protection Agency) training for
that substance.
MR. WALL said that an example of a Condition Level Deficiency
was a finding that the forensic beds, the criminal restoration
ward or Taku ward, did not meet the new ligature standards. That
meant that there were items on the bed that a patient could use
to harm themselves. New beds had to be purchased for that.
1:50:51 PM
MR. WALL said that Immediate Jeopardy is the showstopper and
shared a definition of Immediate Jeopardy:
"[a] situation in which the provider's noncompliance with
one or more requirements of participation has caused, or is
likely to cause, serious injury, harm, impairment or death
to a resident."
- CMS State Operations Manual
MR. WALL said that CMS and the Joint Commission focus on patient
safety and OSHA focuses on staff safety. On January 29 they did
receive an Immediate Jeopardy finding.
MR. WALL reviewed the steps following a CMS report:
• Statement of Deficiencies is provided to hospital.
• Hospital has 10 calendar days to provide an acceptable
Plan of Correction for each cited deficiency.
• If the hospital doesn't come into compliance by the
deadline, the state agency certifies "noncompliance."
MR. WALL said the negotiation to create an acceptable plan of
correction can take a while. When the commissioner was
appointed, they were under a plan of correction that had not yet
been accepted. The timeline on that is critical. The July CMS
survey had substantial findings. They had 90 days to create a
plan, have it accepted, and then show they were in compliance
with the plan before the survey team came back. When the CMS
survey team returned at the end of 90 days, they found DHSS did
not have a plan and was still out of compliance. The senior
leadership team had resigned at that time and they entered the
second 90-day phase. After the second 90-day phase, there are no
extensions. That was due November 26. On November 30, the survey
team showed up for the final inspection and was in the building
when the earthquake hit. They went home and gave DHSS another 90
days to produce the plan of correction because of the state of
emergency. That is when the commissioner came in and found no
plan of correction and, without continuity in leadership, did
not know what was in the plan in the first place.
MR. WALL reviewed API plans of correction:
• API has been under 2 Plans of Correction in the last
12 months, and 2 OSHA citations pending resolution.
• API has had 13 site visits from regulatory agencies in
the last 12 months.
• The most recent two surveys identified 3 Condition
Level Deficiencies and an incident of Immediate
Jeopardy.
• Most recently, the incident of Immediate Jeopardy was
identified on January 29th, after API had submitted
its final Plan of Correction.
MR. WALL repeated that a finding of Immediate Jeopardy is a
showstopper--someone is in immediate danger of harm. That
incident involved unwanted contact between two patients and is
still under investigation. They are still waiting for the final
report from CMS.
MR. WALL said they were successful in certain regards. They had
made some movement. They had had until the end of December to
complete the plan of correction and get approval from CMS, which
they did. After over 180 days of working with the federal
government, a plan of correction was accepted in early January.
He thought they were headed in the right direction, and then the
survey team came back and found this.
MR. WALL said he wanted to segue between the conversation about
oversight and investigations and regulatory bodies and take them
to where the rubber hits the road, what it looks like in the
hospital. He asked what an investigatory body looks for when it
comes into a hospital. The biggest issue they have had is with
seclusion and restraint. He reviewed the following CMS standard:
• All patients have the right to be free from physical
or mental abuse, and corporal punishment.
• All patients have the right to be free from restraint
or seclusion, of any form, imposed as a means of
coercion, discipline, convenience, or retaliation by
staff.
• Restraint or seclusion may only be imposed to ensure
the immediate physical safety of the patient, a staff
member, or others and must be discontinued at the
earliest possible time.
42 CFR ? 482.13
MR. WALL said it is a difficult balance in an inpatient
psychiatric unit because patients are inherently at times
dangerous to themselves and others. If they are in a high state
of agitation, sometimes restraint and seclusion are necessary,
but only for the safety of the patient or staff member and must
be discontinued at the earliest possible time.
MR. WALL reviewed the reports about seclusion and restraint at
API:
• Since 2011, there have been 7 separate independent
reports indicating API uses seclusion & restraint
inappropriately and/or excessively.
• Since 2017, API has been cited at least 7 separate
times for deficiencies including violations of patient
rights and use of seclusion & restraint.
