Changes to Washington’s Involuntary Treatment Laws that Impact Hospitals

Change of Law: Hospital Action Required

 

To:	Rural Hospital Chief Executive Officers, Emergency Department Directors, Psychiatric Hospital and Inpatient Behavioral Health Executives and Administrators, Legal Counsel and Government Affairs Staff Please forward to all emergency department and inpatient psychiatric and substance use disorder unit staff
From:	Jaclyn Greenberg, JD, LLM, Policy Director, Legal Affairs (outgoing) JaclynG@wsha.org | 206-216-2506Cara Helmer, BSN, RN, JD, Policy Director, Legal Affairs (incoming), CaraH@wsha.org | 206-577-1827Brooke Evans, PhD, MSW, LICSW, CSAC, Director, Behavioral Health BrookeE@wsha.org |  206-577-1831
Subject:	Changes to Washington’s Involuntary Treatment Laws that Impact Hospitals

 

Purpose

This bulletin provides hospitals information on recent changes to 71.05 RCW, Washington state’s Involuntary Treatment Act (ITA) and 71.34 RCW, the minors’ involuntary treatment statute (together, involuntary treatment laws).  Two bills make changes to the involuntary treatment laws that directly impact hospital practices. Unless otherwise stated, these changes are effective July 25, 2021.

• SSB 5073 – Amending the involuntary treatment laws, makes several changes to both the adults and minor statutes including:
  • Authorizing the use of video for ITA evaluations of minors — in effect now;
  • Requiring Designed Crisis Responders (DCRs) to inquire about a person’s Mental Health Advance Directive (MHAD);
  • Authorizing the transfer of a patient held on involuntary basis between an Evaluation and Treatment (E&T) facility and Secure Withdrawal Management and Stabilization (SWMS) facility at any time following the patient’s initial examination and evaluation without further court review;
  • Modifying requirements for Less Restrictive Alternative orders (LRAs) in several ways, including authorizing them in the context of a patient requiring substance use-related treatment (Ricky’s Law); and,
  • Removing E&Ts on Indian tribal lands’ exclusive jurisdiction for provision of involuntary treatment for people of American Indian/Alaska Native background.

• SHB 1314 – Diverting veterans from involuntary treatment requires hospitals to inquire about an adult patient’s veteran status for purposes of determining whether the person may receive mental health services at a Veterans Health Administration (VA) facility and if so and appropriate in light of the person’s condition, working with DCRs and the VA to arrange transfer.

Applicability/Scope
SSB 5073 and SHB 1314 apply to all hospitals that provide evaluation and treatment services under the involuntary treatment laws, including:

• Psychiatric hospitals licensed under RCW 71.12; and
• Acute care hospitals licensed under RCW 70.41 – with emergency departments that receive and evaluate whether a patient should be detained and hospitals that accept Single Bed Certifications (SBCs) for purposes of providing involuntary mental health treatment.

Recommendation

1.  Know the law. Review this bulletin and the changes enacted by SSB 5073 and SHB 1314 with legal counsel and risk managers to determine the impact on your hospital and any resulting changes that may be required to policies and procedures.

2. Update policies and procedures and forms.

All hospitals will likely need to revise policies and procedures for the following:

1. • Expanding the use of video for ITA evaluations to minors;
   • Expanding the timelines for transfer of patients to SWMS facilities;
   • Consulting with DCRs about a patient’s MHAD; and
   • Determining a patient’s benefit status about inquiries regarding a person’s veteran status.

For hospitals that provide involuntary treatment through LRAs, policies and procedures related to that subset of involuntary treatment will also need to be updated to incorporate:

1. • Evaluations for substance use disorder;
   • Consultation about creation of a MHAD;
   • Periodic court review; and
   • Timelines for conditional release orders.

For hospitals serving people of American Indian/Alaska Native background, policies and procedures will need to be updated to reflect changes to the jurisdiction of E&Ts on tribal lands and the authority of Indian tribes to initiate an initial examination and evaluation on behalf of a patient under Joel’s Law, which permits families and caregivers to petition for a person’s involuntary treatment if a DCR declines to do so.

