Change of Law: Hospital Action Required
To: Chief Nursing Officers, Legal Counsel, Government Affairs Staff (Please share with ED managers, social workers, and other staff involved in adolescent behavioral health, as appropriate)
From: Jaclyn Greenberg, JD, LLM, Policy Director, Legal Affairs | JaclynG@wsha.org | (206) 216 – 2506
Subject: Effective July 28, 2019, laws governing access to and delivery of behavioral health services for adolescents have been expanded
Purpose
The purpose of this bulletin is to inform you of several law changes relating to behavioral health services for adolescents, who are minors aged 13-17. Minor Initiated Treatment, Parent Initiated Treatment, and health information and records disclosure laws have all been amended under HB 1874. WSHA worked very closely with lawmakers and stakeholders on this bill to ensure that the changes to increase access to behavioral services for adolescents comply with existing state and federal laws and can be implemented effectively by hospitals.
Applicability/Scope
The changes to state law apply to hospitals licensed under RCW 70.41, psychiatric hospitals licensed under RCW 71.12, and state psychiatric hospitals licensed under RCW 72.23.
Recommendation
WSHA strongly encourages members that provide any behavioral health services to adolescents to understand and comply with the new law, including through educational opportunities provided by WSHA, described below.
The changes in state law include:
- How an adolescent may initiate his or her own treatment;
- How a family member may initiate treatment on behalf of the adolescent without the adolescent’s consent; and,
- How providers may disclose information about the adolescent’s behavioral health treatment.
There are several important legal clarifications relating to the release of treatment information, including differentiating between substance use disorder treatment information or records and treatment information or records relating solely to mental health services.
Understanding the legal authority to provide mental health and substance use disorder services depending who initiates treatment—the adolescent or a parent—and releasing or declining to release related information or records is crucial to comply with both state and federal law.
Next Steps
- Review this Bulletin and distribute it to anyone in your organization who is involved the delivery of behavioral health services to adolescents.
- Register for and participate in the WSHA webinar on this topic in July 9, 2019. You can Register here.
- Prepare to attend the free, online training provided by the Health Care Authority regarding the new laws. WSHA will circulate the details when they are available.
Overview & Background
- Notice obligations for all hospitals. Existing law, which remains in effect and unchanged, requires all hospitals, regardless of whether they offer adolescent behavioral health services, to promptly provide parents[1] who seek treatment on behalf of an adolescent verbal and written notice of all legally available treatment options. WSHA previously provided a bulletin setting out the notice obligations, available here.
Administrators and providers are strongly encouraged to review that bulletin. In short, in order to comply with the notice requirement, hospitals must:
- Discuss with a parent/guardian all the available treatment options available under RCW 71.34;
- Provide a parent/guardian written notice regarding all the available treatment obtains; and
- Obtain a signed acknowledgement by a parent/guardian that he or she received both the verbal and written notice.
To ensure compliance, WSHA recommends that facilities obtain a signature from a parent/guardian showing receipt of the notice or indicate the reason(s) why a signature could not be obtained. A copy of the signed notice should be included in the adolescent’s chart.
[1] See expanded definition of “parent” in the next section.
- Adolescent Initiated Treatment. The new law makes several changes to the parental notice requirement under adolescent-initiated treatment, for minors aged 13-17. The new requirement for the provision of parental notice depends on what type of treatment will be provided to the adolescent.
a. Notice of admission for solely mental health treatment. When an adolescent is voluntarily admitted, the facility must provide the adolescent’s parent notice unless there is a compelling reason to believe that such disclosure would be detrimental to the adolescent or contact cannot be made.
b. Notice of admission for substance use disorder treatment. If the adolescent is voluntarily admitted for substance use disorder treatment, the facility may only provide notice to the parent if the adolescent provides written consent to the disclosure of the fact of admission and such other treatment information contained in the notice, or if permitted by federal law, 42 CFR Part 2.[1]
Existing law continues to require that parental notice be in a form “most likely to reach the parent within twenty-four hours of the adolescent’s admission.” Under the new law, however, efforts must begin as soon as reasonably practicably considering the adolescent’s immediate medical needs, subject to the limitations above for substance use disorder-related treatment.
c. Parental notice cannot be made. If parental notice cannot be provided or a professional person[2] withholds notice to a parent, the professional person in charge of the facility must consult the Washington state patrol’s missing children webpage at least once every eight hours for the first 72 hours of treatment and once every 24 hours thereafter while the adolescent continues to receive inpatient services and until contact with a parent is made. If the adolescent is publicly listed as missing, the professional person must immediately notify the Department of Children, Youth and Families, and that notification must include a description of the adolescent’s physical and emotional condition.
