Legislature(2019 - 2020)BUTROVICH 205
03/11/2020 01:30 PM Senate HEALTH & SOCIAL SERVICES
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| Audio | Topic |
|---|---|
| Start | |
| SB238 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 179 | TELECONFERENCED | |
| *+ | SB 238 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE HEALTH AND SOCIAL SERVICES STANDING COMMITTEE
March 11, 2020
2:03 p.m.
MEMBERS PRESENT
Senator David Wilson, Chair
Senator Natasha von Imhof, Vice Chair
Senator Cathy Giessel
Senator Mike Shower
Senator Tom Begich
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 238
"An Act relating to involuntary commitment procedures; relating
to protective custody at a correctional facility or jail;
relating to transportation of individuals held for involuntary
admission for mental health treatment; and providing for an
effective date."
- HEARD & HELD
SENATE BILL NO. 179
"An Act relating to the licensure of nursing professionals;
relating to a multistate nurse licensure compact; and providing
for an effective date."
- BILL HEARING CANCELED
PREVIOUS COMMITTEE ACTION
BILL: SB 238
SHORT TITLE: INVOLUNTARY COMMITMENT;PROTECTIVE CUSTODY
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/28/20 (S) READ THE FIRST TIME - REFERRALS
02/28/20 (S) HSS, JUD
03/11/20 (S) HSS AT 1:30 PM BUTROVICH 205
WITNESS REGISTER
ALBERT WALL, Deputy Commissioner
Department of Health and Social Services (DHSS)
Anchorage, Alaska
POSITION STATEMENT: Presented an overview of SB 238.
STEVEN BOOKMAN, Assistant Attorney General
Civil Division
Human Services Section
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on SB
238.
ACTION NARRATIVE
2:03:42 PM
CHAIR DAVID WILSON called the Senate Health and Social Services
Standing Committee meeting to order at 2:03 p.m. Present at the
call to order were Senators Giessel, von Imhof, and Chair
Wilson. Senators Shower and Begich arrived shortly thereafter.
SB 238-INVOLUNTARY COMMITMENT;PROTECTIVE CUSTODY
2:04:06 PM
CHAIR WILSON announced the consideration of SENATE BILL NO. 238,
"An Act relating to involuntary commitment procedures; relating
to protective custody at a correctional facility or jail;
relating to transportation of individuals held for involuntary
admission for mental health treatment; and providing for an
effective date."
CHAIR WILSON stated his intention to hear an overview of the
bill and take public testimony.
2:04:46 PM
ALBERT WALL, Deputy Commissioner, Department of Health and
Social Services (DHSS), Anchorage, Alaska, said SB 238 addresses
existing gaps in civil commitment law in four ways: 1. It will
make clear that a person can be held in protective custody in a
correctional facility or jail only when absolutely necessary and
for the absolute minimum amount of time; 2. It will outline the
responsibilities of DHSS, the Department of Corrections (DOC),
and the Alaska Court System, such that when a person is placed
in emergency protective custody, the individual's health and
safety is protected and the person is reevaluated every 48
hours. And the person will automatically have a court review
hearing within 96 hours; 3. The proposed legislation will
protect Alaskans privacy and civil rights by ensuring a person
receives the full 72 hour period of evaluation before the person
can be involuntarily committed for 30 days. It will also
prohibit creating a record indicating that the person was
arrested or charged with a crime; and 4. It more clearly defines
when DHSS has custody of a person and requires the department to
provide transportation for the person. It will create efficient
chains of communications through the requirement that DOC must
notify DHSS and DHSS must file the necessary reports with the
courts.
MR. WALL said the bill is designed to reduce instances of people
awaiting treatment in DOC and provide a process of systemwide
accountability to protect an individual's rights. DHSS recently
submitted a report to the court addressing gaps in the inpatient
psychiatric system. The department committed to ongoing efforts
to identify and improve gaps in the system of care, including
legal gaps. SB 238 is an important part of that plan.
