SENATE BILL NO. 8 "An Act relating to a mental health patient's right to choose the gender of hospital staff providing intimate care to the mental health patient and to the duties of hospital staff in caring for patients receiving mental health treatment." Co-Chair Hoffman MOVED to ADOPT CSSB 8, labeled 25-L010\E, Mischel, 2/4/08. Co-Chair Stedman OBJECTED. Co-Chair Stedman summarized that CSSB 8 changes the age of patient's right to request a care provider by gender from sixteen to eighteen years of age. The bill, as originally introduced, addressed patients sixteen years and older but the Judiciary committee amended it to eighteen years of age. SENATOR BETTYE DAVIS, SPONSOR elaborated on the reasoning behind the age change. She indicated that patients under eighteen years of age usually enter the mental health care system through the Department of Health and Social Services, parental consent or other professional situations. She considered many teenagers (under eighteen) incapable of making mature decisions due to their past emotional or social experiences. She indicated many facilities would be affected by this age change. Co-Chair Stedman WITHDREW his OBJECTION. 9:09:53 AM TOM OBERMEYER, STAFF TO SENATOR BETTYE DAVIS provided an overview of SB 8 by reading the sponsor statement: (copy on file) SB 8 provides that a mental health patient 18 years of age or older who is receiving mental health treatment and being provided intimate care at a hospital shall have the right to have care provided by a staff member who is the gender that the patient requests. Many of these patients have been traumatized by sexual and/or physical abuse in the past and they are very sensitive to being touched or assisted by hospital staff who provide intimate care, because the experience may trigger from original abuse feelings of fear, helplessness, distress, humiliation, and loss of trust in staff. The supervisor or manager employed by a hospital shall pot notice of this right in a conspicuous place, so patients know they may exercise this right when they are concerned about the gender responsible for their personal intimate care. While it is understandable that a hospital may not always be able to comply with the requirement of choice of gender in all situations and requests due to staffing schedules and shortages on particular shifts or duty units, the bill requires that the facility document the non-compliance in the patient record that the intimate care was provided by a licensed or unlicensed staff member of a gender opposite that requested by the patient. This information might otherwise be ignored or lost. The information is also useful not only for confirming the good faith effort on the part of the institution to comply with the wishes of the patient, but for medical purposes as well in evaluating the effect on patient outcome, because individuals re-traumatized in this way are subject to chronic stress which can worsen serious mental illness and result in symptomatic relapses and repeated re- hospitalizations. Lastly, this bill will preserve information for inquiry into grievance procedures at mental health facilities under Title 47, which have been described as unduly burdensome by some patients, and easily circumvented or limited because the language is too broad. 9:12:31 AM Mr. Obermeyer reminded the committee that this bill only addresses gender choice, not grievance procedures (SB 186 "An Act relating to a mental health patient grievance procedure"). The implementation of the bill presents no additional costs, other than an additional effort on the part of facilities to accommodate patient's requests. Mr. Obermeyer noted that it may be impossible for the facility to accommodate gender choice in all circumstances. He maintained that under such circumstances, the facility only needs to document the occurrence and provide what care is possible. It is the belief of numerous doctors and nurses that this measure will help reduce patient trauma and avoid recidivism among the mental health population. 9:13:25 AM Co-Chair Stedman questioned the rationale of allowing the patients, not the hospital, to make the decisions on gender care. Mr. Obermeyer remarked that experience has proven that the gender choice situations are often the easiest for hospitals to ignore. He stressed that hospitals contain a vulnerable, often involuntary population, without much control of their lives once institutionalized. Lacking requirements, the institution may simply follow the procedure that works best for them over the patient's desires. He clarified that this did not necessarily imply patient abuse, but in situations where patients have been traumatized, it may not be evident to the patients that they had the power to file a complaint. If there is a procedure in place, posted in a prominent place, the patient would be better informed of their rights to request a specific gender or staff member. The entire point of the bill is to protect the vulnerable patient population in the mental health facility. Co-Chair Stedman questioned the meaning of line 14, "if, after reasonable and good faith efforts to comply." Mr. Obermeyer replied that a "good faith" effort means that the hospital or facility must try to accommodate patient needs, but when it is impossible, due to shift or vacations schedules, it may require a second person (of the requested gender) to be in with the patient and staff member. The reasonable and good faith effort is a term used throughout statutory language based on the normal course of business. 