• In June of 2018, the Alaska Ombudsman initiated an
investigation into API based on 3 allegations:
1. API does not take reasonable and necessary action
to prevent and/or mitigate the risk of harm to
patients from use of force by API staff;
2. API does not take reasonable and necessary action
to prevent and/or mitigate the risk of harm to
patients due to violence by other patients;
3. API does not consistently comply with AS
47.30.825(d) or 42 CFR 482.13(e) in the use of
seclusion and restraint.
1:58:29 PM
MR. WALL said this brings them to the issue of staff safety. He
reviewed the multiple Alaska Occupational Safety and Health
citations:
• Multiple citations by Alaska Occupational Safety and Health
(AKOSH)
o December 2014 findings: API failed to provide its
employees with a safe work environment; and API failed
to maintain its OSHA log from 2011 to 2013, including
not accurately reporting injuries or related
incidents.
o November 2017 findings: 24 reportable incidents during
a 6 month timeframe; and API failed to maintain its
OSHA log and accurately report injuries from 2014-
2017.
• 2015 report found that API is seriously and "dangerously"
understaffed, compensation is too low, and hiring takes too
long. (Dvoskin report.)
• September 2018 report by attorney Bill Evans found that the
hospital was an unsafe work environment for staff
(including a cultural divide on the use of seclusion and
restraints).
• September of 2018 injury rates at API doubled.
• January 29, 2019 surveyors found unreported "immediate
jeopardy" incident.
MR. WALL pointed out that from 2011 to 2017 API was failing to
track and report injuries. There was a litany of reports about
unsafe conditions at API culminating in the incident of
Immediate Jeopardy.
MR. WALL said he went through the stack of reports starting with
2005 and found what he considered the most poignant statement:
November 2011 WICHE Report "Critical area of need"
"The pressures created by the combination of resource
limitations, staffing shortages, recruitment
challenges, admission and census increases, and
limited access to decision support tools all combine
to increase risk for the facility and the patients and
staff of API. This set of challenges has reached
crisis proportions and it is not realistic to approach
these issues with modest adjustments to existing
processes
MR. WALL said that was written in 2011. For the next 8 years
they have attempted to fix these issues with modest adjustments
to existing processes and it has failed to work.
MR. WALL said most reports indicated staffing was a serious
issue:
"Alaska has unique staffing challenges, no doubt far above
other rural communities. Staffing agencies are not readily
available to provide experienced psychiatric nurses. API
went through a period of using frequent mandatory overtime
due to the severe staff shortages." May 2012 WICHE report
"Many of the leadership challenges cited?were related to
difficulties in hiring senior staff." March 2015 Dvoskin
Report
"High-level RN Supervisor staff spend 60-70% of their time
in the nursing office trying to 'call in staff to cover
vacancies for the next shift.'" November 2016 WICHE
Report
MR. WALL said they have all tried to fix this problem. The
legislature tried to fix this problem. The legislature took PCNs
[Position Control Number] from other areas and 102 new PCNs went
into API's budget over the last two years. The issues are very
complex when it comes to this. This morning recruitment was open
for 87 positions.
MR. WALL said there are unique challenges. One is the way in
which staff is classified:
• Classification studies are not performed specific to
API (rather, examine defined job classes across all
departments).
• There has not been a significant review completed of
nurse job classes since the 1980s.
o Some adjustments to salaries were made in 1989,
2001, and 2006.
• Current class study in progress: Phase 2 of Nurses
Review
o Will impact 674 positions, 18 job classes, from 3
departments (DHSS, DMVA, DOC).
o Began October 2018, tentative completion date
estimated March 2019.
• Identified project: reviewing pay structures for
exempt medical professionals (including
psychiatrists).
o No current implementation date.
MR. WALL said that over time the system has been a problem. No
differentiation is made between all nurses and nurses at a
psychiatric institute. Licensed professionals are faced with
working for 30 percent less pay as well as being subject to
violence and trouble among the staff, or they can go across the
street to two other hospitals and get paid more. He said someone
must be called ideologically to work at API. There has been no
significant review of the nurse jobs classes, which is where the
greatest need is. There have been salary increases, but not a
whole classification study. There is a classification study
going on now, but it is an effort that is too little, too late.
He said we have arrived at a place of crisis.
