To: Hospital CEOs/Administrators, Chief Nursing Officers, Legal Counsel, Government Affairs, Public Relations staff
Please forward to: Risk Managers, Emergency Department Staff, and Psychiatric Unit Managers
From: Taya Briley, General Counsel and Chelene Whiteaker, Policy Director
Staff Contact: Chelene Whiteaker, Policy Director, chelenew@wsha.org, 206-216-2545
Subject: SINGLE BED CERTIFICATION: NEW EMERGENCY RULE EFFECTIVE DECEMBER 26 AND PRACTICAL GUIDANCE FOR HOSPITALS
Purpose
The purpose of this bulletin is to:
- Inform hospitals that the Washington State Supreme Court’s decision, In re the Detention of DW, regarding psychiatric boarding and the use of single bed certifications will become fully effective on Friday, December 26, 2014. The court’s stay of the issuance of its mandate in the case expires on December 26.
- Inform hospitals about the Washington State 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.
- Provide information to help hospitals manage in circumstances where a designated mental health professional finds a patient meets detention criteria under the Involuntary Treatment Act, but declines to detain a patient due to no available appropriate inpatient psychiatric bed. (CLICK HERE for Considerations in Managing Psychiatric Boarding Patients Post In re the Detention of DW.)
Applicability/Scope
This new emergency rule creates a heightened minimum standard for hospitals to accept a single bed certification. Not all hospitals may be able to meet this new standard. The new rule will likely affect:
- Hospitals with an emergency department
- Hospitals that are treating a patient who meets detention criteria under the involuntary treatment act for a psychiatric condition, but also has a medical condition that prevents the transfer of the patient to a certified evaluation and treatment facility
- Hospitals with a psychiatric unit
- Hospitals that can provide psychiatric services on an inpatient basis
- Psychiatric hospitals
- Residential treatment facilities
Background
On Friday, December 12, DSHS issued an emergency rule modifying the regulatory requirements for single bed certification. The emergency rule is effective on December 26 when the Supreme Court’s ruling in the case of In re the Detention of DW becomes fully effective. The In re the Detention of DW decision, prohibits the use of single bed certifications for the purpose of boarding patients in hospitals without appropriate evaluation and treatment.
This rule takes the place of previous emergency rules on this matter issued by DSHS. WSHA spent significant time negotiating with DSHS and other stakeholder groups on this new rule and believes the rule represents an attempt to balance the requirements of the Supreme Court ruling and the practical realities of caring for patients using limited resources.
Recommendation
WSHA recommends a thorough review of the new rule with your appropriate clinical teams, hospital risk managers and legal counsel. Hospitals should have an administrative process in place when a designated mental health professional asks your clinical staff about issuing a single bed certification. This process should:
- Take into consideration all the facts and circumstances of the individual for whom a certification is sought;
- Address the requirements of the new DSHS rule for a hospital accepting a single bed certification, including whether a hospital can provide timely and appropriate mental health treatment as required by the new rule and the Supreme Court’s In re the Detention of DW decision;
- Address the legal requirements of hospitals for patients who come to the emergency department under the Emergency Medical Treatment and Active Labor Act (EMTALA) – [Considerations document]; and
- Provide a process for decision-making that, when necessary, can quickly move from the clinician and department level to an administrator on call, and incorporates risk management and legal counsel when needed.
IF your hospital declines a single bed certification and no other bed is found to be available, the designated mental health professional may decline to detain the patient. In such a situation, the hospital should consult legal counsel and evaluate the other considerations, including its obligations under the Emergency Treatment and Active Labor Act. [See Considerations document.]
In some counties, we do not believe designated mental health professionals will continue to look to place patients in certified evaluation and treatment facilities when the hospital declines a single bed certification. We urge hospital staff to talk with their Regional Support Networks and local crisis management services about the process for their area.
Note: The effect of this rule may differ in its application for patients with medical conditions. The Supreme Court ruling and new rule allow issuance of single bed certifications in certain situations where a patient has medical needs. We encourage hospitals to think about a variety of scenarios that could play out in hospital emergency departments.
Effect on hospitals
WSHA is 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 recognize that the new rule creates concerns for hospitals.
Hospital Must be Willing and Able to Provide Timely and Appropriate Mental Health Treatment
If a hospital is asked to accept a single bed certification under WAC 388-865-0526(2)(b)(iv), for reasons other than medical condition, continuity of care, or residential treatment purposes, the following applies:
- Importantly, 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.
- Nothing in this new rule requires a hospital to provide psychiatric treatment to patients who meet involuntary detention criteria or accept a single bed certification. However, DSHS’ interpretation of the Supreme Court decision and its new rule requires that a designated mental health professional have a certified evaluation and treatment bed or a single bed certification available for the patient prior to detaining the patient. Section (1) in the single bed certification rule states, “The [single bed certification] request must be submitted and approved prior to the commencement of the detention.”
