New Emergency Rule for Less Restrictive Alternative Order Revocations

Purpose

The purpose of this bulletin is to inform hospitals of the new emergency rule for single bed certification, Washington Administrative Code (WAC) 388-865-0526, filed by the Washington State Department of Social and Health Services (DSHS) on February 8, 2018. This emergency rule is currently in effect and impacts single bed certifications for patients who have a less restrictive alternative order (LRA) or conditional release revocation.

Applicability/Scope

This new emergency rule permits issuance of single bed certifications for patients whose LRA or conditional release has been revoked. The emergency rule will likely impact:

Hospitals with an emergency department;
Hospitals with a psychiatric unit;
Hospitals that can provide psychiatric services on an inpatient basis;
Hospitals that treat patients who meet detention criteria under the Involuntary Treatment Act (ITA); and
Psychiatric hospitals licensed under RCW 71.12.

Background

On February 8, DSHS issued a new emergency rule modifying the regulatory requirements for a single bed certification because some courts were not recognizing single bed certifications for patients who have an LRA or conditional release revoked. The emergency rule amends WAC 388-865-0526 to clarify that a patient with an LRA or conditional release revocation may receive timely and appropriate mental health treatment under a single bed certification in a facility that is not certified as an Evaluation and Treatment (“E&T”) facility under WAC 388-865-0500.

Recommendations

WSHA recommends a thorough review of the new emergency rule with the appropriate hospital clinical teams, risk managers, and legal counsel. Hospitals should have an administrative process in place when a designated mental health professional asks clinical staff about accepting a single bed certification.

It is important to note that this new emergency rule does not limit or supersede any existing legal and regulatory requirements for single bed certification under RCW 71.05.745 and WAC 388-865-0526.

Overview

DSHS seeks to provide clearer means for patients who have an LRA or conditional release revocation to be granted an exception to allow timely and appropriate treatment under a single bed certification. Current language under WAC 388-865-0526 states that DSHS may issue a single bed certification for an individual “on a 72-hour detention or 14-day commitment.” This language has been interpreted by some courts as limiting the types of individual patients for which a single bed certification may be granted.

The emergency rule addresses this ambiguity under WAC 388-865-0526 to make clear that a single bed certification may be granted for:

Individual patients on “a five-day detention pending a revocation proceeding” pursuant to RCW 71.05.590(4)(b), and
Individual patients “who [have] been revoked from a less restrictive alternative order or conditional release” pursuant to RCW 71.05.590(4)(d).

Note that nothing in this new rule mandates a hospital to accept a single bed certification for patient with an LRA or conditional release revocation. The facility must be willing and able to provide the individual with timely and appropriate treatment either directly or by agreement with other public or private agencies. See RCW 71.05.745(1).

Next Steps

DSHS has initiated the regular rule making process to make this emergency rule permanent. WSHA supports DSHS’ initiative to amend existing WAC language for single bed certification to clarify the law and remove barriers to treatment for patients who have an LRA or conditional release revocation.

Background and References

Emergency Rule