2:03:09 PM
MR. WALL said some encouraging things have happened and reviewed
recent recruitment efforts:
• GGU All Nursing Department staff are eligible for a
specialized alternate workweek since July of 2016.
• GGU Health Practitioners I-II received a step increase
effective August 2016.
• GGU Health Practitioner I's are eligible for a $15,000
sign on bonus effective February of 2018.
• SU Nurse IIIs were converted to overtime eligible in
June 2018.
• GGU Health Practitioners I's can volunteer for a
weekend shift and receive a flat rate of $500
effective July of 2018.
• Sign on bonus of $10,000 was offered for Nurse
positions beginning September 2018.
MR. WALL said the pay and bonus improvements happened very
recently and have not made a significant impact yet. They hired
six new nurses and lost six nurses.
MR. WALL said not all problems have to do with the whole
classification. He presented a case study of a position that
pays too little to attract anyone:
Occupational Therapist position has been vacant since
December 19, 2017; in active recruitment for over a year
with 0 qualified applicants.
• Position requirements include national board
certification as occupational therapist and Alaska
state licensure.
• Position is only range 17.
• API requested job classification study in 2018. None
has been conducted.
MR. WALL reviewed clinical vacancies at API:
Current unfilled clinical positions:
• 30 nurse vacancies (including Director of Nursing);
• 5 psychiatrist vacancies (including Director of
Psychiatry);
• 1 medical officer vacancy (API's only general
practitioner);
• 3 psychologist vacancies; and
• 4 forensic evaluator vacancies.
Locum Tenens/contract staff
• Initial nurse contract for 90 days.
• Must train and onboard (approximately 3 weeks)
followed by additional education prior to being on the
floor.
• Generally unsuccessful and depart API quickly.
MR. WALL said many of these, with the exception of the nurses,
have had no applicants. When people see ongoing trouble in an
organization, new applicants don't want to work there. A medical
doctor looking at where to work would have to think hard about
whether to work there.
COMMISSIONER DESIGNEE CRUM said overall morale is not helped
when newspapers call API the worst hospital in the United
States.
MR. WALL said he has talked about some of the challenges they
face with the regulatory oversight. Another problem is an even
deeper issue, a human, ethical question. Two types of
individuals go to API. Sometimes they are there for a civil
commitment. Sometimes criminal charges bring someone to API, a
forensic patient. He reviewed the statutory obligation for a
forensic patient:
Forensic Psychiatric Services AS 12.47.010
Forensic patient:
• Has been charged with a crime.
• Suspected to be incompetent to stand trial.
• Two stages:
1. Must be evaluated to see if they are incompetent.
2. If found incompetent, is sent to API for
restoration" to competency. Can be recommitted
to API for multiple periods of restoration.
• If "restored," criminal case proceeds.
• Otherwise, person is deemed "unrestorable" and
criminal case is dismissed.
o (following dismissal, various possible outcomes
including unconditional release or civil
commitment).
• Often, but not always, in custody at DOC.
• Criminal case cannot go forward until competency
proceedings resolve.
MR. WALL said they must evaluate and provide care to a forensic
patient as a statutory requirement. It is complicated and they
are not in compliance. The examination requires two forensic
psychiatrists. They don't have two forensic psychiatrists in the
state. They simply don't have the staff and beds to treat
individuals in this category. Unfortunately, an unconscionable
thing occurs. These individuals end up in jail without
diagnosis. They have charges but no conviction. They sit in jail
for a long time without treatment.
2:08:40 PM
MR. WALL presented information on the API forensic unit. He
noted that these were yesterday's figures:
• API has only 10 forensic beds (Taku unit).
• Waitlist for initial evaluation: 54
• Waitlist for admission: 28
• Multiple judges threatening to hold state in contempt
for failure to evaluate/admit for restoration.
• Due process challenges to delayed evaluation and
admission (resulting in potential dismissal of
criminal case).
• Defendants being held longer in DOC waiting for API
than the length of their potential sentence if
convicted.
• Statutes require DHSS to conduct restoration.
• Statutes do not require that DHSS perform the
evaluations, but API has traditionally been held
responsible for them.
