SB 55-MENTAL HEALTH PATIENT RIGHTS & GRIEVANCES  1:45:19 PM CHAIR DAVIS announced that the next bill before the committee would SB 55, an Act relating to a mental health patient's rights, notifications, and grievance procedures. SENATOR EGAN moved to adopt the proposed CS for SB 55, labeled 27-LS0082\T, as the working document before the committee. CHAIR DAVIS objected for discussion purposes. THOMAS OBERMEYER, staff, Senator Bettye Davis, introduced SB 55 on behalf of the sponsor. He read from the following sponsor statement: SB 55 amends the one-paragraph mental health grievance procedure provided under AS 47.30.847. This bill governs due process and grievance procedures in all state and private mental health hospitals, clinics, and units which receive public funds. Prompted by the 8,000-10,000 admissions to mental health facilities and units in Alaska each year where there are relatively few formal grievances filed, this bill requires adequate notice, forms, advocate assistance, rapid written administrative response, right to appeal, and telephonic access to a state monitored call center to lodge a complaint immediately. Mental health patients are among the most vulnerable in Alaska. Among the thousands of individuals civilly committed or brought into locked hospital psychiatric units for forced evaluations each year, some are in handcuffs, shackles or strapped to a gurney, involuntarily medicated without consent of family or legal representative, or court ordered to receive or continue psychiatric treatment in public, private, or non-profit psychiatric clinics. There are hundreds of patient assaults and staff injuries each year. There are also thousands of children who are voluntarily committed each year usually in private facilities. Although sometimes treated with psychotropic drugs, children are considered better protected by the state, family members, legal representatives, and attorney advocates. Current statutes and regulations do little to protect psychiatric patients civilly committed 30 to 60 days, individuals detained for forced evaluation up to 7 days, or individuals detained in a jail or in a psychiatric emergency room or private unit while waiting for space in a psychiatric hospital. State and federal courts have consistently ruled that individuals who have not committed a crime and are locked up for psychiatric evaluation and treatment should not be treated like criminals and their rights are to remain intact to the greatest extent possible. Ironically, prisoners in Alaska's correctional system are afforded a much more comprehensive grievance procedure with due process rights and protections under the law than mental health patients. Upon admission to a mental health facility patients often experience an immediate loss of liberty and freedom, arbitrary exercise of authority, and may be institutionally traumatized in the process. Because of the exceptional circumstances under which mental health patients are admitted and treated, due process requires special safeguards in transparent, readily available grievance procedures and more state oversight. This bill will reduce unnecessary patient trauma, assaults, unintentional injury or death, and attendant liability and litigation experienced in other states before statutory reform. New grievance procedures under SB 5 require detailed complaint forms, three levels of administrative review requiring written answers by within 5 days by supervisory and executive staff at levels one and two, including response to urgent grievances within 24 hours. A level three final administrative appeal to the commissioner must be answered within 14 days after filing or by default is denied. A commissioner's final decision may be appealed to Superior Court within 30 days. A grievance may be filed at any time, but there is a statutory limitation of one year after being discharged from the facility or unit. All grievances filed shall become part of the patient's permanent record. Mental health facilities and units must file periodic reports of the number and type of grievances and resolutions, including litigation. The bill allows for a personal representative to act in the interest of the patient in the grievance process, as well as providing a patient advocate appointed in the mental health facility or unit. Although it is counterintuitive that more verbal and written complaints are not reported to the state or documented each year, including an estimated 250 at the Alaska Psychiatric Institute which may treat an estimated 1200 to 1500 patients per year, many facilities in this rapidly growing area of mental health are privately held and not presently compelled to report to the state Division of Behavioral Health. Private hospitals presently may only report mental health complaints to the Joint Commission for the Accreditation of Hospital Organizations (JCAHO), not the state. Furthermore, JCAHO reportedly may only review grievance procedures in participating hospitals every 2-3 years. Also, many grievances in the past have been handled verbally without creating a patient record and in-patient stays are often very short from a couple of days up to a week or two. Passage of SB 55 will improve mental health treatment, grievance reporting, and state oversight. MR. OBERMEYER related that Wilda Laughlin from the Department of Health and Social Services (DHSS) and Kate Burkhart from the Mental Health Board have concerns. CHAIR DAVIS requested a summary of all changed in version T. 1:53:32 PM JEAN MISCHEL, Legislative Counsel, Division of Legal and Research Services, Legal Affairs Agency, explained the changes in version T of SB 55. She related that page 2, line 22, to page 3, line 5, contains several additional patient rights for people undergoing evaluation or treatment in a mental health facility. She noted the patient grievance procedure has been modified in Version T to exclude the hearing officer and the administrative hearing office. On page 5, changes were made regarding the grievance process. Page 6 clarifies the urgent level of review. On page 8, the definition of the facility was changed. 