2:07:28 PM
MR. WALL presented the sectional analysis for SB 238:
Section 1: Removes the reference when a person can be
held in protective custody (now addressed in section
2) and adds "emergency" to state "emergency protective
custody under this section may not include placement
of a minor in a jail or secure facility."
Section 2: Creates AS 17.30.706"Protective custody at
a correctional facility or jail. The new statute only
allows placement at a correctional facility if no
designated treatment or evaluation facility, crisis
stabilization center, or health care facility has the
"capacity to safely admit the person within a
reasonable amount of time." Once the person is under
protective custody, they can only be held there while
transport arrangements are made. The correctional
facility/jail must notify the Department of Health and
Social Services (DHSS) as soon as practicable if they
have a person in protective custody, and then the DHSS
makes arrangements for transport and admission to a
designated treatment or evaluation facility. If the
person remains in protective custody for more than 48
hours without a plan in place to transport within the
next 12 hours, the DHSS will provide an evaluator
every 48 hours to determine if the person still meets
the criteria for probable cause for the ex parte hold.
The DHSS will notify the court if the person is
released or if the person is being held and what the
transfer plan is. The court is required to conduct a
review hearing no later than 96 hours after the person
is placed in protective custody. The correctional
facility/jail is required to take reasonable steps to
protect the person's health and safety and is
permitted to take reasonable steps for protection of
others. Finally, the statute prohibits making a record
that the person has been arrested or charged with a
crime.
Section 3 (AS 47.30.715), Section 4 (AS 47.30.725(b)),
and Section 5 (AS 47.30.725(f)): Amend current law to
clarify timelines for a commitment hearing and
evaluation. The purpose is to ensure the evaluation
facility has the full 72-hour period to evaluate the
respondent before a hearing is held.
Section 6: Creates AS 47.30.727 Custody of the
department to clearly delineate when DHSS has custody
of a person during the civil commitment process. DHSS
only has custody during the time it takes physical
control in order to provide transportation, and when
the person is at the state hospital.
Section 7: Amends AS 47.30.870 Transportation to
clarify that before DHSS takes custody of the person,
DHSS shall arrange and pay for transportation. Also,
DHSS must arrange transportation when the DHSS takes
custody of the person.
Section 8: Amends AS 47.30.915 to add a definition of
"crisis stabilization center."
Section 9: The law applies to those taken into custody
on or after the effective date of the Act, which takes
effect immediately.
2:11:54 PM
SENATOR GIESSEL referred to Section 6. She asked if the
Department of Corrections (DOC) is responsible when a person is
in jail and waiting to be admitted to Alaska Psychiatric
Institute (API), for example, but there is no bed available.
MR. WALL replied that is exactly what Section 6 intends to
clarify. He deferred further comment to Mr. Bookman.
2:12:55 PM
STEVEN BOOKMAN, Assistant Attorney General, Civil Division,
Human Services Section, Department of Law, Anchorage, Alaska,
agreed that Section 6 intends to clarify that law. He said
Section 6 also would cover someone who is at a community-
referring hospital before being transported by the department to
an evaluation facility.
SENATOR GIESSEL questioned the notion that the Department of
Corrections would assume responsibility for the cost of housing
and treatment for these individuals. She noted that this is not
insignificant when someone's condition is serious enough to need
services from API.
MR. BOOKMAN replied that is the idea, although there would be
limits on what DOC could provide for someone. The statutes do
not permit an involuntary medication order, for example, but
some treatment could be given on a voluntary basis. The
department seeks to limit the incarceration time at DOC
facilities or jails for individuals who need treatment.
SENATOR GIESSEL responded, "I'm wondering how the Department of
Corrections feels about that."
MR. BOOKMAN related his understanding that DHSS met with the
Department of Corrections on this matter.
MR. WALL added that he did not envision many instances in which
an individual would be incarcerated in a DOC facility while
awaiting an API bed but the bill clearly defines who is
responsible for individuals who are awaiting transport to a
psychiatric hospital.