MR. WALL said they have evaluated 28 people who need treatment
who can't get in the hospital because they have no place to put
them. "There is a very in-depth legal and financial question
that we have with this problem, but I want to sit on the ethical
thing for just a second and ask you, if you walk into a
situation that we did, and you are appointed to take care of a
group of people, and you find 50, 60, 70, 80 plus sitting in
jail without treatment and some of them without conviction, and
no place to go, what is your choice and what do you do. We have
a very limited bandwidth to take care of people. It is our moral
obligation to do so," he said.
MR. WALL said that on the legal side, they end up in court. They
have an ongoing case that he cannot talk much about, but it has
immense ramifications. He reviewed legal involvement on the
civil and criminal side:
• October 19, 2018 DLC complaint filed [CIVIL]
o Alleging due process violations for those facing
civil commitment being held for prolonged
period without opportunity to be heard; being
held in DOC pending admission to API.
o Seeking injunction for immediate admission to API
for all court-referred patients and for API staff
to conduct evaluations for 30-day commitments
anywhere in the state.
o This case has been consolidated with Public
Defender Agency cases involving delays in civil
commitment evaluations.
• November 2018: Public Defender Agency begins filing
"habeas corpus" motions in criminal cases [FORENSIC]
o Complaining of delay in admission for
restoration. The relief requested is release.
• 2018: Public Defender Agency begins filing motions for
"alternatives to evaluation at designated evaluation
facilities"
o Requesting that the judge order DHSS to
immediately evaluate individuals waiting for
transfer to API.
2:10:29 PM
MR. WALL reviewed Civil Commitments AS 47.30.700:
• Two methods of initiating a civil commitment:
1. "Any adult" petitions a judge
2. A peace officer or
psychiatrist/physician/psychologist applies for
examination.
• If the judge grants the petition, the person is
delivered to an evaluation facility designated by DHSS
to receive a 72 hour evaluation.
o If the facility determines that the person meets
commitment criteria: that is the person suffers
from a mental illness and (1) is gravely disabled
or (2) is a threat to self or others, they will
petition the court for a 30 day commitment;
o If at any time in the process the facility
determines that the person no longer meets
criteria, the person must be released;
o If there is a petition for a commitment, an
evidentiary hearing is held and a superior court
judge determine whether the person can be civilly
committed for up to 30 days, successive
commitment can occur at 90 and 180 days and at
those latter hearings the individual is entitled
to a jury trial. Through this entire process they
are represented by the Public Defender Agency.
• There are only three Designated Evaluation and
Treatment (DET) facilities. Only DET facilities can
perform the 72 hour evaluation.
o API, Fairbanks Memorial Hospital (20 bed, 4
acute), and Bartlett Regional Hospital (12 bed);
o All other facilities including Emergency Rooms
are not designated to provide evaluation and/or
treatment services because they have not applied
to become a DET.
MR. WALL said the system on the civil commitment side is borne
on the back of a single evaluation by a clinician, usually in an
emergency room. The outcome is either someone is a danger to
themselves or others and must go somewhere to get treatment or
someone is not. The hospitals are left in a terrible bind with
patients in the emergency room that they cannot let go but they
also cannot treat. Today 14 people are in that situation, three
of whom are juveniles and two of them are in the Department of
Corrections because they have no other place to put them. So now
people are there without criminal charges.
2:11:45 PM
MR. WALL said that what happens to states in Alaska's situation
is a legal issue. They are obligated by federal and state laws
to take care of inpatient psychiatric patients in a certain way.
They are failing to do so. "And when you fail to obey your own
laws, there are consequences," he said.
MR. WALL presented a slide on the Trueblood case:
Trueblood case federal class action lawsuit for
unconstitutional delays in forensic cases
• 2015 trial resulted in ruling that DSHS was violating
class members' constitutional rights.
• Court ordered the Washington State Department of
Social and Health Services (DSHS) to move individuals
facing criminal charges out of jail and into treatment
facilities within seven or fourteen days when they are
eligible for competency evaluation and restoration
services (respectively).
• Contempt order of July 7, 2016 fined DSHS $500 per day
per person (for exceeding the 7 day deadline) and
$1,000 per day per person (for exceeding the 14 day
deadline).
• As of June 2018, fines for failure to comply with
court orders exceeded $55 million.
