Change of Law: Hospital Action Required
To: Chief Executive Officers, Chief Nursing Officers, WSHA Behavioral Health Work Group,
WSHA ITA Expert group, Legal Counsel and Government Affairs Staff
Please forward to directors of emergency departments and psychiatric unit staff
From: Jaclyn Greenberg, JD, LLM | Policy Director, Legal Affairs
JaclynG@wsha.org | (206) 216-2506
Subject: Changes to the Involuntary Treatment Act (ITA) – Part 2 – Use of Video for ITA
Evaluations, during COVID-19 and beyond
Purpose
The purpose of this bulletin is to review the use of real-time video technology for interviewing adult patients to determine whether to detain them under the Involuntary Treatment Act (ITA). Two new laws effective June 11, 2020, ESHB 2099 and 2E2SSB 5720, permit video technology to be used by Designated Crisis Responders (DCRs) to interview a person held under the ITA, so long as a health care professional is present with the patient to facilitate the interview. The use of video has also been endorsed by the Health Care Authority (HCA) and the Washington Supreme Court to minimize unnecessary face-to-face interactions during COVID-19. Video evaluations are permitted now.
This bulletin is part of a series on changes to Washington state’s involuntary treatment laws. See Part 1 – Key Changes to the ITA for other changes.
Applicability/Scope
2E2SSB 5720 and ESHB 2099 apply to all hospitals who provide evaluation and treatment under the state’s involuntary treatment statutes, RCW 71.05 and RCW 71.34, including:
- psychiatric hospitals licensed under RCW 71.12; and,
- acute care hospitals licensed under RCW 70.41, including hospitals whose emergency departments receive and evaluate whether a patient should be detained and those that accept Single Bed Certifications.
Note: video evaluation is only permitted for adults. It is not permitted for minors.
Recommendation
- Review this bulletin.
- Review the Washington Supreme Court order on civil commitment proceedings during the public health emergency, specifically Article 3 (Order).
- Attend WSHA’s upcoming webcast on Changes to the Involuntary Treatment Act on Friday, June 5 at 10 am. Register here.
- Discuss with your local DCRs whether the use of real-time video is feasible for your hospital. Considerations include your hospital’s ability to provide the hardware and staff necessary to facilitate the use of video. DCRs will need to weigh other considerations as well. Even if a hospital wants to use video, DCRs may not.
- If you and the DCRs agree that video may be used, update your hospital’s processes and procedures regarding ITA evaluations to incorporate this new option.
Overview
WSHA supports the use of video for ITA evaluations where safe, appropriate and feasible to do so. WSHA supported the concept and contributed language to both ITA bills allowing DCRs to use video to interview patients (“video evaluation”) and is pleased to see it become law. WSHA is participating in two workgroups developing guidance for DCRs and facility staff to help operationalize the law. WSHA will share those guidance documents when they become available.
Video evaluation is especially useful during the ongoing public health emergency, to help minimize unnecessary face-to-face interactions.
Under the new laws, “video” for purposes of ITA evaluations is defined to mean, “the delivery of behavioral health services through the use of interactive audio and video technology, permitting real-time communication between a person and a designated crisis responder. “Video” does not include the use of audio-only telephone, facsimile, email, or store and forward technology. (Abbreviated definition.)
New video evaluation law effective June 11, 2020. Under the ITA, DCRs are required to personally interview a person who may need to be detained as a result of a behavioral health disorder, including mental health disorder and substance use disorder. This requirement is for both emergent and non-emergent situations.
Effective June 11, 2020, DCRs are authorized to conduct ITA evaluations by video, “provided that a licensed health care professional or professional person who can adequately and accurately assist with obtaining any necessary information is present with the person subject to the evaluation at the time of the interview.” Video technology may be used for both emergency and non-emergent detention investigations.
Note: This requirement is subject to an order by the Washington Supreme Court governing civil commitment proceedings during the pandemic, as discussed below.
Video evaluation during the continuing public health emergency. As a result of COVID-19, HCA endorsed video evaluation prior to June 11, 2020. The Washington Supreme Court subsequently adopted HCA’s position in an order addressing civil commitment proceedings generally during the emergency.
- HCA released guidance encouraging the use of video technology (HCA Guidance), stating that “RCW 71.05.150, which pertains to the emergency ITA evaluations and detentions, does not prohibit conducting an emergency ITA evaluation by live and HIPAA compliant video.” For purposes of the public health emergency, the requirement to “personally interview” the person was interpreted by HCA to mean “either in person or through secure video.” HCA recommended that DCRs conduct emergency evaluations in person whenever safe and possible. HCA recommends but did not require a health care professional to be present to facilitate the evaluation.