CHAIR WILSON related his understanding that a person in that
sort of crisis who is in an emergency room would be put on a
one-to-one status or 15-minute observation. He asked if someone
would be given upgraded observational status while they were in
a DOC facility awaiting transport to a psychiatric hospital.
MR. WALL replied each facility has its own protocols depending
on whether it is a contract jail or a state facility.
Observation and oversight would be worked out on a case-by-case
basis, he said.
MR. BOOKMAN added that a majority of people who are in
correctional facilities awaiting admittance to API or the DET
[Designated Evaluation and Treatment Program] are housed at Mike
Mod in the Anchorage jail. That facility is spatially set up so
that all the cells are visible from a central location.
MR. WALL clarified that Mike Mod is a treatment area within DOC.
CHAIR WILSON expressed interest in having the same standard in
DOC facilities and contract facilities. He wondered if DOC could
address that issue and other questions the committee has. He
noted that the state has not yet addressed compliance with PREA,
the Prisoner Rape Elimination Act. He said he does not want to
create another burden, but part of this bill is designed to
respond to lawsuits related to consistency issues on a statewide
basis. One concern has been housing prisoners with mental health
needs without providing the same standards of care that
facilities with higher-level care, such as API provide. He asked
when interventions begin to ensure the safety of an individual
and others.
MR. WALL replied that DHSS will work with DOC to consider
various scenarios. He pointed out that this is not a new process
or population, so numerous procedures are currently in place to
address these situations. SB 238 merely clarifies which agency
has responsibility during the timeframe individuals are awaiting
transport to mental health facilities such as API.
2:19:16 PM
SENATOR BEGICH said that is his primary concern with the bill.
He read an excerpt from an Anchorage Daily News article
[entitled "Judge orders state to end practice of holding
psychiatric patients in jails, ERs, October 22, 2019"]:
"Alaska's practice of detaining people held on civil psychiatric
holds in jails due to the Alaska Psychiatric Institute's
inability to treat them causes 'irreparable harm' and must end,
an Anchorage judge has ruled." He offered his view that this
bill will not address that issue. Psychiatric patients should
not be in correctional facilities. He said the article describes
windowless cells outfitted with concrete slabs for sleeping. It
points out that civil detainees at API are held in very
different conditions than civil detainees at DOC facilities.
It's a mistake to say that DOC will be responsible for these
individuals because DOC is not designed to address the
psychiatric population. He questioned how patients and the
groups who represent them would respond to this provision.
2:21:46 PM
SENATOR VON IMHOF asked Deputy Commissioner Wall if he wanted to
respond to that before she asked her question.
MR. WALL deferred to Mr. Bookman.
MR. BOOKMAN responded that protective custody is already in
current law. The bill seeks to provide structure and
clarification about when it should be used and for what purpose.
He characterized it as a backup plan. For instance, the bill
explains that protective custody in a jail or correctional
facility should be used only if a treatment facility, an
evaluation facility, a crisis stabilization center, or a health
care facility is not available. The state should be moving
toward the goal of not placing people [in protective custody] in
jail cells or at least for a minimal amount of time.
He reminded members that Deputy Commissioner Wall indicated
there are places in the state with no other option. This bill
will require DOC to notify DHSS when someone is in protective
custody, but it does not eliminate or address protective
custody. Currently DHSS is notified that someone is in
protective custody when the court order is issued, which could
take a number of hours. This bill will speed up the notification
process so DHSS can plan how to get someone out of protective
custody.
MR. WALL added that there must be some mechanism of last resort
in place for those who fall through the cracks. This bill will
put in place a precise structure for that last resort measure,
including who must notify DHSS and file reports, and it provides
a timeline to limit the protective custody period.
SENATOR VON IMHOF noted that some of the gaps in the system that
Deputy Commissioner Wall referenced are being addressed with the
stabilization centers.
