By: Patrice Gillotti, Staff Attorney Arizona Center for Disability Law Southern Arizona Disability Rights and Resources

1. PUBLIC MENTAL HEALTH SERVICES IN ARIZONA: CONSUMERS’ RIGHTS By: Patrice Gillotti, Staff Attorney Arizona Center for Disability LawSouthern Arizona Disability Rights and Resources ConferenceApril 4, 2009

2. GOALS OF TRAINING • To provide an overview of the public behavioral health system in Arizona. • To provide information on a consumer’s civil rights, the right to services, and the development of the individual service plan or inpatient treatment and discharge plan. • To provide information on the formal processes to resolve problems for consumers of mental health services. • To provide information about notice and due process requirements when services are denied, suspended, discontinued, or changed.

3. THE PUBLIC MENTAL HEALTH CARE SYSTEM IN ARIZONA • The Arizona Department of Health Services/ Division of Behavioral Health Services (ADHS/DBHS), primarily through a contract with the Arizona Health Care Cost Containment System (AHCCCS), is responsible for implementing the State’s public mental health care system. ADHS/DBHS contracts with Regional Behavioral Health Authorities (RBHAs) to provide behavioral health services. The RBHAs contract with individual provider entities to provide direct services.

4. THE PUBLIC MENTAL HEALTH CARE SYSTEM IN ARIZONA • ADHS/DBHS also has intergovernmental agreements (IGAs) with several Arizona Indian Tribes - Gila River Regional Behavioral Health Authority, Navajo Nation, Pascua Yaqui Tribe, the White Mountain Apache Regional Health Authority, and the Colorado River Indian Tribe - to provide covered behavioral health services to persons living on the reservations. Other Native American tribes are covered by the RBHA in the county where located.

5. ARIZONA RBHAs • State divided into 6 geographical service areas (GSAs); 4 RBHAs provide services within specific GSAs • Magellan Health Services - Maricopa (GSA 6) • Community Partnership of Southern Arizona (CPSA) - Pima, Cochise, Greenlee, Graham, & Santa Cruz counties (GSAs 3 & 5) • Cenpatico - Pinal, Gila, La Paz, & Yuma counties (GSAs 2 & 4) • Northern Arizona Regional Behavioral Health Authority (NARBHA) - Apache, Coconino, Mohave, Navajo, & Yavapai counties (GSA 1)

6. Partial Exception to the RBHA System: The Arizona Long Term Care System (ALTCS) Serves 2 populations: - Elderly and Physically Disabled (EPD) - Developmentally Disabled (DD) EPD/ALTCS members get behavioral health and acute care services from the ALTCS health plan DDD/ALTCS members get behavioral health services from the RBHA system

7. RBHA PROGRAMS • SMI (serious mental illness) SYSTEM • CHILDREN’S SYSTEM • GENERAL MENTAL HEALTH • SUBSTANCE ABUSE SYSTEM

8. THE SMI SYSTEM • Applies only to persons over 18 • State of Arizona required to provide community mental health services under A.R.S. §§ 36-550.01(A) & 36-3403(B) • Arnold v. Sarn, 160 Ariz. 593 (1989), a class action lawsuit alleging state failure to provide mental health services; enforced State statute for persons with SMI in Maricopa county • SMI regulations are result of lawsuit and apply statewide (A.A.C. R9-21-101 to 513) • Medicaid/AHCCCS money can be used to provide mental health services for those enrolled in SMI system

9. SMI System Eligibility • Depends on disability NOT income • To be eligible for SMI mental health services, must have an appropriate mental health diagnosis and functional limitations related to that diagnosis • Statute: A.R.S. §§36-550(4) and 36-501(22) • Regulations: A.A.C. R9-21-302 to 305

10. Medicaid and SMI Covered Behavioral Health Services

11. Case management Psychotropic medication & monitoring Outpatient Therapy/Counseling Behavioral Management Psychosocial rehabilitation (living skills, health promotion, job coaching and employment support) Respite Transportation Crisis Stabilization In-patient treatment Day treatment Residential Services In patient psychiatric facility Respite Therapeutic foster care SMI and Title 19 (Medicaid)Behavioral Health Services