- The Washington Supreme Court issued an order for civil commitment proceedings that aligns with HCA’s guidance about video evaluations (Order). WSHA strongly advocated for this Order to ensure that hospitals had the flexibility necessary to respond appropriately to the pandemic. Article 3 of the Order refers to video evaluations. It requires DCRs to conduct in-person evaluations for emergent petitions “whenever safe or feasible” and if it isn’t, they may use video if the technology is available. Video evaluations may also be used for non-emergent petitions. Article 3 requires a health care professional to be present with the patient “if the DCR and facility together determine that presence is necessary.” The Order is in effect now until further notice.
The presence of a health care professional at a video evaluation during the pandemic. Regardless of the flexibility the Supreme Court Order provides with respect to the presence of health care professional at the time of the evaluation, hospitals that determine that use of video for ITA evaluations is feasible should create workflows and processes geared around a health care professional being present—since that is likely required in most cases (i.e. someone is a danger to themselves or others) and it is the legal requirement when the current emergency ends and the Order is rescinded.
Practical considerations. Hospitals who receive patients in their emergency departments and/or psychiatric units and who make referrals to DCRs will want to consider the following:
Practical considerations. Hospitals who receive patients in their emergency departments and/or psychiatric units and who make referrals to DCRs will want to consider the following:
- Video evaluation is not mandatory. There is no requirement to use video for ITA evaluations or that hospital staff facilitate the use of video if requested by a DCR. Hospitals should consult with their local DCRs about whether video evaluations are feasible for the hospital. Relevant considerations include the availability of a health care professional, the safety of patients and the availability of appropriate hardware and software.
- Regional variation will impact use of video evaluations. DCRs have been strongly encouraged to consult with local prosecutors to ensure that the prosecutors will go forward with petitions generated through video evaluations. Presently, King County DCRs are not using video evaluations. Rural counties with a more limited mental health workforce may find video evaluations especially helpful in ensuring expeditious evaluations. Hospitals are encouraged to consult with their local DCRs about the feasibility of video in their area.
- Identifying the appropriate health care professionals to facilitate the use of video for ITA evaluations. The law refers to:
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- A “professional person,” which is defined under RCW 71.05, to include mental health professional (as defined), substance use disorder professional (as defined), or designated crisis responder (as defined), and also means a physician, physician assistant, psychiatric advanced registered nurse practitioner, registered nurse, and such others as may be defined by rules; and
- A “licensed health care professional,” which is not defined in law. According to HCA, this term encompasses the health professions regulated by the Department of Health under Title 18 RCW. In addition to the professions captured by the “professional person” definition, it would also include but not be limited to:
- Licensed mental health counselors
- Counselors
- Health care assistants
- Medical assistants
- Licensed practical nurses (LPN)
- Nursing assistants
- Emergency medical services and trauma care workers
Hospitals may want to consider identifying a list of health care professionals on staff who could facilitate a video ITA evaluation so that it is easier to make prompt arrangements when requested by a DCR.
- HIPAA compliant video. Hospitals should consult with their DCRs about the technology the DCRs intend to rely upon. DCRs are responsible for video evaluations and may have preferred software for purposes of privacy and confidentiality. The laws are silent with respect to privacy obligations and HCA has stated that neither it nor the Centers for Medicare and Medicaid Services consider an ITA evaluation a medical encounter and that an interview by video is not considered telehealth. Hospitals are nonetheless encouraged to take precautions to protect patient’s privacy as though it was.
- The patient’s presentation may not permit video evaluation. Video may not be appropriate for some patients, including but not limited to:
-
- Patients with limited English proficiency and who require interpreter services;
- Patients with communication disabilities, such as being deaf, blind, deaf-blind or hard of hearing; and
- Patients who present with and have symptoms that are specifically related to technology, causing them fear and discomfort beyond any distress due to being in a crisis situation.
Part of determining whether to proceed with a video evaluation will necessarily involve consideration of the person’s particular circumstances. Even if the above considerations allow for video, hospital staff will want to weigh individual presentation against the need to facilitate remote evaluation.
- DCRs remain responsible for the legal process. The DCR conducting the evaluation remains responsible for ensuring that the patient’s due process rights are respected and that the requirements under the ITA for detaining someone are satisfied. Hospital staff present with the patient should expect direction from the DCR about how to fulfil obligations like notifying a person of their rights in the situation and serving and filing detention paperwork.
WSHA’s 2020 New Law Implementation Guide
Please visit WSHA’s 2020 implementation guide online, where you will find a list of the high priority laws that WSHA is preparing resources and information on 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.
Background and References
ESHB 2099
2E2SSB 5720
Guidance on the Use of Video during COVID-19 (HCA – March 28, 2020)
Civil Commitment Proceedings during COVID-19 – Washington State Supreme Court Order