3. Educate employees. Involuntary treatment is a complex area of health care with significant legal overlay. Implementation can vary by region, county and facility. Help staff understand these changes to ensure people requiring involuntary treatment and their loved ones may fully exercise their rights while receiving necessary care and avoid undermining the legal process that facilitates access to this necessary type of treatment.

4. Coordinate with DCRs, prosecuting attorneys, tribal leaders and other relevant partners. Given the legal overlay of providing involuntary treatment, WSHA encourages hospitals to consult with their local DCRs and prosecuting attorneys in particular, and other partners such as tribal leaders in general, when preparing to implement the changes to the involuntary treatment laws. Coordination with local DCRs and prosecuting attorneys is especially important around the use of video for ITA evaluations.

Overview

SSB 5073 – Amending the involuntary treatment laws. The changes in SSB 5073 are specific to certain areas of involuntary treatment, such as for minors, people with substance use disorder (SUD), people of American Indian/Alaska Native background, and involving Less Restrictive Alternative orders (LRAs). The main timelines and requirements for inpatient involuntary treatment are unchanged.

WSHA supported SSB 5073 and contributed language to help improve the bill. We believe the changes in the bill offer helpful flexibilities that support increasing access to care. The changes in SSB 5073 are effective July 25, 2021 unless otherwise noted.

• Effective now, minors’ involuntary treatment evaluations may be done by real-time video. In 2020, the legislature authorized DCRs to use real-time video for interviewing adult patients to determine whether to detain them under the ITA, provided that a “health care professional” or “professional person” was present with the patient to help facilitate the interview. Subsequently, the Health Care Authority and the Washington Supreme Court endorsed the use of video to minimize face-to-face interactions during the ongoing public health emergency associated with COVID-19. However, the use of video was not permitted for minors until now. Effective immediately, DCRs may use real-time video to evaluate a minor for involuntary treatment under the same guidelines as adults.

WSHA supports the use of video for ITA evaluations where it is safe, appropriate and feasible to do so. But there are many factors that will inform the analysis for any one case. This is especially true during the ongoing public health emergency associated with COVID-19 and the still-in-effect Supreme Court Order on ITA proceedings hearings.

WSHA encourages members to review the WSHA bulletin on Use of Video for ITA evaluations. It outlines the requirements (i.e. who constitutes a “health care professional”? What does “real-time video” include and exclude?) and discusses several practical considerations including the fact that video evaluations are permitted, not mandatory; regional variation may impact DCRs’ use of video; and employing HIPAA-compliant technology, among others.

• DCRs are required to inquire about Mental Health Advance Directives (MHADs) for adults. DCRs will now be required “to attempt to ascertain” if an adult person has executed a MHAD as part of the DCR’s investigation and evaluation for involuntary treatment. This may involve asking the individual or a loved one. It may also involve asking the hospital to check the person’s medical record, since the authorizing law requires that a person’s MHAD be included in their medical record (RCW 71.32.150).

Releasing a copy of a person’s MHAD to a DCR is a permitted disclosure under Washington’s medical records privacy statute (RCW 70.02.230(2)).

As discussed in the WSHA bulletin on 2021 changes to the law authorizing MHADs, these documents are important tools for advance care planning, self-determination, and crisis de-escalation. They may allow a person to avoid more prescriptive treatment, such as involuntary treatment, at an inpatient treatment setting or otherwise. WSHA encourages all hospitals that provide behavioral health services, whether in a specialized unit or not, to ensure staff are equipped to respond to a request about a MHAD.

• Transfers for a person requiring involuntary SUD treatment between a hospital and a SWMs facility may take place “at any time during the involuntary treatment hold” after the initial ITA evaluation for “the remainder of the commitment period without further court review.” This change is directed at improving the implementation of Ricky’s Law, which extended the ITA to people with SUD in 2018. It is intended to help increase access to secure withdrawal management (i.e. secure detox) for people requiring involuntary SUD treatment, by reducing the number of hearings required to initiate that treatment once the person has been determined to meet involuntary treatment criteria.