As background, under existing law, which remains in effect and unchanged, adolescents may, without parental consent, admit themselves to an evaluation and treatment facility for inpatient mental health treatment or an approved substance used disorder treatment program for inpatient substance use disorder treatment. Parental authorization is required for minors under 13 years of age. The professional person in charge must concur with the need for inpatient treatment. Inpatient admission may occur only if the facility provides the type of evaluation and treatment needed for the adolescent and it is not feasible to treat the adolescent in a less restrictive setting or the adolescent’s home.
[1] For an overview of 42 CFR Part 2, see Health Care Authority, Sharing Substance Use Disorder Information: A Guide for Washington State.
[2] “Professional person” is defined under RCW 71.34.020(28).
3. Expanded definition of “parent”. Under the new law, the definition of parent has been expanded in several important ways. First, it now follows the same set of definitions as exist under Washington’s Uniform Parentage Act. Second, for purposes of family-initiated treatment, “parent” also includes:
[A] person to whom a parent … has given a signed authorization to make health care decisions for the adolescent, a stepparent who is involved in caring for the adolescent, a kinship caregiver who is involved in caring for the adolescent, or another relative who is responsible for the health care of the adolescent, who may be required to provide a declaration under penalty of perjury stating that he or she is a relative responsible for the health care of the adolescent pursuant to RCW 9A.72.085.Note that in light of the new, expanded definition of parent, “parent initiated treatment” was renamed “family initiated treatment” (FIT).
Finally, in the event of a dispute between individuals authorized to act as a parent for purposes of FIT, the disagreement is to be resolved according to the priority established under surrogate decision makers statute.
- Family Initiated Treatment (FIT). The new law extends what was formerly known as “parent initiated treatment,” and which applied to inpatient and outpatient services, to other services on the continuum of care. Under the new law, a parent may also obtain partial hospitalization or intensive outpatient treatment for his or her adolescent without the consent of the adolescent.
As background, under existing law, which remains in effect and unchanged, a parent may bring or authorizing the bringing of his or her adolescent to a standalone psychiatric hospital, general acute care hospital or state psychiatric hospital and request that the adolescent be examined to determine if inpatient treatment is needed. They may also do so at a secure detoxication facility or approved substance use disorder treatment program for purposes of evaluating substance use disorder. The consent of the adolescent is not required if a parent provides consent. There is no obligation to treat an adolescent under FIT, however, the fact that the adolescent has not consent to treatment may not be the sole basis for refusing. An adolescent may not be admitted unless it is medically necessary.
- Information and Record Sharing. Under the new law, there are several important changes related to decisions to disclose (or not) information or records regarding mental illness and substance use disorder.
A. Release of solely mental health treatment information under Adolescent Initiated Treatment. A mental health professional should not proactively release information or records related solely to mental health services to a parent unless the adolescent states a clear desire to do so or there is an “imminent threat to the health and safety of the adolescent or others,” or as required by law. Providers should consult legal counsel if they are unsure how to proceed.
If a mental health professional intends to disclose information or release records to a parent relating solely to mental health treatment, he or she must give the adolescent advance notice and provide a reasonable opportunity for the adolescent to express concern about the disclosure. Any objections must be documented in the adolescent’s medical record.
B. Release of solely mental health treatment information under FIT. A mental health professional is encouraged to release information and records related to solely mental health services received by the adolescent, excluding psychotherapy notes, if they would assist the parent in understanding the nature of the evaluation or treatment. Specific types of information that fall under this classification are enumerated in the law.
