Report of the Legal Workgroup: Continuity of Care Advisory Panel Workgroup Members: Margaret Garrett (Co-Chair), Randall Nero (Co-Chair), Evelyn Burton, Laura Cain, Ed Kelley, Dan.
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Transcript Report of the Legal Workgroup: Continuity of Care Advisory Panel Workgroup Members: Margaret Garrett (Co-Chair), Randall Nero (Co-Chair), Evelyn Burton, Laura Cain, Ed Kelley, Dan.
Report of the Legal
Workgroup:
Continuity of Care
Advisory Panel
Workgroup Members: Margaret Garrett (Co-Chair), Randall Nero (Co-Chair),
Evelyn Burton, Laura Cain, Ed Kelley, Dan Martin, Sarah Rhine, Nevett Steele,
Denise Sulzbach, Stacy Reid-Swain, Crista Taylor
Active Participants: Janet Edelman, Mike Finkle, Scott Rose, Susan Kneller,
Dan Malone, Kathleen Ellis
October 4, 2013
Agenda
Introduction and Workgroup Charge
Legal Barriers: Issues Raised and Issues to Address
Housing
Forced Medication
Confidentiality
Advance Directives
Guardianship
Inpatient and Outpatient Involuntary Commitment
Discharge Planning and Accountability from Providers
Comments from Workgroup Members and the Public
Legal Workgroup Charge
To support the work of the broader Advisory Panel by
examining studies, data, and reports related to legal
barriers to care for the SMI population
To provide recommendations to the Advisory Panel on
ways to better address legal barriers to care, prevent
interruptions in treatment, and improve health
outcomes
Housing
Overarching Issue: SMI population should have access to
housing so that continuity of care is not disrupted
Issues Raised:
Cannot prevent discharge from hospital if there is no housing
available
If patient has capacity and wants to leave, hospital has to
discharge
Various housing options available to SMI population:
Housing First
Public Housing/Section 8
RRP/Provider Supported Housing
HUD Housing
Private Rental Housing
Assisted Living
Project Home
Homeless Shelters
Housing
Recommendations (consensus reached):
Expand Housing First statewide
Without reducing funding elsewhere
Update vulnerability index for Housing First applicants to better
capture SMI population
Those on waiting lists not be required to continually update
application
Standardize admission and termination procedures statewide
for public housing and section 8
Support legislation preventing landlords from discriminating
based on sources of income (SSI, Sect. 8, etc.)
Housing
Issues to Address (no consensus reached):
Standardize and mandate a process for admission and
termination procedures for RRP housing
Convene a smaller workgroup to examine housing issues
Consider not tying housing to level of care/other services
Change regulations for assisted living to separate the needs for
people with a mental illness living in assisted living from the
needs of the elderly and the disabled
Standardize admission and termination procedures for
emergency shelters
Establish “wet” shelters
Concerns regarding impact on small nonprofit shelters
Forced Medication
Overarching Issue: The Kelly decision
and redefining ‘dangerousness’
MD Health-General Code Ann. § 10-708(g):
“The panel may approve [forced medication] if the panel
determines that [w]ithout the medication, the individual is at
substantial risk of continued hospitalization because of:
(1) Remaining seriously mentally ill with no significant relief of the
mental illness symptoms that cause the individual to be a danger
to the individual or to others;
(2) Remaining seriously mentally ill for a significantly longer
period of time with mental illness symptoms that cause the
individual to to be a danger to the individual or others”
(emphasis added).
Forced Medication
Dep’t of Health & Mental Hygiene v. Kelly, 918 A.2d. 470
(Md. 2007):
The Kelly decision defined “danger to the individual or to
others,” as that phrase is used in § 10-708(g)(1) and (2), to
mean “danger to the individual or to others in the context of
his confinement within the institution” (emphasis added).