Under existing involuntary treatment laws, Washington courts interpreted the laws’ authority to transfer a patient between an E&T and a SWMS as requiring a fresh petition. This triggered a delay in access to care and demand for limited involuntary treatment-based resources at both the receiving and accepting facilities. To address this, SSB 5073 amended RCW 71.05.210(2) to explicitly state that when a professional person (i.e. physician or mental health professional) determines that the initial needs of the person would be better served in the other facility type, a patient transfer may be initiated without further court review. This change does not impact the law that says a person may only be referred to SWMS facility if that facility has adequate space for the person. That requirements remains in effect until July 1, 2026.

For more on Ricky’s Law, see here for slides on WSHA’s recent webcast on implementing Ricky’s Law. See here for the WSHA bulletin on Ricky’s Law, and here for WSHA’s guidance on managing considerations for Ricky’s Law patients.

• Less Restrictive Alternative orders (LRA) for minors and adults are modified to increase oversight and access and to better incorporate Ricky’s Law. Existing involuntary treatment laws do not permit a person with SUD to receive less restrictive alternative treatment (i.e. outpatient involuntary treatment). In addition, the laws offer little direction to help with adherence to an LRA. For instance, the laws were silent on ongoing oversight or coordination related to an LRA. The laws were also silent on related tools to help a person post-LRA from deteriorating to the point of requiring involuntary treatment again, such as through the creation of a MHAD.

Under SSB 5073, all this has changed under the LRA laws, RCW 71.05.585 and RCW 71.34.755. Specifically:

• • A SUD evaluation may be done as an alternative to or in addition to a psychiatric evaluation for purposes of LRA treatment.
  • It is a requirement of providing LRA treatment to consult with the person about creating a MHAD.
  • Courts are authorized to modify the terms of an LRA after considering input from the facility designated to provide services under an LRA. Courts are also authorized to conduct periodic review and may require court appearances for this purpose.
  • The timelines for conditional release under RCW 71.05.340 are expanded so that if the professional person in charge determines outpatient treatment is appropriate prior to or at the expiration of the inpatient commitment, then the outpatient care may be required for 90 days inclusive of the existing commitment period for persons under a 14-day commitment or a 90-day commitment, and 180 days if the underlying commitment was for 180 days.
  • A care coordinator is authorized to disclose information and records related to mental health services for purposes of implementing an LRA. Note that this is now a permitted disclosure in Washington’s medical records privacy statute for mental health, RCW 70.02.230 (adults) and RCW 70.02.240 (minors).

The definition of “less restrictive alternative treatment” for adults has been amended to  clarifying that it includes treatment pursuant to a LRA order (RCW 71.05.240 or RCW 71.05.320), treatment pursuant to a conditional release order (RCW 71.05.340), and treatment pursuant to an assisted outpatient behavioral health treatment order (RCW 71.05.148).

That the definition of “less restrictive alternative treatment” for minors has been amended to mean a “program of individualized treatment in a less restrictive setting than inpatient treatment” that includes residential treatment.

• The exclusive jurisdiction of E&Ts on Indian tribal lands for provision of involuntary treatment for people of American Indian/Alaska Native background has been removed, with other changes to facilitate access to involuntary treatment for these individuals. Tribes are extended the ability to petition a court for a person’s involuntary treatment under Joel’s Law, which authorizes family and legal guardians to seek involuntary detention if a Designated Crisis Responder declines or fails to conduct the evaluation. These changes may not impact hospital practices directly but hospitals are advised to be aware of them in the event family or loved ones make inquiries.

SHB 1314 – Diverting veterans from involuntary commitment. Effective July 25, 2021.  This law is intended to help veterans who meet criteria for involuntary treatment potentially transfer to a Veterans Health Administration (VA) facility for that type of care or, if appropriate, less restrictive alternatives.  That said, the VA currently has one facility in Western Washington capable of providing involuntary treatment with limited bed capacity. The VA facility in Eastern Washington is undergoing renovations and there is no date yet for reopening. WSHA will communicate with members about VA bed capacity as news becomes available.

Hospitals are strongly encouraged to work with their local DCRs when a veteran meets criteria for involuntary treatment and triggers the application of SHB 1314. It is the DCRs’ obligation to find appropriate placement.

