Statewide Behavioral Health Ombuds Coming in 2022

Change of Law: Hospital Action Required

To:	Freestanding Psychiatric Hospital Chief Executive Officers, Emergency Department Directors, Behavioral Health Directors, WSHA’s Involuntary Treatment Act Technical Advisors, Risk Managers, Legal Counsel, and Government Affairs Staff.
From:	Ryan Robertson, Director, Behavioral Health RyanR@wsha.org, (206) 216-2536
Subject:	Statewide Behavioral Health Ombuds Coming in 2022

 

Purpose
This bulletin provides hospitals with information on an upcoming change to behavioral health ombuds services, with implications for hospitals providing mental health, substance use disorder, and co-occurring disorder-related treatment services (referred to as “behavioral health”).

Under E2SHB 1086, the existing regionally organized behavioral health ombuds offices will be replaced by a State Office of Behavioral Health Consumer Advocacy (the Office) by October 1, 2022. The authorizing law, which went into effect on July 25, 2021, establishes the new Office’s role and responsibilities, as well as those of certified behavioral health consumer advocates (BHCAs). These BHCA’s will have several responsibilities that interact with hospitals, including identifying, investigating, and resolving complaints.

Applicability/Scope
All hospitals that provide behavioral health services to adults and minors may be engaged by the BHCAs under E2SHB 1086 including:

• Hospitals that are “licensed or certified behavioral health agencies,” which include Evaluation and Treatment facilities (E&Ts), such as freestanding psychiatric hospitals and inpatient units in acute care hospitals providing mental health or substance use disorder services, on voluntary and involuntary bases; and
• Hospitals that “receive funds from the state to provide residential or treatment services to adults or children with a behavioral health condition,” which may include involuntary treatment on a single bed certification. The language in the law is not specific to facility type, so WSHA interprets it broadly.

Recommendation 

1. Continue to work with regional ombuds offices. The existing regional ombuds programs remain operational until the statewide office is launched, and they are fully integrated. Hospitals should continue to cooperate and coordinate with these offices, including assisting patients and their family members in contacting their local ombuds offices.
2. Once the State Office of Behavioral Health Consumer Advocacy (the Office) is established:
   1. Review the law to understand its role and the role of its BHCAs. Review this bulletin, E2SHB 1086, and the regulations that will be developed with legal counsel and risk managers to determine the impact on your hospital and any resulting changes that may be required to policies, procedures, and forms (if any). Pay particular attention to BHCAs’ rights of entry and access to patients for purposes of hearings and investigating and resolving complaints, as well as their authority to monitor the quality of services.
   2. Update notice about behavioral health consumer advocacy services. E2SHB 1086 requires signage with contacts and other information about their services to be posted in conspicuous places. Hospitals will need to update their existing signage when it becomes available.
   3. Educate employees. Behavioral health services can be complex, especially when there is a legal overlay, such as around involuntary treatment, family-initiated treatment, or the use of mental health advance directives. Ombuds and advocates can be helpful resources to facilitate understanding, assist with potential miscommunications, and improve therapeutic relationships.

Overview and New Law
An ombuds is a client/patient advocate official, whose role includes investigating and attempting to resolve concerns and complaints arising from the provision of care. Multiple ombuds exist in Washington State, including the Long-Term Care Ombuds, Developmental Disabilities Ombuds, Corrections Ombuds, and the Children and Family Ombuds. These are statewide entities.

However, for behavioral health, there are currently 10 regional behavioral health ombuds across the state, organized through Behavioral Health Administrative Service Organizations (BH-ASOs). BH-ASOs are the entities responsible for providing certain behavioral health services not otherwise covered through the Medicaid managed care system.

Under E2SHB 1086, these regional ombuds will be replaced by the State Office of Behavioral Health Consumer Advocacy (the Office). By July 1, 2022, a private nonprofit organization will be selected to run this Office and to “provide behavioral health consumer advocacy services to patients, residents and clients of behavioral health providers or facilities.” The role of the Office is to “effectively protect the interests of persons with behavioral health needs” in accordance with the law.

The role of the Statewide Office of Behavioral Health Consumer Advocacy (the Office). The law contemplates the Office establishing systems and processes to provide advocacy services, including:

• Certifying BHCAs and coordinating their activities statewide by October 1, 2022. BHCAs will be required to have training or experience in behavioral health, the legal system, advocacy, dispute resolution and all applicable patient rights;
• Training the BHCAs on appropriate access to behavioral health providers and facilities according to adopted standards; and
• Establishing a statewide reporting system to “collect and analyze data relating to complaints and conditions provided by behavioral health providers or facilities for purposes of identifying and resolving significant problems.”

The law contemplates information sharing between the Office, BHCAs, and state agencies such as the Washington State Department of Health (DOH) and Health Care Authority (HCA). It also contemplates the Office to monitor the development of and recommend improvements of the implementation of applicable laws and regulations with respect to the provision of behavioral health services.

The role of certified Behavioral Health Consumer Advocates (BHCAs). The law authorizes BHCAs to:

• Identify, investigate, and resolve complaints made by, or on behalf of, patients, residents, and clients of behavioral health providers or facilities relating to administrative action, inaction, or decisions that may adversely affect the health, safety, welfare, and rights of these individuals;
• Assist and advocate on behalf of patients, residents, and clients of behavioral health providers or facilities before government agencies and seek administrative, legal, and other remedies on their behalf;
• Inform patients, residents, and clients or their representatives about applicable patient and resident rights, and provide information to patients, residents, clients, family members, guardians, resident representatives, and others regarding the rights of patients and residents;
• Make recommendations through the Office for improvements to the quality of services provided to patients, residents, and clients of behavioral health providers or facilities; and
• Involve family members, friends, or other designated individuals in the process of resolving complaints (with the consent of the person receiving care).

New regulations related to ombuds services coming soon. The law contemplates two sets of regulations being created, which WSHA will engage on. First, the future Office will adopt regulations establishing standards to:

• Certify the BHCAs who may enter behavioral health facilities;
• Determine appropriate access to behavioral health providers and facilities by the BHCAs; and
• Protect the confidentiality of the records of patients, residents, clients, providers, and complainants.

In addition, state agencies that regulate or contract with behavioral health providers or facilities (i.e., DOH and HCA) must adopt rules related to facilities and providers working in coordination with the Office.

WSHA’s advocacy on E2SHB 1086. WSHA worked to ensure E2SHB 1086 aligned with the existing statewide ombuds offices and adequately differentiated between the role of the Office and state agencies’ roles regulating behavioral health facilities such as hospitals. For instance, thanks to WSHA’s advocacy, E2SHB 1086 specifies that advocates do not have statutory or regulatory licensing or sanctioning authority or binding adjudicative authority.

In addition, WSHA was pleased to see language included that emphasized the Office’s role as an advocate by requiring it to develop and deliver educational programs and information statewide to patients, clients, residents, and their families on topics including the execution of mental health advance directives, wellness recovery actions plans, crisis services and contacts, peer services and supports, family advocacy, and rights and involuntary treatment.

References
E2SHB 1086
Information about existing ombuds services (HCA)
Contact information for 10 regional behavioral health ombuds

WSHA’s 2021 New Law Implementation Guide
Please visit WSHA’s new law implementation guide online. The Government Affairs team is hard at work preparing resources and information on the high priority bills that passed in 2021 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.