2:00:48 PM KATE BURKHART, Executive Director, Alaska Mental Health Board, said she was speaking on behalf of the board and she had provided written comments in members' packets. She said today she would discuss the scope of the bill, how the bill fits into the accepted administrative law tenants, and the issue of emergency grievance. MS. BURKHART thanked the sponsor and noted that SB 55 has come a long way in meeting the sponsor's intent to improve access to a grievance procedure for vulnerable Alaskans. She addressed the scope of the bill. She said she hopes that the improved definition of "facility" limits the scope of SB 55 to "designated evaluation and treatment facilities," or hospitals with mental health units to which a person is committed involuntarily under Title 47. However, there are references in the CS that could apply SB 55 to community behavioral health centers and providers of voluntary mental health services. She related the differences between voluntary and involuntary treatment services. She suggested clearly defining the treatment setting in the bill and limiting it to hospital settings. MS. BURKHART opined if SB 55 were to apply to community behavioral health providers, it would create a conflict related to patient grievances. Anyone who receives Medicaid dollars is required to comply with federal grievance regulations. The Division of Behavior Health also has a layer of requirements. A grievance process can be included in the bill as long as all layers are taken into consideration. MS. BURKHART noted that the definition of "grievance" in the bill no longer conflicts with federal regulations. 2:06:29 PM MS. BURKHART addressed how SB 55 fits in with administrative procedures. Other than the Alaska Psychiatric Institute, the providers of involuntary mental health services are private, non-profit hospitals. They are not administrative agencies and receipt of state funds does not convert them into administrative agencies. She explained that level three reviews, which require the commissioner to make a determination, do not work because, under administrative law, hospitals do not have to submit to the commissioner's determination. MS. BURKHART voiced concern about the shifting of the burden of proof in the CS. As written now, the hospital has the burden of proof to prove something did not happen. Usually, the patient has to prove that something happened. Vulnerable patients are not always able to do so and the bill provides for patient advocates. She opined that shifting the burden of proof creates an environment where the mental health provider has to prove that something did not happen, which is not fair to the provider. She suggested the patient have representation. MS. BURKHART addressed emergency grievances that were included in the CS due to concern that the department was not tracking violent offenses against patients. All incidents are reported to the department and tracked. She emphasized that crimes against disabled people are often marginalized. She stressed that crimes are not grievances and should be reported to law enforcement. 2:10:28 PM SENATOR DYSON asked if Chair Davis would address those concerns. CHAIR DAVIS said she would look at them, but not address them today. SENATOR DYSON asked if the bill would pass from committee today. CHAIR DAVIS stated her intention to not move the bill today. SENATOR DYSON reserved his questions for the new version of the bill. SENATOR DYSON asked what size small community-based institutions are. MS. BURKHART explained that it depends on the community. SENATOR DYSON noted he has seen an abuse of overmedicated patients. 2:13:15 PM MS. BURKHART agreed that there were people who believed in medication as the answer; however, some people do not believe in medication. She said she believed that the answer lies somewhere in between. SENATOR DYSON asked if Ms. Burkhart thought there was a problem with overmedication and if there were remedies. MS. BURKHART suggested in a community setting the remedy is to work with a treatment team. In a hospital setting, the remedy is through the court system. She said she did not believe overmedication was pervasive. SENATOR DYSON asked if anything needs to be changed in statute to assist overmedicated patients. MS. BURKHART suggested increasing the number of patient advocates. She opined that in a hospital, a grievance procedure with a patient advocate is the way to go. SENATOR DYSON said he thought he heard "no." 2:16:07 PM JIM GOTTSTEIN, Law Project on Psychiatric Rights, commented on SB 55. He related his experience with court appeals being detrimental to patients due to high costs if the person loses. He suggested on page 5, line 23, adding "if such an appeal is filed, no attorney fee award against the grievant may be ordered by the court." He stressd it was important to beef up the grievance procedures and put them in regulation. He said there are not adequate remedies for overmedication and suggested the system needs to have non-medication alternatives. 2:20:34 PM FAITH MEYER, Mental Health Advocate, testified in support of SB 55. She agreed that grievance procedures should be improved because they are inadequate. She related that no patient in 2005-2006 was allowed to file a grievance. She concluded that current statute was poorly written and does not include due process or an appeal process. 2:24:32 PM DORRANCE COLLINS, Mental Health Advocate, testified in support of SB 55. He discussed the lack of grievance procedure rules to protect patient rights. He recalled the history of API's restrictions of patient's rights. He made suggestions for wording changes in the bill. CHAIR DAVIS asked if Mr. Collins was working off of version T. MR. COLLLINS said he was. He noted that he has provided written testimony. CHAIR DAVIS noted that the committee would continue to work on SB 55. SENATOR DYSON thanked the sponsor.