She recalled that one reason the situation arose last fall that
Senator Begich mentioned was that the shortage of psychiatrists
meant no one could perform the forensic assessments. She further
recalled that API indicated it hired more staff so this has been
addressed. She asked if this issue should be addressed via
regulation rather than in statute. She related her understanding
that this issue primarily relates to the larger communities of
Anchorage, Fairbanks, Juneau, and the Mat-Su Valley. She said
smaller communities like Haines were a separate issue.
2:27:04 PM
MR. WALL deferred the question about whether the remedy should
be addressed in statute or regulation to Mr. Bookman. He said SB
238 relates to the civil commitment process, not the forensic
process, which DHSS is working to resolve with two new
evaluators via provider agreements. The department has
substantially eliminated the backlog of evaluations on the
forensic side.
He reported that last February, DHSS had just under 100
individuals awaiting API beds. Since then, the figures have
typically been in the single digits, and zero at times. He said
DHSS is still working to address issues, but the process is
moving in the right direction.
MR. WALL said the department has made tremendous strides in the
last year. The state has always needed several levels of care,
but the crisis stabilization and partial hospitalization for
those suffering from mental illness has not been available.
Implementing the [Medicaid] 1115 waiver has helped. The second
phase which includes serious mental illness will come online at
the beginning of the next fiscal year.
MR. WALL said the Alaska Mental Health Trust Authority has been
the main driver for the Crisis Now model. Crisis stabilization
is one of the keystones of that model. He offered his view that
the 1115 waiver and working with partners has been a tremendous
process. He said DHSS seeks to reach the point where the safety
net is never needed for those in crisis, no matter whether that
person resides in Haines or Anchorage. He said he hopes this
will be achieved once the stabilization center is running
properly. This bill focuses on what to do for people in crisis
in areas without a stabilization center who have no other place
to go. It identifies the responsibilities for each department
and the timeframes.
MR. BOOKMAN said placing this language in statute reflects a
policy choice. Regulations are gap fillingand implement the
intent of the statute. Currently, protective custody is almost
phrased in the negative. It says a person taken in custody for
emergency evaluation may not be placed in jail or other
correctional facility except for protective custody purposes and
only while awaiting transportation to a treatment facility. He
expressed concern about placing the structure provided by SB 238
in regulation because the bill primarily addresses underlying
policy issues.
MR. WALL said the whole system of care has needed correction for
some time. This bill will address one aspect of the process.
2:33:01 PM
SENATOR BEGICH expressed concern about inconsistency in the
state's continuum of care. He said he was unsure how the
continuum of care is maintained if Deputy Commissioner Wall or
someone else working on the system of care leaves next week, if
the waiver is changed to a block grant, or if there are changes
in the way the system is funded. While DHSS acknowledges the
need for these services, he does not often see them presented in
agency budget documents. He emphasized that these services must
be substantiated. He opined that the state must address the lack
of capacity to provide care for people who are inappropriately
placed in DOC but need mental health services.
He commended DHSS for maximizing capacity, enhancing services,
and reducing the waiting list at API, which is the state's only
institution. However, providing a continuum costs money, he
said.
SENATOR BEGICH said he would be more supportive of the bill if
he better understood where it fits into the continuum and the
administration's commitment to fund the continuum.
MR. WALL said DHSS faces a conundrum because the system of care
is massive. Presenting a comprehensive omnibus plan that
identifies each piece, including who is in control, is daunting.
He acknowledged that a huge piece still needs to be addressed.
The department seeks to achieve what can be done with precision
and care rather than building a new system by using an omnibus
approach.
He acknowledged the difficulty in describing the complexity of
the issue. In its presentation on the 1115 waiver, DHSS compared
the different levels of care under the old system with the new
one. The presentation described 23 new services of care, the
process to access that care, and the funding mechanism. The
chart indicates the lowest level of care and moves to the higher
acuity. The department can provide a visual of where this
statute would fall on that continuum.