Issues Raised:
Clinical Review Panel (CRP) process does serve as a
check, and the CRP’s decision can be appealed
Concern that CRP is only a check in terms of clinical
appropriateness of prescribed medication and is not a legal
proceeding
Forced Medication
Issues Raised (cont.):
At administrative hearings patients without financial
resources are hampered by inability to present a
physician expert and thus the decision usually comes
down to ‘danger to others’ standard
Allows for the treatment of SMI patients who lack insight
into their condition
If SMI patients are properly treated, they can be released
earlier
Concern that there is no data for this, and state interest will not
override right to bodily integrity
Concern that lack of insight is not a legal standard – it is lack
of capacity and/or dangerousness
Forced Medication
Issues Raised (cont.):
Requiring a showing of ‘dangerousness’ within the
institution can lead to unnecessarily long and potentially
indefinite confinement of patients who are not dangerous
within the confines of an institution
Institutional providers are unable to forcibly treat nondangerous patients with severe mental illness even if
treatment is in the patient’s best interest
Forced Medication
Issues to Address (no consensus reached):
Need to redefine ‘dangerousness’ standard
Patients are being involuntarily committed because they are
dangerous in the community, but may not be considered
dangerous once committed for forced medication purposes
unless the patient commits dangerous acts in the future
‘Dangerousness’ needs to be defined more broadly, not just
focusing on the patient’s dangerousness in a hospital setting
Patients are automatically re-paneled when facts change
overtime
Confidentiality
Overarching Issue: Balancing the need to protect PHI
while ensuring such information is able to be shared
with appropriate providers
HIPAA and Other Federal Statutes
MD Health-General Code Ann. § 4-307(c):
“When a medical record developed in connection with the
provision of mental health services is disclosed without the
authorization of a person in interest, only the information in
the record relevant to the purpose of disclosure is sought
may be released.”
Confidentiality
MD Health-General Code Ann. § 4-307(j)(1):
“A health care provider may disclose a medical record
without the authorization of a person in interest:
(i) To the medical or mental health director of a juvenile or
adult detention or correctional facility if:
1) The recipient has been involuntarily committed under State
law or a court order to the detention or correctional facility
requesting the medical record; and
2) After review of the medical record, the health care provider
who is the custodian of the record is satisfied that disclosure is
necessary for the proper care and treatment of the recipient.”
Confidentiality
MD Health-General Code Ann. § 4-307(k)(1):
“A health care provider shall disclose a medical record without the
authorization of a person in interest to the medical or mental health
director of a juvenile or adult detention or correctional facility or to
another inpatient provider of mental health services in connection
with the transfer of a recipient from an inpatient provider, if: (i)
1) The health care provider with the records has determined that
disclosure is necessary for the continuing provision of mental
health services; and
2) The recipient is transferred:
A) As an involuntary commitment or by court order to the
provider
B) Under State law to a juvenile or adult detention or
correctional facility; or
C) To a provider that is required by law or regulation to admit
the recipient”
Confidentiality
Issues Raised:
Current federal and state statutes have addressed issues
concerning the PHI of SMI patients
Mental health records are treated more securely than general
medical records
MD does have a statewide health information exchange
(CRISP) that allows medical records to be queried
Confidentiality
Issues Raised (cont.):
Not having access to mental health records prevents
providers from effectively treating SMI patients in both the
inpatient and outpatient setting
Most significant barrier to ensuring continuity of care for SMI
patients as they move through health care system
Mental health records are not able to be queried by
CRISP
Can only pull the entire medical record, not specific sections
Hospitals are the only participants
Confidentiality
Issues to Address (no consensus reached):
Need to clarify what ‘minimum necessary’ means in § 4307(c)
“[O]nly the information in the record relevant to the purpose
for which disclosure is sought may be released.”
Promote pilots to expand CRISP to include mental health
providers
Have DHMH draft memo on whether CRISP can query
specific information in a medical record
Allow correctional and juvenile facilities to participate in
CRISP
Confidentiality
Issues to Address (cont.):
Have DHMH update document comparing federal privacy
statutes and regulations with MD privacy statutes and
regulations
Has not been updated since 2003
Include section devoted to mental health records
Have DHMH clarify when providers can release
information without consent in order to facilitate care
transitions
Provide specific examples of when and what information can
be released
Advance Directives
Overarching Issue: The Role of Advance Directives
MD Health-General Code Ann. § 5-602.1
“An individual who is competent may make an
advance directive to outline the mental health
services which may be provided to the individual if
the individual becomes incompetent and has a need
for mental health services either during, or as a
result of, the incompetency.”
Advance Directives
MD Health-General Code Ann. § 5-604
“An advance directive may be revoked at any time by a
declarant by a signed and dated written or electronic
document, by physical cancellation or destruction, by an
oral statement to a health care practitioner or by the
execution of a subsequent directive.”
