Report of the Legal Workgroup: Continuity of Care Advisory Panel

1. Report of the Legal Workgroup: Continuity of Care Advisory Panel Workgroup Members: Margaret Garrett (Co-Chair), Randall Nero (Co-Chair), Evelyn Burton, Laura Cain, Ed Kelley, Dan Martin, Sarah Rhine, Nevett Steele, Denise Sulzbach, Stacy Reid-Swain, Crista Taylor Active Participants: Janet Edelman, Mike Finkle, Scott Rose, Susan Kneller, Dan Malone, Kathleen Ellis October 4, 2013

2. Agenda • Introduction and Workgroup Charge • Legal Barriers: Issues Raised and Issues to Address • Housing • Forced Medication • Confidentiality • Advance Directives • Guardianship • Inpatient and Outpatient Involuntary Commitment • Discharge Planning and Accountability from Providers • Comments from Workgroup Members and the Public

3. Legal Workgroup Charge • To support the work of the broader Advisory Panel by examining studies, data, and reports related to legal barriers to care for the SMI population • To provide recommendations to the Advisory Panel on ways to better address legal barriers to care, prevent interruptions in treatment, and improve health outcomes

4. Housing • Overarching Issue: SMI population should have access to housing so that continuity of care is not disrupted • Issues Raised: • Cannot prevent discharge from hospital if there is no housing available • If patient has capacity and wants to leave, hospital has to discharge • Various housing options available to SMI population: • Housing First • Public Housing/Section 8 • RRP/Provider Supported Housing • HUD Housing • Private Rental Housing • Assisted Living • Project Home • Homeless Shelters

5. Housing • Recommendations (consensus reached): • Expand Housing First statewide • Without reducing funding elsewhere • Update vulnerability index for Housing First applicants to better capture SMI population • Those on waiting lists not be required to continually update application • Standardize admission and termination procedures statewide for public housing and section 8 • Support legislation preventing landlords from discriminating based on sources of income (SSI, Sect. 8, etc.)

6. Housing • Issues to Address (no consensus reached): • Standardize and mandate a process for admission and termination procedures for RRP housing • Convene a smaller workgroup to examine housing issues • Consider not tying housing to level of care/other services • Change regulations for assisted living to separate the needs for people with a mental illness living in assisted living from the needs of the elderly and the disabled • Standardize admission and termination procedures for emergency shelters • Establish “wet” shelters • Concerns regarding impact on small nonprofit shelters

7. Forced Medication • Overarching Issue: The Kelly decision and redefining ‘dangerousness’ • MD Health-General Code Ann. § 10-708(g): • “The panel may approve [forced medication] if the panel determines that [w]ithout the medication, the individual is at substantial risk of continued hospitalization because of: • (1) Remaining seriously mentally ill with no significant relief of the mental illness symptoms that cause the individual to be a danger to the individual or to others; • (2) Remaining seriously mentally ill for a significantly longer period of time with mental illness symptoms that cause the individual to to be a danger to the individual or others” (emphasis added).

8. Forced Medication • Dep’t of Health & Mental Hygiene v. Kelly, 918 A.2d. 470 (Md. 2007): • The Kelly decision defined “danger to the individual or to others,” as that phrase is used in § 10-708(g)(1) and (2), to mean “danger to the individual or to others in the context of his confinement within the institution” (emphasis added). • Issues Raised: • Clinical Review Panel (CRP) process does serve as a check, and the CRP’s decision can be appealed • Concern that CRP is only a check in terms of clinical appropriateness of prescribed medication and is not a legal proceeding

9. Forced Medication • Issues Raised (cont.): • At administrative hearings patients without financial resources are hampered by inability to present a physician expert and thus the decision usually comes down to ‘danger to others’ standard • Allows for the treatment of SMI patients who lack insight into their condition • If SMI patients are properly treated, they can be released earlier • Concern that there is no data for this, and state interest will not override right to bodily integrity • Concern that lack of insight is not a legal standard – it is lack of capacity and/or dangerousness