MR. WALL argued that DHSS has addressed and continues to address
the capacity issue, not only in terms of the continuum of care,
but specifically for inpatient psychiatric care. In the last 14
months, Commissioner Crum added more inpatient beds to the
continuum of care through partnerships with providers than what
has previously been done in years. There is an active movement
to address the continuum of care and the capacity in the
continuum of care at different levels. Although it is
frustrating to him and others, DHSS had made more progress in
the last couple of years than he has seen in the previous 10
years.
2:39:37 PM
SENATOR SHOWER asked for the general goal for beds in the Mat-
Su. He recalled that it was about 37 beds.
MR. WALL replied API is an 80-bed facility with 50 available
beds. DHSS's goal is to have all of them available as fast as
possible. Most of the constraint relates to staffing. For the
overall system of care, determining the number of needed beds
includes the beds needed in regions such as Bethel, Kotzebue, or
Ketchikan. DHSS is engaged with providers to solicit more
facilities to be become designated evaluation and stabilization
centers or designated evaluation treatment centers or DES/DET.
Thus, DHSS is requesting incentivization funding for new DES and
DET beds. Providing a few more beds in each region will mean
that people can more quickly access care. This would eliminate
the need to fly patients to one central location for care. He
pointed out that in the Bering Strait region, Norton Sound
Health Corporation (NSHC) has improved its system of care,
including psychiatric care, by adding a wellness and training
center in Nome, which will house its behavioral health services
program. He said DHSS is working hard to assist hospitals
interested in more DES and DET beds.
CHAIR WILSON observed that Norton Sound would love to have that
empty youth facility.
MR. WALL responded that DHSS has been having some interesting
discussions with the NSHC.
SENATOR SHOWER said the state has been working to include tribal
entities. Some questions have arisen, including if it is wise to
bring people from rural areas to a different culture in
Anchorage. He said he hopes the state will partner with tribal
entities. He offered that Glenallen is trying to create its own
regional capacity.
MR. WALL reported that Bethel has four DES beds designated as
tribal.
2:43:51 PM
CHAIR WILSON asked when the 72 hours for assessment starts and
if it begins when someone is in transit.
MR. WALL deferred to Mr. Bookman.
MR. BOOKMAN answered that the 72-hour count starts when someone
enters a DET or API.
CHAIR WILSON expressed concern that if transportation is not
established, a person could be in involuntary commitment for
weeks.
MR. BOOKMAN said the bill seeks to address this by requiring a
hearing to be held no later than 96 hours after someone is in
protective custody. This requirement is not currently in
statute.
CHAIR WILSON asked the rationale for increasing the time from 72
to 96 hours.
MR. BOOKMAN answered that currently, the statutes gives API or a
DET 72 hours to evaluate someone and file the petition. The
hearing must take place within 72 hours. However, if a patient
needs 72 hours of observation, the hearing must be held quickly,
but the public defender agency may not have enough time to
adequately prepare or it may not give the court system enough
time to find a judge. Many people will achieve some measure of
stabilization in 72 hours, and these patients could be
discharged or accept voluntary treatment and work toward
discharge. The clinical perspective is that the full 72 hours
will allow for stabilization and time for the patient to engage
with a provider, which may lead to a better hearing since the
clinician may have a better understanding of a respondent's
condition.
CHAIR WILSON described that as a good answer.
2:47:56 PM
MR. WALL said one problem with stabilization evaluations is they
may push people through the system too fast. For example,
someone who comes in with a psychiatric need, who is also on a
substance, has a co-occurring issue. If the person is pushed
through the system too fast, the substance abuse issue cannot be
addressed. During the evaluation of someone in an acute state
with conflicting problems, it may not be easy to identify what
part of the crisis is due to the substance or is psychiatric.
When the patient is given more time to stabilize, doctors can
better identify the patient's needs, including whether someone
has an acute psychiatric need or if the patient needs more
outpatient care. SB 238 delineates the legal timeline, but it
also slows down the clinical process to ensure the patient has
the best care.
SENATOR BEGICH asked if DOC is the best department to do the
evaluation and provide the care.
MR. WALL replied DOC does not conduct evaluations, but the
department can provide the care if it is necessary.