9:16:28 AM Senator Olson questioned the consequences if the good faith efforts are less than successful. Mr. Obermeyer read page 2, line 1-8, that if the hospital is: unable to comply with the requirement under (a) of this section, (A) document in the patient record that intimate care was provided by a licensed staff member of the gender opposite to the gender requested by the patient under (a) of this section; or (B) if a licensed staff member is not on duty at the time of the patient's request under (a) of this section, document in the patient record that the care was provided by an unlicensed staff member of the gender opposite to that requested under (a) of this section. Mr. Obermeyer explained the record of non-compliance is not necessarily to hold the hospital responsible, although there could be instances where this is necessary, but to examine the patient records for the incident date to follow-up in cases of litigation or questions. 9:18:06 AM Senator Olson remarked that there had been discussions in Bartlett and Fairbanks Memorial Hospitals to address such issues but wondered how this would affect other hospitals, particularly rural hospitals, which may be understaffed and unable to comply. Mr. Obermeyer reminded the committee that the institution only needs to document the incident if they are unable to comply. Senator Davis added that the bill mentions licensed and unlicensed individuals, allowing the institution to provide the best service possible for them. An alternative way to provide the service could be to involve the community in possible service. Senator Olson wondered if any rural hospitals had given an opinion on this bill. Mr. Obermeyer responded that he had not heard from any rural hospitals. Senator Olson inquired on the effect in the very small communities in retaining health care aids. Mr. Obermeyer responded that the language of the bill describes the facility as a hospital; therefore smaller institutions may not fall under this requirement. 9:20:31 AM Senator Thomas stressed that the most vulnerable patients are the younger ones. He appreciated that hospitals often try to provide consistent gender care but believed that more attention should be paid to those younger and more prone to possible abuse in an institution. Senator Davis addressed these concerns by indicating that younger children, when they are institutionalized, usually have other professional support working to protect their rights. She maintained that those adults eighteen years of age and older may not have this kind of protection or the ability to ask for it. Senator Dyson encouraged the passage of this bill in its present form. He asserted that personal privacy is important to our society and individuals but those with mental handicaps are often prone to exploitation. He believed that laws and regulations were important in assisting patient's needs. Senator Dyson also stressed that a significant percentage of exploitation involved same sex and possible exploiters often obtain employment in positions caring for those they intend to abuse. He maintained that the State of Alaska and the Legislature are committed to providing and protecting personal privacy to prevent further trauma in the lives of mental health patients. 9:26:41 AM PATRICK HIGGINS, NORTH STAR BEHAVIORAL HEALTH SYSTEMS, appreciated the Committee review and consideration of this bill. RON ALDER, DIRECTOR OF ALASKA PSYCIATRIC INSTITUTE, DEPARTMENT OF HEALTH AND SOCIAL SERVICES applauded any effort to protect the vulnerability of the psychiatrically disabled population. He asserted, as a hospital director, the numerous flaws in the proposed legislation. Mr. Alder observed that there are no United States laws where a legislature mandates the documentation of non-compliance in an accredited hospital and he was concerned that it would set a precedent. He believed that this bill, for public hospitals, should receive some attention from the Department of Law. He remarked that the proposed legislation also asserts that intimate care only be provided by licensed professionals. Mr. Alder referenced the Joint Mission of Hospital Accreditation Standards which states that licensed professionals are not required. He indicated that when intimate care is required at the Alaska Psychiatric Institute (API), the service is usually provided by unlicensed psychiatric nursing assistants under the direction and supervision of a registered nurse. Mr. Adler emphasized that this decision has not been a problem and questioned this bill's relevance on these issues. He maintained that at the API only one patient complaint had been filed in five years which resulted in an elaborate policy to cover this and future issues. He also noted he was unaware of any problems at Bartlett or Fairbanks Memorial Hospitals. If the intent behind this legislation is to make sure that there is a "trauma-informed" system of care and that the overall direction of the inpatient psychiatric acute care industry needs to move in the direction of the more "trauma-informed" system, then more trauma assessments on patients were needed, not necessarily mandating legislation such as this. 9:31:37 AM Senator Olson questioned that if the bill passed and a related problem occurred at API, would the hospital's accreditation be jeopardized. Mr. Adler replied it would not. He clarified that at API an advocate already existed to attend to any patient complaints on an ongoing basis. 