• Settlement agreement approved by court December 2018
requires the State to make changes in five substantive
areas:
o competency evaluations; competency restoration
services; crisis triage and diversion support;
education and training; and workforce
development.
CMS decertified (July 2018) loss of $53 million federal
funding per year
• Hospital had been at risk of losing funding since
2015.
• State had recently spent $360 million into state
hospitals and $560 million in mental health spending.
• Federal officials cited hospital for its quality
assessment and improvement program, nursing services,
and safety issues.
MR. WALL said the ramifications of being in their situation are
immense. In the Trueblood case in 2015, the court ordered the
state to pay for patient treatment and at one point, fined the
Washington State Department of Social and Health Services over
$100,000 a day in general funds. As of June 2018, fines for
failure to comply with the court order exceeded $55 million.
That does not include paying for treatment. The settlement
agreement approved by the court in December ordered the state to
designate funding to pay for services. In July 2018 CMS
decertified the hospital and it lost $53 million of federal
funding per year.
MR. WALL said they have two sides of this problem, patient and
staff safety. They also have clinical compliance. They must fix
the problem before the court intervenes and there is the ethical
dilemma of how to care for people with no voice. That is what
they are faced with.
MR. WALL said he would move from the dilemma to the decision to
hire Wellpath. They started talking to contractors early in the
process because when they got into office, there was no plan of
correction. They were out of compliance and being threatened
with decertification, so they sought help.
MR. WALL reviewed what they were looking for in a contractor.
1. To ensure the safety of our staff and patients;
2. To bring the hospital into rapid compliance with
regulatory authorities; and
3. To prepare the facility to increase its bed capacity
to 80 beds by 1 July.
MR. WALL called these goals ambitious, but absolutely critical.
He reviewed the following timeline:
• National Association of State Mental Health Program
Directors was contacted on December 18th.
• Wellpath Recovery Solutions contacted on December
20th.
• Liberty Healthcare Corporation was contacted on
January 8th.
• Noel Rae of NetworxHealth (Virginia Mason Health
System) was met with on January 22nd.
2:16:38 PM
MR. WALL explained that the National Association of State Mental
Health Program Directors (NASHMPD) is the association for states
that run inpatient psychiatric facilities. They have specialists
and can give guidance and give information about what other
states are doing. The conversation in his head at that time was
how were they going to move through this issue, should he hire a
contractor to get the plan of correction together and submitted
to CMS, should he hire a contractor that does some sort of
administrative services oversight of the whole thing, should he
hire a contractor and do a privatization of the whole thing
immediately, what were their options and could they intervene.
MR. WALL said his first contact with Wellpath was not even about
API. It was about health care in other facilities, but it led to
a conversation about that. He asked the same kind of questions
with Liberty Healthcare Corporation on January 8. He met with
Noel Rae of NetworxHealth at API January 22. During this
timeline, each day they were learning more concerning facts
about API. The depth of issue was bigger than they had thought.
MR. WALL said the plan of correction was accepted in early
January. He thought they had more breathing room at this point,
except that on January 29 the CMS survey team returned and had
an Immediate Jeopardy finding. He wanted to stress how unusual
and grave that was. To his knowledge, they had never have had an
Immediate Jeopardy finding before at API.
MR. WALL said the steps had to be immediate:
• Removed the perpetrator to another ward alone;
• Implemented new safety protocol including 24/7 video
surveillance with communication to the wards;
• Implemented an hourly reporting system for each ward
to monitor every patient on an hourly basis including
behavioral risk mitigation; and
• Requested a nationally recognized specialist in
psychiatric treatment and safety, and NASHMPD to come
to API immediately for safety oversight.
MR. WALL said that the amount of time between discovering the
incident and getting a specialist on the ground was very quick.
They found out about it Thursday night and a specialist was
there on the ground Monday with the safety protocol in place in
the interim.
MR. WALL said the final decision on Wellpath had to made right
after the Immediate Jeopardy was found. He reviewed the reasons
Wellpath Recovery Solutions was chosen:
1. Was available immediately;
2. Had specific inpatient psychiatric experience
including both civil and criminal commitments;
3. Has a team of nationally recognized experts that has
the experience and track record to bring noncompliant
hospitals back into compliance rapidly
MR. WALL said not many companies have a pool of psychiatric
specialists who can jet out immediately and intervene.