Issues Raised:
Allow individuals to establish desired end-of-life care
decisions ahead of time
It can be rescinded by the patient at any time regardless
of competency and guardianship
Concerns about purpose and effectiveness when a
patient lacks capacity
Advance Directives
Recommendations (consensus reached):
Waive the Advance Directive Registry Fee for those
who cannot afford it
Provide education on advance directives
Issues to Address (no consensus reached):
Insert Ulysses clause into advanced directives so
that if there is an advance directive, it cannot be
rescinded until patient has capacity
Have a person with capacity choose for it to be nonrevocable, which becomes legally binding
Concern about coercion
Advance Directives
Issues to Address (cont.):
Create a delay in terms of revoking an advance directive
so that revocation does not take effect until 72 hours after
revocation
Amend Maryland Health-General Code Ann. § 10-632 to
allow for a determination by an ALJ as to whether or not
someone has the capacity to sign voluntarily to be
admitted to a facility for psychiatric treatment so that
individuals under guardianship who are competent do not
lose their civil rights
Guardianship
Overarching Issue: Balancing individual liberty with
care decisions
Issue: Processes available for establishing
guardianship
Issues Raised:
Involuntary commitment procedures protect due
process rights
A hospital cannot hold a non-psychiatric patient who
lacks capacity in order to establish a guardian
without committing them
Establishing guardianship can be a burdensome and
expensive process, particularly for families
Guardianship
Issues Raised (cont.):
Even with guardian, involuntary commitment can be
a burdensome process
Guardians cannot voluntarily admit someone without
a hearing
Although the guardianship statute directs that courts
shall appoint a guardian if the criteria are met (see §
13-705(b)), a court may still not appoint a guardian if
the guardian is unable to meet the needs of the
individual or have the authority to compel treatment
See Johns Hopkins Bayview Medical Center v. Carr where
despite finding an individual incompetent, guardianship was
not appointed based on the individual’s objection to
guardianship and anticipated lack of cooperation.
Guardianship
Recommendations (consensus reached):
Provide education on what guardianship covers
Guardian’s ability to consent to psychotropic medications and
ECT
Some states allow guardians to admit people to the hospital,
some do not
Clarification by legal aid about guardianship process
to support and educate families
Address issues that include: prohibitive costs and time delay
Families need more support and education to go through the
process
Guardianship
Issues to Address (no consensus reached):
If guardianship has been filed (from time of second
certification) the institution can retain an individual for
three business days (or until next day courts are in
session) and courts can consider an expedited
emergency process
Potential concerns regarding discrimination if targeted at
individuals with suspected mental illness
Allow a guardian to voluntarily admit someone with
two physician certifications
Inpatient Involuntary
Commitment
Overarching Issues: Individual freedom, competency,
safety
Issue: Involuntary Commitment Standards
Issues Raised:
Dangerousness Requirement: Whether the individual presents
a danger to the life or safety of the individual or of others. MD
Health-General Code Ann. § 10-632(e).
Some misinterpret dangerousness requirement to mean
imminent danger
Is an individual with guardianship able to voluntarily admit
Lack of a gravely disabled component in Maryland
Need a more accountable system that meets needs
System will not provide access to a patient with mental illness
unless they meet dangerousness standard
Inpatient Involuntary
Commitment
Issues to Address (no consensus reached):
Add a gravely disabled component to mental illness definition
Some believe use of clinical criteria would result in selection of a
more appropriate population and allow for earlier intervention
Concern that this it isn’t necessary to differentiate broader
danger from imminent risk of violence because Maryland’s
dangerous standard does not require an imminent risk or threat
of serious bodily injury to self or others and thus includes less
serious and/or immediate harms
The current “dangerous” standard is interpreted by ALJs as
including non-violent behavior that presents a danger to the
person’s health and well-being
Concern that defining the boundaries of “danger” eliminates the
ability of clinical evaluators to use their experience and
expertise
Inpatient Involuntary
Commitment
Issues to Address (cont.):
Develop and implement training program for emergency
department
Should include follow-up to test competency and procedures to
address problems identified
Outpatient Involuntary
Commitment
Issue: Court ordered outpatient treatment is currently not an
option in Maryland
Issues Raised:
Can be effective in providing care to persons with mental illness
who refuse treatment or don’t realize they are ill
Contribute identifying persons at risk of violence against self and
others and preventing that violence
Encourage people to enter treatment willingly, help to better
manage their illness