10. Forced Medication • Issues Raised (cont.): • Requiring a showing of ‘dangerousness’ within the institution can lead to unnecessarily long and potentially indefinite confinement of patients who are not dangerous within the confines of an institution • Institutional providers are unable to forcibly treat non-dangerous patients with severe mental illness even if treatment is in the patient’s best interest

11. Forced Medication • Issues to Address (no consensus reached): • Need to redefine ‘dangerousness’ standard • Patients are being involuntarily committed because they are dangerous in the community, but may not be considered dangerous once committed for forced medication purposes unless the patient commits dangerous acts in the future • ‘Dangerousness’ needs to be defined more broadly, not just focusing on the patient’s dangerousness in a hospital setting • Patients are automatically re-paneled when facts change overtime

12. Confidentiality • Overarching Issue: Balancing the need to protect PHI while ensuring such information is able to be shared with appropriate providers • HIPAA and Other Federal Statutes • MD Health-General Code Ann. § 4-307(c): • “When a medical record developed in connection with the provision of mental health services is disclosed without the authorization of a person in interest, only the information in the record relevant to the purpose of disclosure is sought may be released.”

13. Confidentiality • MD Health-General Code Ann. § 4-307(j)(1): • “A health care provider may disclose a medical record without the authorization of a person in interest: • (i) To the medical or mental health director of a juvenile or adult detention or correctional facility if: • 1) The recipient has been involuntarily committed under State law or a court order to the detention or correctional facility requesting the medical record; and • 2) After review of the medical record, the health care provider who is the custodian of the record is satisfied that disclosure is necessary for the proper care and treatment of the recipient.”

14. Confidentiality • MD Health-General Code Ann. § 4-307(k)(1): • “A health care provider shall disclose a medical record without the authorization of a person in interestto the medical or mental health director of a juvenile or adult detention or correctional facility or to another inpatient provider of mental health services in connection with the transfer of a recipient from an inpatient provider, if: (i) • 1) The health care provider with the records has determined that disclosure is necessary for the continuing provision of mental health services; and • 2) The recipient is transferred: • A) As an involuntary commitment or by court order to the provider • B) Under State law to a juvenile or adult detention or correctional facility; or • C) To a provider that is required by law or regulation to admit the recipient”

15. Confidentiality • Issues Raised: • Current federal and state statutes have addressed issues concerning the PHI of SMI patients • Mental health records are treated more securely than general medical records • MD does have a statewide health information exchange (CRISP) that allows medical records to be queried

16. Confidentiality • Issues Raised (cont.): • Not having access to mental health records prevents providers from effectively treating SMI patients in both the inpatient and outpatient setting • Most significant barrier to ensuring continuity of care for SMI patients as they move through health care system • Mental health records are not able to be queried by CRISP • Can only pull the entire medical record, not specific sections • Hospitals are the only participants

17. Confidentiality • Issues to Address (no consensus reached): • Need to clarify what ‘minimum necessary’ means in § 4-307(c) • “[O]nly the information in the record relevant to the purpose for which disclosure is sought may be released.” • Promote pilots to expand CRISP to include mental health providers • Have DHMH draft memo on whether CRISP can query specific information in a medical record • Allow correctional and juvenile facilities to participate in CRISP

18. Confidentiality • Issues to Address (cont.): • Have DHMH update document comparing federal privacy statutes and regulations with MD privacy statutes and regulations • Has not been updated since 2003 • Include section devoted to mental health records • Have DHMH clarify when providers can release information without consent in order to facilitate care transitions • Provide specific examples of when and what information can be released

19. Advance Directives • Overarching Issue: The Role ofAdvance Directives • MD Health-General Code Ann. § 5-602.1 • “An individual who is competent may make an advance directive to outline the mental health services which may be provided to the individual if the individual becomes incompetent and has a need for mental health services either during, or as a result of, the incompetency.”