9:32:36 AM FAITH MYERS, ANCHORAGE, supported the passage of the bill. She restated that SB 8 only asks that psychiatric facilities try and make a "good faith" effort at providing the patient's gender choice for intimate care services. She believed that a callousness or apathy can develop in institutions and psychiatric facilities. She asserted that it is the Statutes and regulations that protect patients. The goals of any legislation should be to empower patients to make decisions that work toward their recovery. Reducing recidivism and trauma to psychiatric patients is the goal of SB 08. She strongly supports the passage of this bill. 9:34:40 AM DORRANCE COLLINS, ANCHORAGE, supported the passage of SB 8. Mr. Collins commented that in a recent Alaska Supreme Court decision, the justices stated there was a clear unavoidable tension between psychiatric treatment facilities seeking convenience and economics versus patient's rights which can sometimes manifest into patient abuse. The justices saw it as a given that, without oversight, no reasonable expectation existed that patients would be treated fairly or have their rights protected. Disability Law Center's (DLC) opinion stated that patients did have a legal right to privacy and that included issues of modesty. Mr. Collins indicated that the attorney for PsychRights concurred with Disability Law Center's opinion that between sixty percent and ninety percent of acute care psychiatric patients have been sexually or physically abused. He believed that recovery begins with allowing patient's to protect themselves and take part in privacy decisions. He maintained that SB 08 only asks that psychiatric facilities make a "good faith" effort to accommodate patient's requests. Mr. Collins advocated the passage of this bill. 9:36:13 AM DON ROBERTS, KODIAK, supported the bill but indicated that after listening to the comments, he realized where abuses could occur on both sides of the issue. He elaborated by stating that this law could possibly result in patient harassment of the staff. If the law passes, he would like to see legislative or institutional follow-up on its effectiveness. Mr. Roberts continued that he also recognizes a problem if the facility could dismiss a patient's request because of inconvenience. He believed that in the issue of noncompliance, more than a note in the patient's treatment folder should be required. Mr. Roberts suggested that someone outside the institution, on behalf of the patient, be informed when privacy requests were not met. 9:38:28 AM Mr. Obermeyer responded to Mr. Adler's concerns regarding non-compliance in the record. Mr. Obermeyer referred to Mr. Alder's statement that there should be a Department of Law opinion. He noted that Mr. Adler made the same statement in the committee notes of April 2007, giving the Department of Law time to respond if they saw a problem. He mentioned that Senator Davis had addressed a "grievance" procedure (SB 186). Mr. Obermeyer noted Mr. Roberts's suggestion of an outside source being informed of patient grievances. Mr. Obermeyer believed that the Department of Social Services would receive and screen complaints to evaluate the need to be investigated. He suggested that the fact that API has had only one patient complaint in five years could be attributed to the lack of a satisfactory procedure in place to file a complaint. 9:41:04 AM Senator Davis thanked the Committee for their consideration of the bill and looked forward to having it back on the floor for later passage. Senator Thomas referred to Page 2, line 2-4, regarding documentation, and expressed his hope that a more thorough description of the services be mentioned. Mr. Obermeyer responded that that the patient's record is the only thing required to be retained in the hospital. Any notes, comments, or suggestions regarding an incident would disappear once it was believed the problem had been resolved at the lowest level. Mr. Obermeyer indicated the information documented in a patient's record is something that can be retrieved later from the State or an agency or attorneys if they believed an abuse situation existed. 9:42:37 AM Senator Davis questioned if Senator Thomas meant that he believed more should be put in the record other than just documenting that the gender request was not provided. She assured the Senator that nurse's and doctor's notes automatically provide more detail than just a simple statement that the service was not provided. 9:43:14 AM SB 8 was heard and HELD in Committee for further consideration. 9:44:00 AM