Can help prevent episodes of deterioration and related negative
outcomes
Less restrictive alternative to inpatient commitment
Reduce inpatient stay, potentially save dollars, relieve strain on
families and caretakers
Outpatient Involuntary
Commitment
Issues Raised (cont.):
Potential civil liberties issues
Could unfairly target persons or groups (i.e. African
Americans) with mental illnesses, creates stigma
May wrongly assess individuals as being at imminent risk
of danger toward others
Could drive people away from treatment
Draw resources away from other issues such as lack of
access to care
There is a general lack of data (which is mixed) on the
effectiveness of outpatient involuntary commitment
Outpatient Involuntary
Commitment
Issues raised (cont.):
Some research shows that persons with a mental illness, alone,
pose no statistically greater risk of violence than the general
public
Studies do not conclusively show that a court-order is
necessary to achieve the reported positive results of a wellfunded IOC system
Maryland does not currently have the robust and coordinated
voluntary services array that all agree are needed – involuntary
commitment may not be answer
Without significant increases in funding (that is sustained longterm), IOC diverts resources from those who want and use
services
Studies on IOC leave out the consumer voice, raising serious
questions about claims of effectiveness, certainly in terms of
long-term engagement
Discharge Planning &
Accountability from Providers
Issue: Contacting family when discharging a
patient if the family is part of the continuing care
Issues Raised:
Ensuring families can be involved in discharge and
continuity of care
TJC/CMS COP requirement already supports this
Family may not want to be involved; patient may not want
family involved
May be more of a clinical practice issue rather than
legislative; currently not required by statute (unless
consent is obtained; see COMAR § 10-809(a)).
Discharge Planning &
Accountability from Providers
Issues to Address (no consensus reached):
Require a time notification (i.e. at least 24 hours before
discharge)
Notify the family if there is a history of violence against
the family
Need to take into account other side where the patient may
have history of being abused, must also consider how to
protect individual
Discharge Planning &
Accountability from Providers
Issue: Provision of housing services
Issues Raised:
Make hospitals more accountable for housing efforts
The aftercare statute doesn’t say there has to be a plan for
supportive housing, so this would enforce that need
Social problem vs. legal problem
Discharge Planning &
Accountability from Providers
Recommendation (consensus reached):
Clarification on when families need to be/can be included
in the discharge process (discussion in after-plan,
clarification of public agencies on discharge of wards from
psychiatric facilities)
Issues to Address (no consensus reached):
Accountability for finding housing services at
discharge
Require at least more documentation of what efforts were
made to find housing or services – need more oversight of
hospitals
Discharge Planning &
Accountability from Providers
Issues to Address (cont.):
Shouldn’t discharge to homelessness, there needs to be
more case management and the hospital should connect
to care coordination in pre-discharge plans
Maybe not something that can be effectively addressed
legally
Bed-holds or housing guarantees for individuals that have
housing and have to be hospitalized
Revolving door problem
Could pose a problem with fee for service environment and
private pay facilities
Discharge Planning &
Accountability from Providers
Issue: Jackson limits for IST cases
Jackson v. Indiana, 406 U.S. 715 (1972): “a[n incompetent]
defendant cannot be held more than the reasonable period of
time necessary to determine whether there is a substantial
probability that he will attain competency in the foreseeable
future…. Due process requires that the nature and duration of
commitment bear some reasonable relation to the purpose for
which the individual is committed”
Maryland Statute: “the court shall dismiss the charge against a
defendant found incompetent to stand trial:
When charged with a capital offense, after the expiration of 10
years;
When charged with a felony or crime of violence…, after the
lesser of the expiration of 5 years or the maximum sentence for
the most serious offense charged; or
When charged with an offense not covered under paragraph (1)
or (2)… after the lesser of the expiration of 3 years or the
maximum sentence…” [MD Code-Annotated, Criminal
Procedure §3-107(a)].
Discharge Planning &
Accountability from Providers
Issues Raised:
The limits may be too long; resulting in people occupying beds
far longer than necessary because they are held until a judge
thinks the treatment plan is adequate.
Cases may be held open for lack of discharge plan
Charges can get folded into each other affecting time
requirements
The MD requirements are much longer than other states.
Issues to Address (no consensus reached):
Put limits on treatment (there should be shorter timeframes)
Statutory change to give discretion to courts to not follow
minimum or maximum time frames
Concern that if statute gets opened, judiciary will take control
Comments from Workgroup
Members and the Public