20. Advance Directives • MD Health-General Code Ann. § 5-604 • “An advance directive may be revoked at any time by a declarant by a signed and dated written or electronic document, by physical cancellation or destruction, by an oral statement to a health care practitioner or by the execution of a subsequent directive.” • Issues Raised: • Allow individuals to establish desired end-of-life care decisions ahead of time • It can be rescinded by the patient at any time regardless of competency and guardianship • Concerns about purpose and effectiveness when a patient lacks capacity

21. Advance Directives • Recommendations (consensus reached): • Waive the Advance Directive Registry Fee for those who cannot afford it • Provide education on advance directives • Issues to Address (no consensus reached): • Insert Ulysses clause into advanced directives so that if there is an advance directive, it cannot be rescinded until patient has capacity • Have a person with capacity choose for it to be non-revocable, which becomes legally binding • Concern about coercion

22. Advance Directives • Issues to Address (cont.): • Create a delay in terms of revoking an advance directive so that revocation does not take effect until 72 hours after revocation • Amend Maryland Health-General Code Ann. § 10-632 to allow for a determination by an ALJ as to whether or not someone has the capacity to sign voluntarily to be admitted to a facility for psychiatric treatment so that individuals under guardianship who are competent do not lose their civil rights

23. Guardianship • Overarching Issue: Balancing individual liberty with care decisions • Issue: Processes available for establishing guardianship • Issues Raised: • Involuntary commitment procedures protect due process rights • A hospital cannot hold a non-psychiatric patient who lacks capacity in order to establish a guardian without committing them • Establishing guardianship can be a burdensome and expensive process, particularly for families

24. Guardianship • Issues Raised (cont.): • Even with guardian, involuntary commitment can be a burdensome process • Guardians cannot voluntarily admit someone without a hearing • Although the guardianship statute directs that courts shall appoint a guardian if the criteria are met (see § 13-705(b)), a court may still not appoint a guardian if the guardian is unable to meet the needs of the individual or have the authority to compel treatment • See Johns Hopkins Bayview Medical Center v. Carr where despite finding an individual incompetent, guardianship was not appointed based on the individual’s objection to guardianship and anticipated lack of cooperation.

25. Guardianship • Recommendations (consensus reached): • Provide education on what guardianship covers • Guardian’s ability to consent to psychotropic medications and ECT • Some states allow guardians to admit people to the hospital, some do not • Clarification by legal aid about guardianship process to support and educate families • Address issues that include: prohibitive costs and time delay • Families need more support and education to go through the process

26. Guardianship • Issues to Address (no consensus reached): • If guardianship has been filed (from time of second certification) the institution can retain an individual for three business days (or until next day courts are in session) and courts can consider an expedited emergency process • Potential concerns regarding discrimination if targeted at individuals with suspected mental illness • Allow a guardian to voluntarily admit someone with two physician certifications

27. Inpatient Involuntary Commitment • Overarching Issues: Individual freedom, competency, safety • Issue:Involuntary Commitment Standards • Issues Raised: • Dangerousness Requirement:Whether the individual presents a danger to the life or safety of the individual or of others. MD Health-General Code Ann. § 10-632(e). • Some misinterpret dangerousness requirement to mean imminent danger • Is an individual with guardianship able to voluntarily admit • Lack of a gravely disabled component in Maryland • Need a more accountable system that meets needs • System will not provide access to a patient with mental illness unless they meet dangerousness standard

28. Inpatient Involuntary Commitment • Issues to Address (no consensus reached): • Add a gravely disabled component to mental illness definition • Some believe use of clinical criteria would result in selection of a more appropriate population and allow for earlier intervention • Concern that this it isn’t necessary to differentiate broader danger from imminent risk of violence because Maryland’s dangerous standard does not require an imminent risk or threat of serious bodily injury to self or others and thus includes less serious and/or immediate harms • The current “dangerous” standard is interpreted by ALJs as including non-violent behavior that presents a danger to the person’s health and well-being • Concern that defining the boundaries of “danger” eliminates the ability of clinical evaluators to use their experience and expertise

29. Inpatient Involuntary Commitment • Issues to Address (cont.): • Develop and implement training program for emergency department • Should include follow-up to test competency and procedures to address problems identified

30. Outpatient Involuntary Commitment • Issue:Court ordered outpatient treatment is currently not an option in Maryland • Issues Raised: • Can be effective in providing care to persons with mental illness who refuse treatment or don’t realize they are ill • Contribute identifying persons at risk of violence against self and others and preventing that violence • Encourage people to enter treatment willingly, help to better manage their illness • Can help prevent episodes of deterioration and related negative outcomes • Less restrictive alternative to inpatient commitment • Reduce inpatient stay, potentially save dollars, relieve strain on families and caretakers