Accessibility to care at the time of need is important and that
delineates who has the responsibility for that because the
person is with them at the time of need.
2:50:31 PM
SENATOR BEGICH asked how many people would have been affected by
the bill over the last five years.
MR. WALL deferred to Mr. Bookman.
MR. BOOKMAN asked for clarification of the question.
SENATOR BEGICH asked how many people the bill would affect.
MR. WALL asked if he was asking how many patients on civil
commitment have been in a DOC facility in the last year awaiting
transport.
SENATOR BEGICH said his question included populations in a
contract jail.
MR. WALL related his understanding of the question for Mr.
Bookman.
MR. BOOKMAN answered that the last person picked up and taken to
a correctional facility was last August. He estimated that
approximately nine patients were affected since last January. He
said he would follow up with the figures for the entire year.
SENATOR BEGICH pointed out that there was a lawsuit and it would
have brought this practice to an end. He said he was interested
in how many people this bill will affect in an average year.
CHAIR WILSON requested the figures for the past two years.
MR. BOOKMAN agreed to provide the data.
MR. WALL said one of the ways an individual can end up in this
category is to be taken to a DOC facility on charges that are
dropped while the individual is in the facility. Then the ex
parte order is filed. SB 238 requires notification as soon as
the order is filed so the process can move forward. The
intention is to keep people in that status for as little time as
possible.
2:54:00 PM
CHAIR WILSON opened public testimony and after first determining
no one wished to testify, closed public testimony on SB 238.
SENATOR SHOWER asked if the bill will artificially constrain the
time needed to evaluate someone and whether a longer time period
for evaluation might be needed.
MR. WALL explained that that there are generally accepted
guidelines and practices for psychiatric care. The evaluation
process is prescriptive with a timeline. Evaluators are required
to see patients within timeframes to re-evaluate them because a
patient's condition changes over time, especially with
psychiatric needs. Patients who have a substance in their system
need time to detox. Clinicians and doctors follow those
guidelines for observation. He deferred to Mr. Bookman to
address the legal aspects.
MR. BOOKMAN said state requirements vary as to how long people
can be held at a health care facility prior to a court hearing.
Alaska requires 72 hours of evaluation, but some states allow
five or seven days. He did not think there was anything magic
about 72 or 96 hours, which is not established by the state or
federal constitution. Legislators could consider a longer period
of time, which could fit into legal parameters, but there are a
lot of things to consider.
SENATOR GIESSEL expressed appreciation that Deputy Commissioner
Wall brought this forward as a statute since the department
cannot write regulations without the statutory authority to do
so. More importantly, he heard the concerns and the interests of
the committee. When an agency writes regulations, legislators
have no say unless the legislators enter into the public comment
period.
CHAIR WILSON reiterated his request for follow up information
from DHSS and DOC's view of the legislation.
SENATOR BEGICH requested information about the locations where
people were being held.
3:00:01 PM
CHAIR WILSON held SB 238 in committee.
3:00:44 PM
There being no further business to come before the committee,
Chair Wilson adjourned the Senate Health and Social Services
Standing Committee at 3:00 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 238 Version A.pdf |
SHSS 3/11/2020 1:30:00 PM |
SB 238 |
| SB 238 Transmittal Letter 2.27.20.pdf |
SHSS 3/11/2020 1:30:00 PM |
SB 238 |
| SB 238 Sectional Analysis Version A.pdf |
SHSS 3/11/2020 1:30:00 PM |
SB 238 |
| SB 238 Fiscal Note DOC 2.27.20.pdf |
SHSS 3/11/2020 1:30:00 PM |
SB 238 |
| SB 238 Fiscal Note DHSS 2.24.20.pdf |
SHSS 3/11/2020 1:30:00 PM |
SB 238 |
| SB 179 Public Input 3.10.20.pdf |
SHSS 3/11/2020 1:30:00 PM |
SB 179 |
| SB 179 DCCED response 3.10.20.pdf |
SHSS 3/11/2020 1:30:00 PM |
SB 179 |