MR. WALL gave the website for the documentation:
http://dhss.alaska.gov/API/Pages/AdminChanges.aspx. He said an
email address had been set up for all questions and concerns at
api.info@alaska.gov.
CHAIR WILSON recognized Representative Andi Story in the room.
2:22:07 PM
SENATOR STEVENS asked if hiring Wellpath gives them more time to
deal with the certification or accreditation process. He also
asked if there were a lawsuit, would the state or Wellpath be
sued.
COMMISSIONER DESIGNEE CRUM answered that as they evaluated the
process and saw the depth of the crisis, they reached out to the
accrediting bodies. Their biggest concern was that the state of
Alaska had failed to correct problems over the years, to make
substantive change. Alaska had gotten good at saying they were
going to address the problem, but nothing truly was done. API
was not shut down years ago because it is a critical aspect of
the behavioral health system in Alaska. He told them that they
would take a proactive and aggressive approach to actually
improving patient and employee safety as well as psychiatric
outcomes. They are working with the accrediting bodies, but the
accrediting bodies have given them no guarantees. This is them
showing they are taking truly substantive steps.
SENATOR STEVENS said then they had more time to address
certification and restated his question about who is responsible
legally.
MR. WALL responded that this did not give them more time. They
are still waiting for the CMS report. They could get a CMS
report any day that they have been decertified or they could
receive a report that they are being conditionally certified
under certain conditions. They could also receive a report that
says they are certified with a plan of correction. The contract
with Wellpath takes those eventualities into account. If they
are decertified, their task is to recertify them within the 90
days CMS window. If they are not decertified, their task is to
implement the plan of correction and bring them back into rapid
compliance. Decertification is a huge issue, but they still have
the ombudsman report, the OSHA violations, the Joint Commission,
and another finding by CMS. This is going to be an ongoing,
reiterative process. He did not think they would be given any
more extensions.
MR. WALL said the legal responsibility depends on the
circumstances--a direct patient care issue, an administration
issue. He would refer to the Department of Law for any specific
questions.
CHAIR WILSON asked for clarification about the vacancies. He
asked if these are going to be state employees going forth or
Wellpath employees. He wanted to know more about what was being
contracted.
MR. WALL replied that the contract is in two phases. The first
phase includes the deliverables he showed earlier, bring them
into rapid compliance, ensure patient safety, and prepare to
have beds open by July 1. If Wellpath meets those, then the next
phase is privatization. Between now and that period of time,
state employees will remain state employees and they are still
hiring. They want as many applicants as they can get. When they
segue into Wellpath taking over, there will be a plan in place.
He is having ongoing conversations with union heads and said he
would leave it at that.
SENATOR GIESSEL asked if the state ombudsman would still have
authority to do investigations if API was contracted to
Wellpath.
COMMISSIONER DESIGNEE CRUM referred the question to the
ombudsman.
2:28:40 PM
KATE BURKHART, Ombudsman, Office of the Ombudsman, Alaska State
Legislature, Juneau, Alaska, answered that with the way
commissioner and deputy commissioner described it, the ombudsman
still has jurisdiction over actions at the hospital, but if the
hospital moves into private management with private employees,
the ombudsman would not have jurisdiction.
2:29:32 PM
SENATOR BEGICH said no one doubts the seriousness of the issue
and its emergency nature. He asked whether they were already
thinking of privatization when the National Association of State
Mental Health Program Directors was contacted on December 18.
COMMISSIONER DESIGNEE CRUM replied that they were reaching out
at that time because they did not have an active plan of
correction accepted by CMS. As they were scrambling, they looked
at the lack of leadership at API because there were so many
vacant positions, so they asked if there were contractors who
could at least consult, help with the plan of correction, what
were other options, could it possibly be on the administrative
services side. That was the intent of the conversation. At that
point he thought that he had been on the job two weeks.
SENATOR BEGICH asked if he could provide that correspondence
with the National Association of State Mental Health Program
Directors to the committee.
MR. WALL answered the website has the email conversations with
the association. Those are after the date of initial contact,
which was by telephone. He used to be a member of the
association, so he called their fellows to ask for their
suggestions.