- 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 and able to provide directly, or by direct arrangement with other public or private agencies, timely and appropriate mental health 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 unable to provide the treatment to psychiatric patients necessary for a single bed certification to be issued. This could be the case for a variety of reasons, including limited or no psychiatric services and bed availability.
Accepting a Single Bed Certification Means the Hospital Must Be Able to Provide Timely and Appropriate Mental Health Treatment As Defined in New Rule
For the first time in WAC, the new rule defines what “timely and appropriate mental health treatment” means when accepting a single bed certification for a patient. WAC 246-865-0526(3) states:
“In order to provide timely and appropriate mental health treatment, the facility receiving the single bed certification, or the public or private agency the facility has a direct arrangement with to provide mental health treatment, must:
(a) Implement standards for administration that include written procedures to assure that a mental health professional, as defined in RCW 71.05.020 or WAC 388-865-0150, and licensed physicians are available for consultation and communication with both the consumer and the direct patient care staff;
(b) Use plan of care/treatment. The medical or clinical record must contain documentation of:
(i) An individualized mental health treatment plan that was developed, when possible, collaboratively with the consumer. If the consumer is unwilling or unable to participate in development of this plan, documentation shall be made in the record. Development of the plan may include participation of a multidisciplinary team, a mental health professional, as defined in RCW 71.05.020 or WAC 388-865-0150, or collaboration with members of the consumer’s support system as identified by the consumer.
(ii) A mental health professional, as defined in RCW 71.05.020 or WAC 388-865-0150, will have contact with each involuntarily detained consumer at least daily for the purpose of:
(A) Observation and evaluation; and
(B) Release from involuntary commitment to accept treatment on a voluntary basis.
(c) Have standards for administration and monitoring of medication, including psychiatric medications. Consumers have a right to make an informed decision regarding the use of antipsychotic medication consistent with RCW 71.05.215.”
Single Bed Certification Applicability to Individual Patients
Consistent with the Supreme Court’s ruling in the case of In re the Detention of DW, the rule recognizes the need for the 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(2). 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. The rule is a positive step as it acknowledges a distinction between an appropriate single bed certification and a patient who is boarding without appropriate resources.
Other Circumstances where a Single Bed Certification May be Issued
The rule specifically requires that a single bed certification request describe why a consumer meets at least one of a few possible criteria for a certification.
In addition to the criteria provided at WAC 388-865-0526(2)(b)(iv) discussed above, the most pertinent criteria for hospitals are:
- A medical co-morbidity exists. This is a continuation of current law and was specifically called out as an appropriate basis for issuance of a single bed certification in the In re the Detention of DW case. See WAC 388-865-0526(2)(b)(i). Single bed certifications may be issued if, “the consumer requires medical services that are not available at facility certified under this chapter [a certified evaluation and treatment facility], or a state psychiatric hospital,”
- Where the certification is necessary for continuity of care purposes. See WAC 388-865-0526(2)(b)(ii). 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…” It is important to note that for the sections of the rule dealing with medical co-morbidities and continuity of care, the rule does not impose a requirement that the facility be able to provide timely and appropriate mental health treatment.
Transferring of Patients on a Single Bed Certification
To assist in the transferring of patients on single bed certifications to evaluation and treatment facilities when appropriate, WAC 388-865-0526(5) states:
- “A consumer who receives services under a single bed certification under this section must be transferred to an evaluation and treatment facility if on a seventy-two hour detention or fourteen-day commitment or to a state hospital if on a ninety- or one hundred eighty- day inpatient commitment as soon as the attending physician considers the consumer medically stable and a bed becomes available, unless the treating facility consents to continue treatment and continued treatment in the current setting is consistent with the best clinical interests of the consumer.”
Next Steps:
Permanent Rule Making. In January, DSHS will work through its process to make this emergency rule a permanent rule. During the rule making process, there will be additional opportunity to provide input to DSHS. WSHA will be involved and would welcome feedback on how the emergency rule is playing out for hospitals.
Web Casts. WSHA is holding two web casts on this topic on Tuesday, December 16 and Wednesday, December 17. Both web casts contain the same content information. For more information on how to participate, CLICK HERE. A recording of the web cast will also be available on the WSHA website.
WSHA will also hold a conference call for member in early January to hear how the rule is playing out on the ground for patients, providers and hospitals.
Background and References
On September 5, 2014 the Washington State Supreme Court granted a stay of its decision declaring psychiatric boarding unconstitutional. WSHA supported the stay to allow more evaluation and treatment beds to come online before the decision was in effect. The stay expires on December 26, 2014.