31. Outpatient Involuntary Commitment • Issues Raised (cont.): • Potential civil liberties issues • Could unfairly target persons or groups (i.e. African Americans) with mental illnesses, creates stigma • May wrongly assess individuals as being at imminent risk of danger toward others • Could drive people away from treatment • Draw resources away from other issues such as lack of access to care • There is a general lack of data (which is mixed) on the effectiveness of outpatient involuntary commitment

32. Outpatient Involuntary Commitment • Issues raised (cont.): • Some research shows that persons with a mental illness, alone, pose no statistically greater risk of violence than the general public • Studies do not conclusively show that a court-order is necessary to achieve the reported positive results of a well-funded IOC system • Maryland does not currently have the robust and coordinated voluntary services array that all agree are needed – involuntary commitment may not be answer • Without significant increases in funding (that is sustained long-term), IOC diverts resources from those who want and use services • Studies on IOC leave out the consumer voice, raising serious questions about claims of effectiveness, certainly in terms of long-term engagement

33. Discharge Planning & Accountability from Providers • Issue: Contacting family when discharging a patient if the family is part of the continuing care • Issues Raised: • Ensuring families can be involved in discharge and continuity of care • TJC/CMS COP requirement already supports this • Family may not want to be involved; patient may not want family involved • May be more of a clinical practice issue rather than legislative; currently not required by statute (unless consent is obtained; see COMAR § 10-809(a)).

34. Discharge Planning & Accountability from Providers • Issues to Address (no consensus reached): • Require a time notification (i.e. at least 24 hours before discharge) • Notify the family if there is a history of violence against the family • Need to take into account other side where the patient may have history of being abused, must also consider how to protect individual

35. Discharge Planning & Accountability from Providers • Issue: Provision of housing services • Issues Raised: • Make hospitals more accountable for housing efforts • The aftercare statute doesn’t say there has to be a plan for supportive housing, so this would enforce that need • Social problem vs. legal problem

36. Discharge Planning & Accountability from Providers • Recommendation (consensus reached): • Clarification on when families need to be/can be included in the discharge process (discussion in after-plan, clarification of public agencies on discharge of wards from psychiatric facilities) • Issues to Address (no consensus reached): • Accountability for finding housing services at discharge • Require at least more documentation of what efforts were made to find housing or services – need more oversight of hospitals

37. Discharge Planning & Accountability from Providers • Issues to Address (cont.): • Shouldn’t discharge to homelessness, there needs to be more case management and the hospital should connect to care coordination in pre-discharge plans • Maybe not something that can be effectively addressed legally • Bed-holds or housing guarantees for individuals that have housing and have to be hospitalized • Revolving door problem • Could pose a problem with fee for service environment and private pay facilities

38. Discharge Planning & Accountability from Providers • Issue: Jackson limits for IST cases • Jackson v. Indiana, 406 U.S. 715 (1972): “a[n incompetent] defendant cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain competency in the foreseeable future…. Due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed” • Maryland Statute: “the court shall dismiss the charge against a defendant found incompetent to stand trial: • When charged with a capital offense, after the expiration of 10 years; • When charged with a felony or crime of violence…, after the lesser of the expiration of 5 years or the maximum sentence for the most serious offense charged; or • When charged with an offense not covered under paragraph (1) or (2)… after the lesser of the expiration of 3 years or the maximum sentence…” [MD Code-Annotated, Criminal Procedure §3-107(a)]. 

39. Discharge Planning & Accountability from Providers • Issues Raised: • The limits may be too long; resulting in people occupying beds far longer than necessary because they are held until a judge thinks the treatment plan is adequate. • Cases may be held open for lack of discharge plan • Charges can get folded into each other affecting time requirements • The MD requirements are much longer than other states. • Issues to Address (no consensus reached): • Put limits on treatment (there should be shorter timeframes) • Statutory change to give discretion to courtsto not follow minimum or maximum time frames • Concern that if statute gets opened, judiciary will take control

40. Comments from Workgroup Members and the Public