report of the legal workgroup: continuity of care advisory panel workgroup members: margaret garrett...
TRANSCRIPT
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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
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AgendaIntroduction and Workgroup Charge
Legal Barriers: Issues Raised and Issues to AddressHousingForced MedicationConfidentialityAdvance Directives Guardianship Inpatient and Outpatient Involuntary CommitmentDischarge Planning and Accountability from Providers
Comments from Workgroup Members and the Public
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Legal Workgroup ChargeTo 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
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HousingOverarching 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 FirstPublic Housing/Section 8RRP/Provider Supported HousingHUD HousingPrivate Rental HousingAssisted Living Project HomeHomeless Shelters
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HousingRecommendations (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.)
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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 issuesConsider 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 sheltersEstablish “wet” sheltersConcerns regarding impact on small nonprofit shelters
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Forced MedicationOverarching 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).
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Forced MedicationDep’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
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Forced MedicationIssues 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
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Forced MedicationIssues 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 institutionInstitutional providers are unable to forcibly treat
non-dangerous patients with severe mental illness even if treatment is in the patient’s best interest
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Forced MedicationIssues to Address (no consensus reached):
Need to redefine ‘dangerousness’ standardPatients 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
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ConfidentialityOverarching 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.”
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ConfidentialityMD 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.”
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ConfidentialityMD 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
providerB) Under State law to a juvenile or adult detention or
correctional facility; orC) To a provider that is required by law or regulation to
admit the recipient”
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ConfidentialityIssues Raised:
Current federal and state statutes have addressed issues concerning the PHI of SMI patientsMental 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
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ConfidentialityIssues Raised (cont.):
Not having access to mental health records prevents providers from effectively treating SMI patients in both the inpatient and outpatient settingMost 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 CRISPCan only pull the entire medical record, not specific
sectionsHospitals are the only participants
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ConfidentialityIssues to Address (no consensus reached):
Need to clarify what ‘minimum necessary’ means in § 4-307(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
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ConfidentialityIssues to Address (cont.):
Have DHMH update document comparing federal privacy statutes and regulations with MD privacy statutes and regulations Has not been updated since 2003Include section devoted to mental health records
Have DHMH clarify when providers can release information without consent in order to facilitate care transitionsProvide specific examples of when and what
information can be released
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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.”
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Advance DirectivesMD 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 guardianshipConcerns about purpose and effectiveness when a
patient lacks capacity
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Advance DirectivesRecommendations (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 capacityHave a person with capacity choose for it to be non-
revocable, which becomes legally binding Concern about coercion
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Advance DirectivesIssues 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
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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
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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 treatmentSee 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.
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GuardianshipRecommendations (consensus reached):
Provide education on what guardianship coversGuardian’s ability to consent to psychotropic
medications and ECTSome 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
delayFamilies need more support and education to go
through the process
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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
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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
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Inpatient Involuntary Commitment
Issues to Address (no consensus reached): Add a gravely disabled component to mental illness
definitionSome 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
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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
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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
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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 careThere is a general lack of data (which is mixed) on
the effectiveness of outpatient involuntary commitment
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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 well-funded 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 long-term), 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
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Discharge Planning & Accountability from
ProvidersIssue: 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 careTJC/CMS COP requirement already supports thisFamily 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)).
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Discharge Planning & Accountability from
ProvidersIssues 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 familyNeed to take into account other side where the
patient may have history of being abused, must also consider how to protect individual
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Discharge Planning & Accountability from
ProvidersIssue: Provision of housing services
Issues Raised:Make hospitals more accountable for housing effortsThe 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
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Discharge Planning & Accountability from
ProvidersRecommendation (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
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Discharge Planning & Accountability from
ProvidersIssues 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 hospitalizedRevolving door problem Could pose a problem with fee for service
environment and private pay facilities
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Discharge Planning & Accountability from
ProvidersIssue: 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)].
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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
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Comments from Workgroup Members and
the Public