12. SMI Only Mental Health Services • Housing Assistance • Flex Funds (also available for children under 21 enrolled with a RHBA & eligible for AHCCCS); are discretionary and may, if approved by DBHS, be limited to cover certain expenses (back rent to avoid eviction; utility bills to avoid shutoff; for items specifically identified in the individual service plan (ISP) and amount may be less than maximum permitted by DBHS • Advocacy from Office of Human Rights

13. Non-Title 19 & Non-SMI Services Services available depending on state funds: • Emergency Services • Individual therapy • Group therapy • Family therapy

14. Children’s Behavioral Health System • JK v. Eden (settlement March 20, 2001) • Class action lawsuit under EPSDT (Early Periodic Screening, Diagnosis, & Treatment) provisions of Medicaid (Title 19) that challenged state’s failure to provide adequate mental health services to children under 21 • Statewide Class: children under 21 eligible for AHCCCS • Entire stipulation extended to 2010 • Vision and 12 Principles • Delivery Method: Child & Family Team Process • ACDL’s Title 19 Appeal Guide

15. EPSDT Services • Early Periodic Screening, Diagnosis, & Treatment (EPSDT); 42 U.S.C. §1396d(r) • Mandatory service for children and youth under 21 • Established by Congress in 1967 with intent to be the “nation’s largest preventative health program for children;” amended in 1989 to broaden scope of services

16. EPSDT Services (cont’d) • Intended to be a comprehensive package of screening, diagnostic, and treatment services • All necessary health care to “correct or ameliorate” physical or mental problems or conditions • Covers all medically necessary services, even if service is not in the state plan and/or is not provided to adults under the State Medicaid plan

17. CIVIL RIGHTS

18. CIVIL RIGHTS • A.A.C. R9-21-201 to R9-21-209 set out the legal and civil rights of clients, including: • all civil rights within A.R.S. § 36-506, including the right to acquire and dispose of property, sue and be sued, vote, enter into contractual relationships, and the right to hold professional, occupational, or vehicle operator’s licenses; • the right to be free from unlawful discrimination by ADHS/DBHS or any mental health provider based on sex, race, age, sexual preference, or physical or mental handicap;

19. CIVIL RIGHTS, cont’d • equal access to all existing behavioral health, community, and generic services provided by or through the State of Arizona; • religious freedom and practice according to consumer’s preferences; • to privacy, including the right to not be fingerprinted or photographed (except when admitted to a mental health facility for identification purpose) • to be informed, in appropriate language and terms, of all rights;

20. CIVIL RIGHTS, cont’d • to communicate, which includes the right to reasonable access to a telephone, the right to make and receive confidential calls, and to receive assistance as desired and necessary to implement this right; • to send and receive uncensored and unopened mail, to be provided with stationery and postage in reasonable amounts, and to receive assistance as desired and necessary to implement this right;

21. CIVIL RIGHTS, cont’d • to be visited by and visit with others and to associate and/or assemble with others, as long as these activities do not cause serious disruptions in the normal functioning of the mental health agency/facility; • to assert grievances, without retaliation, regarding violations of these rights; • to assistance from an attorney, a designated representative, or a human rights office advocate to assert grievance(s);

22. CIVIL RIGHTS, cont’d • to adequate, appropriate, flexible, and humane support and treatment consistent with the consumer’s needs, desires, and choices and which are the least restrictive of the consumer’s freedom; • to receive treatment and services that are culturally sensitive in structure, process, and content; • to receive services on a voluntary basis entirely or to maximum extent possible; • to live in one’s own home;

23. CIVIL RIGHTS, cont’d • to ongoing participation in the planning, development, and revision of services; • to be provided with a reasonable explanation of one’s condition and treatment; • to give informed consent to all behavioral health services, including medication, and to refuse services, including medication, except in emergencies or where ordered by a court (A.R.S. §§ 36-512 and 513 and A.R.S. §§ 36-520 through 544);

24. CIVIL RIGHTS, cont’d • before providing psychotropic medications, services by telemedicine, or electro-convulsive therapy, the mental health agency must obtain written informed consent from the consumer • consumer must be advised of all known risks and side effects of the proposed treatment and must be given information about the diagnosis, the nature of the treatment proposed, the intended outcome, and any alternatives to the proposed treatment