SENATOR BEGICH said he noticed the contact with Wellpath
Recovery Solutions was two days later on December 20. He asked
if that was before or after Mr. Wall began to correspond by
email with the national association.
MR. WALL replied that was prior to email correspondence. The
national association took a while to get back to him by email.
He reiterated that his first contact with Wellpath was not about
this issue. The email on December 20 was about health care in
juvenile justice facilities.
SENATOR BEGICH said slide 2 referred to pending legal issues
with extreme risk of high cost to the state. He asked if he was
aware of the two parent companies of Wellpath having over 1,300
lawsuits filed against them in the last decade and hundreds more
for Correct Care medical group.
COMMISSIONER DESIGNEE CRUM deferred to representatives from
Wellpath.
SENATOR BEGICH asked if those representing the state of Alaska
were aware of the lawsuits.
COMMISSIONER DESIGNEE CRUM said they were aware of those, but a
lot of those were in prison or correctional facilities. The
entire focus of Wellpath Recovery Solutions is on psychiatric
hospitals and behavioral health issues. Wellpath representatives
can provide clarification on that.
2:33:36 PM
JEREMY BARR, Senior Vice President, Wellpath Recovery Solution,
Nashville, Tennessee, said Wellpath partners exclusively with
state behavioral health agencies to provide services to patients
like those served at API. As it relates to the larger question
of litigation, they are a division within a larger organization
that provides health care services in a variety of public health
settings. Some of those are prisons and jail settings. There is
a certain amount of litigation associated with that. The vast
majority of those, more than 90 percent, are dismissed out of
hand. The bulk of that information vs. the total daily
population across the company, which is about a quarter of a
million patients, looks like a community emergency room. When
they are compared to a like health care system, because they are
a health care company, the incidents of litigation where a
settlement is made is less than a fourth of what would be found
in a community ER setting.
SENATOR BEGICH asked how long Wellpath has been in existence.
MR. BARR answered that Wellpath was the combination of Correct
Care Solutions and Correctional Medical Group Companies made in
October of last year. Wellpath Recovery Solutions was an entity
associated with Correct Care Solution. As part of the merger, a
new name was chosen that expressed their vision as a health care
company.
SENATOR BEGICH said this was an $84 million contract done under
emergency procurement powers. He asked Mr. Wall if he got a
legal opinion and was it posted online with the other
information.
MR. WALL answered yes to both questions.
SENATOR BEGICH said "temporary" is ill defined in the statute.
He asked for his definition of "temporary emergency." Emergency
procurement is for a temporary period because procurement law
requires competitive bidding. Senator Begich wanted to know Mr.
Wall's sense of "temporary" so the committee would know what
"temporary" is.
MR. WALL said he had learned a great deal in this process. He
used the wrong word in certain places with procurement initially
and then the lawyers straightened him out. Initially he was
using "emergency," and they were talking single source, so he
was using single source emergency. He was using the wrong words
for it. He recommended getting clarification from procurement
and attorneys because they have a written explanation of it in
the packet, but it would behoove them to get them a specific
answer.
CHAIR WILSON asked him to provide that to the committee.
SENATOR BEGICH said he was looking at a statement made by the
commissioner, which the deputy commissioner repeated, "if they
are successful in the first phase, through June 30, 2019,
Wellpath will assume full responsibility of API after July 1,
2019." He said he was bringing that specific phrasing up because
it sounds like they move from some temporary procurement
responsibility to an actual, long-term action that has gone
through no competitive process, has had no process that the
procurement code requires so that other entities could consider
managing this or to see whether they could do it within the
state service. He asked how they can get to the point five
months from now, as part of the contract, in which they would
take full responsibility of API without a competitive process.
COMMISSIONER DESIGNEE CRUM said that when the department reached
out, there was an immediate emergency and Wellpath was the only
company who could get boots on the ground. If the company can
meet the key deliverables in four months when the state has
failed over the last two decades, then this is the company the
department wants managing this group.
