To: Hospital CEOs/Administrators, Legal Counsel, Government Affairs, Public Relations staff
Please forward to: Risk Managers, Emergency Department Staff, and Psychiatric Unit Managers
From: Chelene Whiteaker, Policy Director
Taya Briley, General Counsel
Staff Contact: Chelene Whiteaker, Policy Director, chelenew@wsha.org, 206-216-2545
Subject: SINGLE BED CERTIFICATION: NEW EMERGENCY RULE AND PRACTICAL GUIDANCE FOR HOSPITALS
Purpose
The purpose of this bulletin is to:
- Inform hospitals about the Department of Social and Health Services’ (DSHS) new emergency rule for Single Bed Certification, Washington Administrative Code 388-865-0526, Single Bed Certification Procedure, and Single Bed Certification Form (CLICK HERE for materials) for psychiatric patients. These were issued in response to the recent Washington State Supreme Court decision regarding psychiatric boarding, In re the Detention of D.W. et. al. (DW), during the stay of the mandate in that decision.
- Provide information to help hospitals manage in circumstances where a designated mental health professional finds a patient to meet detention criteria, but declines to detain a patient due to no available appropriate inpatient psychiatric bed. (CLICK HERE for considerations document.)
Applicability/Scope
This new emergency rule permits single bed certifications in the following settings:
- Hospitals with a psychiatric unit
- Hospitals that can provide psychiatric services
- Psychiatric hospitals
- Residential treatment facilities
- Hospitals that are treating a patient with a psychiatric condition and a medical co-morbidity or with a continuity of care need
As a practical matter, hospital emergency departments will be the place where much of the response to the new rule plays out.
Background
On Friday, September 18, DSHS issued an emergency rule modifying the regulatory requirements for single bed certification. The emergency rule is effective from September 22 to December 26, 2014. DSHS is now beginning work on a final rule, which would become effective when the Supreme Court’s stay on issuance of the mandate in its decision in DW expires on December 26.
Recommendation
WSHA recommends a thorough review of the new rule with your hospital’s risk managers and legal counsel. Hospitals should have a process in place for use when a designated mental health professional asks your clinical staff about issuing a Single Bed Certification. IF your hospital declines a Single Bed Certification, the designated mental health professional does not have the ability to detain the patient and the hospital should consult legal counsel and evaluate the other considerations, including its obligations under Emergency Treatment and Active Labor Act.
Effect on hospitals
We are pleased to see some of the revisions provided in the emergency rule and appreciates the revised Procedure and Form for designated mental health professionals. However, we also have concerns that the new approach creates new challenges for hospitals.
Hospital Must be Willing to Provide Treatment
- A new requirement for issuing the single bed certification is the facility that is the site of the proposed single bed certification must “confirm that it is willing to provide directly, or by direct arrangement with other public or private agencies, treatment to the consumer suffering from a mental disorder for whom the single bed certification is sought.” This gives hospitals a role in the issuance of a single bed certification. However, hospitals may be reluctant to confirm willingness to provide treatment to psychiatric patients in order for a single bed certification to be issued. This could be the case for a variety of reasons, including limited psychiatric services, bed availability, uncertainty about what constitutes appropriate evaluation and treatment, and lack of clarity in the new rule.
Criteria for Issuing a Certification Must be Met
- In addition to the hospital being willing to provide the services, the request for the single bed certification must describe why the consumer meets at least one of several criteria listed in the rule. Most pertinent for hospitals is: “The consumer can receive appropriate evaluation and treatment in a hospital with a psychiatric unit, a hospital that can provide psychiatric services, or a psychiatric hospital, and the certification will be only to that facility.”
The ability of many community hospitals to provide evaluation and treatment services is likely to be limited. Even if a designated mental health professional determines the consumer can receive appropriate evaluation and treatment in a community hospital, the hospital itself must assess whether the criteria can legitimately be met before it concludes it is “willing to provide” treatment. (The ability of many hospitals to provide appropriate levels of psychiatric care was a central issue in the DW decision.)
- Language in the WAC, Procedure, and Form are likely to cause differences in interpretation and increase the uncertainty for hospitals. For example, it is unclear what “treatment” is required. WSHA would prefer more specificity in the definition of “treatment” and a more objective standard than “willing.”
Medical Co-Morbidity or Continuity of Care Need Remain a Basis for Single Bed Certifications
- Existing provisions of the WAC permitting the use of single bed certifications for patients with medical co-morbidity or who are receiving inpatient services remain in place. Single bed certifications may be issued if “the consumer, requires services that are not available at [a certified evaluation and treatment facility], or a state psychiatric hospital,” or if “the consumer is expected to be ready for discharge from inpatient services within the next thirty days and being at a community facility would facilitate continuity of care…” remain in place. See (3)(b)(i) and (ii).
Additional Comments on the Rule
Consistent with the Supreme Court’s ruling in DW, the rule recognizes the need for evaluation of the issuance of a single bed certification, “in each instance where such certification is sought for an individual.” See WAC 388-865-0526(3). WSHA believes the requirement to take the facts and circumstances of each individual patient into account will support more appropriate use of single bed certifications and would like to see this requirement included in any future rules issued by the Department.
The rule acknowledges a distinction between an appropriate single bed certification and a patient who is boarding without appropriate resources, and so is a positive step. DSHS intends to collect data to identify instances of psychiatric boarding that are inconsistent with the Supreme Court’s ruling and hope this effort allows the state to quantify the resources necessary to address the problem.
It is worth noting, the designated mental health professional continues to play a role in determining whether a patient meets detention criteria under the Involuntary Treatment Act. However, as described above, a hospital must also carefully consider its response to the designated mental health professionals’ determinations. Please refer to the “considerations for hospitals” document for more information.
Next Steps
WSHA will continue to work with DSHS on a permanent single bed certification rule. We will urge DSHS staff to better clarify appropriate use of single bed certifications in the next iteration of the rule.
Background and References
On September 5, the Washington State Supreme Court granted a stay of its decision declaring psychiatric boarding unconstitutional. The stay expires on December 26.