25. CIVIL RIGHTS, cont’d • to enjoy basic goods and services without threat of denial or delay • for residential service providers, these include a nutritionally sound diet, clothing, prompt and adequate medical care, social contact, personal possessions, storage, and opportunities for physical exercise and recreation

26. CIVIL RIGHTS, cont’d • to a continuum of care that includes case management, outreach, housing and residential services, crisis intervention and resolution, mobile crisis teams, vocational training and opportunities, peer support, social and recreational services, advocacy, family support services, medication evaluation and maintenance, outpatient counseling and treatment, and transportation, among others;

27. CIVIL RIGHTS, cont’d • to a continuum of care with programs and services based on individual and/or unique needs and to community services provided in the most normal and least restrictive setting; • to participate in treatment decisions and in developing and implementing the individual service plan (ISP); • to prompt consideration of discharge from an inpatient facility and identification of steps needed to secure discharge.

28. PROTECTION FROM ABUSE & NEGLECT

29. PROTECTION FROM ABUSE, NEGLECT, EXPLOITATION, AND MISTREATMENT • no mental health agency may mistreat a consumer or permit mistreatment by any staff; • includes any intentional, reckless, or negligent act or omission that exposes a client to a serious risk of physical or emotional harm;

30. PROTECTION FROM ABUSE, NEGLECT, EXPLOITATION, AND MISTREATMENT (cont’d) • mistreatment includes abuse, neglect, or exploitation; corporal punishment; unreasonable use or threat of use of force; infliction of mental or oral abuse such as screaming, ridicule, or name calling; incitement or encouragement of others to mistreat a client; transfer or threat of transfer as punishment; restraint or seclusion as a means of coercion, discipline, convenience, or retaliation; any act in retaliation for reporting any violation; and commercial exploitation

31. PROTECTION FROM ABUSE, NEGLECT, EXPLOITATION, AND MISTREATMENT (cont’d) • abuse means the infliction of physical pain or injury, impairment of bodily function, disfigurement, or serious emotional damage which may be shown by severe anxiety, depression, withdrawal, or untoward aggressive behavior • may be caused by either acts or omissions; may occur if incite another to act • includes sexual misconduct, assault, molestation, incest, or prostitution of or with a client

32. PROTECTION FROM ABUSE, NEGLECT, EXPLOITATION, AND MISTREATMENT (cont’d) • neglect means a negligent act or omission by a person responsible for providing services, care, or treatment which caused or may have caused injury or death, includes a failure to establish or carry out an appropriate program plan or treatment, failure to provide adequate nutrition, clothing, or medical care, and the failure to provide a safe environment which includes the failure to maintain adequate numbers of appropriately trained staff

33. PROTECTION FROM ABUSE, NEGLECT, EXPLOITATION, AND MISTREATMENT (cont’d) • exploitation means the illegal use of a consumer’s resources for another individual’s profit or advantage • special sanctions are available for violations, including suspension or revocation of the license of the mental health agency and/or discipline, including dismissal, of any employee

34. RESTRAINT & SECLUSION

35. RESTRAINT AND SECLUSION Mental health agency may only use restraint or seclusion: • to ensure safety of patient or others in an emergency situation; • only after less restrictive methods were tried and failed; • until the emergency ceases and client’s and others’ safety can be ensured, even if restraint or seclusion order has not expired; and • in a manner that prevents physical injury, minimizes physical discomfort and mental distress, and complies with the mental health agency’s policies and procedures.

36. RESTRAINT AND SECLUSION (cont’d) • seclusion or restraint may only be used according to a written order from the physician providing treatment or by an oral order from that physician to a nurse. • where physician not on premises or on call, order may be made by another practitioner depending on type of facility - A.A.C. R9-21-204(G)). • an individual who orders restraint or seclusion must be available for consultation throughout the scheduled period and must order the least restrictive restraint or seclusion necessary to the situation;

37. RESTRAINT AND SECLUSION (cont’d) • restraint includes personal restraint, mechanical restraint, and a drug used as a restraint; • personal restraint means the application of physical force without the use of any device for the purpose of restricting the free movement of a consumer’s body; • for Level 1 facilities, does not include holding a client for no more than 5 minutes without undue force to calm or comfort the client or holding a client’s hand to escort from one area to another;