SENATOR BEGICH responded that this may be the company they want,
but this is not what the law says. He said this is really
important for both the commissioner and deputy commissioner to
understand. If they bring API to a point where there is no
longer an emergency, there is a procurement code that is
statutory and regulatory that binds them. He asked whether the
department will be opening this up to competitive bid or at
least do the work required by statute for background review for
findings of fact that are considerable. If they look at the
statute, they will see that a considerable burden is placed upon
the department for these kinds of actions. While they may like
their performance, unless they craft a contract that is specific
to that performance, there is a state requirement that this goes
to competitive bid. He said he applauds the department for
dealing with the emergency situation, although he questions a
company that may have existed only since October, but at the
same time, he was questioning whether they were abiding by the
law of the state.
2:41:51 PM
MR. WALL responded that the department has a great deal of
respect for the law and particularly the procurement statutes.
However, there is more than just that statute that they are
discussing. He said he would like to follow up with a legal,
written explanation of what the choice was when the decision was
made.
CHAIR WILSON asked him to get that to the committee.
SENATOR BEGICH said he understood the choice that was made. He
is talking about an action on July 1, 2019, that under the
procurement code, needs to be a competitive process with
findings of fact. He said that is what he was putting on the
record.
CHAIR WILSON clarified that the department was still waiting for
the final letter from CMS. They are not out of woods with the
current emergency situation until they know the findings in the
CMS letter.
MR. WALL answered correct.
CHAIR WILSON said a privatization study was done by the PC Group
in February 2017. In the committee overview, the API
recommendation was 18.1 nurses on the floor at all times and
they recommended about 21.2 nurses under their staffing
recommendations and scenarios. He asked whether Wellpath was
providing recommended staffing for nurses or was there still a
deficit of nurses to run the facility.
MR. WALL replied that they still have a deficit of nurses.
Wellpath's immediate focus is to bring them into compliance with
CMS, to ensure the safety of patients, and to prepare for the
future, at which time Wellpath will address the staffing issue.
They are still recruiting and Wellpath will be recruiting as
they move forward. The instant workforce for putting the nurses
on the ward is something they will grow over the next couple of
months.
CHAIR WILSON asked if that meant that they are not looking for
locum tenens doctors or agency nurses to fill that need, that
they were doing overtime with the current nurses. He was
concerned about the staffing level of the nurses.
MR. WALL answered that he was deeply concerned about staffing
levels. They have had locum agreements for some time for
positions that they don't have any applicants at all for, like
forensic psychologist, like a psychiatrist. They have had
psychiatrist positions vacant for years. They tend to fill those
when they can with midlevel practitioners, advanced nurse
practitioners with psychiatric specialty, but they don't fit the
exact PCN in the classification structure. They are trying
everything they can to get new staff on the ground, including
locums.
CHAIR WILSON said the privatization study talked about the
benefits and drawbacks of comprehensive outsourcing. He
mentioned concerns about a reduction of staffing levels to save
money as part of privatization. They have had a number of emails
about safety, a lot of it regarding staffing levels of the
nurses. API is a huge part of their behavioral health continuum
in Alaska. Another concern with privatization was having those
key partnerships with local community hospitals and local
providers. He asked if they could provide a statement to the
committee addressing those issues.
MR. WALL said they would provide a statement on those issues. He
wanted to point out that would be updating the feasibility study
to the level that they can with the time they have.
CHAIR WILSON said he appreciated the transparency from having
the different communications on the website. He asked if the
copy of the contract was on the website.
MR. WALL answered yes.
COMMISSIONER DESIGNEE CRUM said that API is a focal point for
the entire system. He related that in meetings with the Alaska
Native Health Board and the Alaska Mental Health Trust Board,
board members have told him that the state must fix API as soon
as possible so it is possible to move the focus to the rest of
the system of care. There has been a vacuum of attention and API
is a bottleneck for the rest of the system. It places an undue
burden on emergency departments and their local partners. A
number of key partners supported the department in this
decision. This will provide an opportunity to address the entire
continuum of care for behavioral health. He said he did not want
this rapid pace, but immediate jeopardy required that he to step
in.
2:49:09 PM
There being no further business to come before the committee,
Chair Wilson adjourned the Senate Health and Social Services
Standing Committee at 2:49 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| API Presentation Feb 13 2019.pdf |
SHSS 2/13/2019 1:30:00 PM |
DHSS Briefing on Alaska Psychiatric Institute |