SHB 1314’s requirements under the evaluation for emergency detention procedures under RCW 71.05.153

• A hospital is required to inquire about an adult person’s veteran status or eligibility for veterans benefits during the 12-hour evaluation period DCRs have to determine whether a person meets criteria for involuntary treatment. If the person appears potentially eligible for veteran benefits, the hospital must inquire whether the person would be amenable to treatment by a veterans health administration (VA) facility compared to other relevant treatment options (such as remaining at the hospital). The person’s preferences and eligibility for benefits must be shared with the DCR.

• The DCR is then obligated to first refer the person to a VA facility capable of meeting the person’s needs, such as the involuntary treatment options available at the Seattle division of the VA Puget Sound health care system, if appropriate in light of all reasonably available information about the person’s circumstances.

• If the VA accepts the person for treatment, the hospital, VA and DCR must “work to make arrangements to have the person transported” to the VA.

Background on SSB 5073 and SHB 1314

SSB 5073. During summer and fall 2020, legislators in the House and Senate convened a series of meetings related to the implementation of Ricky’s Law, the law extending the involuntary treatment laws to people with SUD needs. During these meetings, several gaps in implementation were identified from initial examination and DCR referral in the emergency department all the way to the court process for people committed to a SWMS facility.

WSHA actively participated in those meetings and took a leadership role in addressing the implementation gap. WSHA organized and hosted a webinar on Ricky’s Law in December 2020, alongside the Health Care Authority, the Washington Association of Designated Crisis Responders, the two SWMs facilities providers and the Washington Chapter of the American College of Emergency Physicians. Slides from the webinar are available here. Click here to view the WSHA Webcast: Implementing Ricky’s Law.

Background to SHB 1314. Legislation related to diverting veterans to the VA has been considered for the last three legislative sessions. Family members of veterans continue to raise concern that their loved ones cannot gain access to VA services due to the complexities associated with transferring them from the hospital they arrive at, among other reasons. Solutions to this problem are challenged by the facts that the VA is a federal entity and not subject to state law, limited involuntary treatment options exist at VA facilities and complexities with transport.

WSHA developed the language in SHB 1314 (and previous bills) in consultation with WSHA members and a coalition of other stakeholders including the Washington Association of Designated Crisis Responders, the Council for Behavioral Health, and the Washington State Association of Counties. We believe the language appropriately recognizes the roles of each of the hospital and DCR in helping a person find suitable involuntary treatment placement, as well as the complexities with federal jurisdiction and arranging transport.

References

2021 New Laws

• Amending the involuntary treatment laws – SSB 5073
• Diverting veterans from involuntary commitment – SHB 1314
• Updating the Mental Health Advance Directive Laws – ESSB 5370

Washington Laws

• Supreme Court Order – Involuntary Treatment Proceedings during the public health emergency – in effect now until further notice
• Involuntary Treatment Act – 71.05 RCW
• Behavioral Health Services for Minors – 71.34 RCW
• Mental Health Advance Directives full statute – 71.32 RCW
• Less Restrictive Alternative Requirements – adults – RCW 71.05.585
• Less Restrictive Alternative Requirements – minors – RCW 71.34.755

WSHA bulletins and resources on involuntary treatment and behavioral health

• WSHA bulletin on 2021 changes to the law authorizing MHADs
• WSHA bulletin on permitted disclosure of mental health and substance use disorder-related personal information (2021)
• WSHA bulletin on Use of Video for ITA evaluations (2020)
• WSHA Webcast: Implementing Ricky’s Law (2020)
• WSHA slides: Implementing Ricky’s Law (2020)
• WSHA bulletin on Family Initiated Treatment (2019)
• WSHA bulletin on Ricky’s Law (2018)
• WSHA guidance on considerations for managing SUD patients under Ricky’s Law (2018)
• WSHA bulletin on Joel’s Law (2015)
• Joel’s Law process

WSHA’s 2021 New Law Implementation Guide
Please visit WSHA’s new law implementation guide online. The Government Affairs team is hard at work preparing resources and information on the high priority bills that passed in 2021 to help members implement the new laws, as well as links to resources such as this bulletin. In addition, you will find the Government Affairs team’s schedule for release of upcoming resources on other laws and additional resources for implementation.