38. RESTRAINT AND SECLUSION (cont’d) • mechanical restraint means any device, article, or garment attached or adjacent to a consumer’s body such that the consumer cannot easily remove and that restricts the consumer’s freedom of movement; • drug used as a restraint means a pharmacological restraint that is not standard treatment for a consumer’s medical or mental health condition administered to manage behavior for safety of consumer or others and temporarily restricts the consumer’s freedom of movement (see also A.R.S. § 36-513)

39. RESTRAINT AND SECLUSION (cont’d) • orders for mechanical restraint or seclusion must be time-limited and cannot exceed 3 hours; • restraint by drugs must be limited to the dosage necessary to reach desired result and must not include a drug with a time release that exceeds 3 hours; • PRN (medication given as needed) orders may not be used for any form of restraint or seclusion; • all instances of seclusion and restraint must be properly recorded in the patient’s medical record.

40. INDIVIDUAL SERVICE PLANS

41. INDIVIDUAL SERVICE PLAN (ISP) • An Individual Service Plan (ISP) is the written plan for services; it includes goals and addresses ways to reach those goals • Under the SMI rules, all eligible adults must receive an individual assessment and evaluation to identify their needs and wants, including, but not limited to, all behavioral health, medical, housing, educational, social, and cultural needs and wants

42. Presenting concerns Mental health treatment Medical conditions and treatment Sexual behavior and any sexual abuse Any substance abuse Living environment Employment Language & communication capabilities Educational and vocational training Interpersonal, social, & cultural skills Developmental history Criminal justice history Public & private resources Legal status & apparent capability Need for special assistance ASSESSMENT FOR ISP MUST EVALUATE:

43. a risk assessment of client a mental status examination of client a summary, observa-tions, & impressions diagnostic impressions of the qualified clinician recommendations for next steps and other relevant information participation from the client, qualified clinician, client’s case manager, and all members of the client’s clinical team, including a behavioral health professional and technicians, family members, para-professionals, & any other person who is necessary to ensure that the assessment is comprehensive ASSESSMENT FOR ISP MUST INCLUDE:

44. ISP (cont’d) • A qualified clinician must prepare an assessment within 45 days of a request or referral for SMI eligibility • Within 5 days of completing the assessment report, the clinical team and client shall identify the most appropriate service providers • The case manager has the responsibility to contact the identified provider to determine whether that provider can serve the client

45. To determine the most appropriate service provider, must consider: • The client’s preferences for type, location, & intensity of services; • The capacity & experience of the provider to meet the client’s assessed needs; • The proximity of the provider to the client’s family & home community; • The availability & quality of services offered by the provider; and • Other factors deemed relevant by the client & clinical team

46. ISP, cont’d • Within 20 days of completion of the assessment, the case manager must convene an ISP meeting • The ISP must contain long-term goals and identify particular services needed to meet those goals • ISP must state whether the client needs providers who are proficient in any language other than English

47. ISP, cont’d • ISP must include the least restrictive services, consistent with the client’s needs and preferences without regard to the availability of services or resources • Services must maximize the client’s strengths, independence, and integration into the community • Generic services available to the general public may be used if they are accessible and adequate to meet a client’s needs

48. ISP, cont’d • ISP must include target dates for beginning each service and the anticipated duration of each service • ISP must identify the persons or providers responsible for each long-term and short-term objective in the ISP • ISP must identify any need for alternative housing or residential setting and include a plan for support and monitoring of any housing change

49. ISP, cont’d • ISP must describe the methods and persons responsible for ensuring that services are provided as described in the ISP, are adequately coordinated, and are regularly monitored for effectiveness • If the services identified in the ISP are not available, the team must develop an alternate plan • If appropriate services for unmet needs cannot be identified by the clinical team, DBHS retains duty to provide them

50. ISP, cont’d • A client may accept some of the identified services and reject others; • a client’s refusal to accept a service, including case management services, or to refuse a particular mode or course of treatment, cannot bar a client from access to other services • If the client, guardian, or representative does not object to the ISP within 30 days after receiving a completed copy, it is deemed accepted