If a parent requests that mental health information be disclosed to him or her, and the mental health professional determines that that release would be detrimental to the adolescent, the professional may decline to disclose such information or records. The reasons for non-disclosure must be documented in the adolescent’s medical record.
C.Substance use disorder information. Information or records about an adolescent’s substance use disorder evaluation or treatment may be provided to a parent only if the adolescent provides written consent or if permitted under federal law, 42 CFR Part 2.
A mental health professional or chemical dependency professional providing substance use disorder evaluation or treatment to an adolescent may seek the written consent of the adolescent to provide such information or records to a parent when her or she has determined that both seeking the written consent and sharing the substance use disorder treatment information or records would not be detrimental to the adolescent.
D. Release of information to the Health Care Authority. If an adolescent is admitted under FIT for solely mental health treatment, the professional person must notify the Health Care Authority within 24 hours of both the first treatment and the date of admission. If the adolescent is held for substance disorder treatment, the notice to the Health Care Authority must redact all patient identifying information about the adolescent unless the adolescent provides written consent or if permitted under federal law, 42 CFR Part 2.
E. Immunity from civil liability for decisions to disclose (or not) information or records. WSHA obtained an important protection for decisions relating to the release of information of records under the new laws. Under the new law:
Regarding solely mental health information, “a mental health professional … is not civilly liable for the decision to disclose information or records related to solely mental health services or not disclose such information or records so long as the decision was reached in good faith and without gross negligence.”
Regarding substance use disorder information, “a chemical dependency professional or mental health professional providing inpatient …substance use disorder evaluation or treatment is not civilly liable for the decision to disclose information or records related to substance use disorder treatment information with the written consent of the adolescent or to not disclose such information or records to a parent without an adolescent’s consent pursuant to this section so long as the decision was reached in good faith and without gross negligence.”
As background, under existing law, which remains in effect and unchanged, Washington’s Uniform Health Care Information Act (UHCIA), providers are authorized to disclose to a parent (as defined above) his or her minor’s mental health information or records, except psychotherapy notes, notwithstanding the general rule that such information is confidential. No authorization from the minor, including adolescents, is required.
A note on compliance with 42 CFR Part 2. The federal regulation governing the confidentiality of substance use disorder patient records provides special privacy protections to alcohol and drug abuse patient records, including those of minors. There are strict and very narrow rules under 42 CFR Part 2 regarding the release of information without the minor patient’s written consent. Administrators and providers are strongly encouraged to consult with legal counsel if there is a question about whether the regulations apply.
Resources
1. Mental health and SUD facilities lists.To assist members in fielding questions about SUD facilities, WSHA has obtained alist of facilities that offer SUD (and co-occurring) residential treatment. We are also including a list of facilities that offer adolescent acute inpatient mental health treatment. These lists include bed capacity and contact information.
Please note: The HCA is presently working on making these lists available online with regular updates. Bed capacity changes frequently. WSHA will advise hospitals when this process becomes available online. In any event, we recommend that you contact each facility to confirm capacity.
2. HCA Contact Information for FIT admissions.The provider in charge of making admission decisions is required to inform the HCA that a minor needs to be held under FIT within 24 hours of completing an evaluation, per RCW 71.34.600. Further notice to the HCA is required if the provider in charge believes the minor must be held for more than 7 days, per RCW 71.34.610. These notices should be sent to the Children’s Long-Term Inpatient Program (CLIP), which is responsible for FIT notices and reviews.
Notification for all FIT admissions and need for FIT reviews:
CLIP Administration Office Phone number: (206) 588-2985
Children’s Long-Term Inpatient Program (CLIP) Administration Office:
http://clipadministration.org/
3. HCA Guidance on Sharing SUD Information. The HCA recently released an information guide on SUD information. The information does not address release of a minor’s information but it includes helpful information about the differences between 42 CFR Part 2, HIPAA and UHCIA requirements, as well as provider resources such a template consent.
WSHA’s 2019 New Law Implementation Guide
Please visit WSHA’s 2019 implementation guide online, where you will find a list of the high priority laws that WSHA is preparing resources and information on 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.
References
RCW 71.34 – Mental Health Services for Minors
RCW 71.34.375 – Notice Requirement
RCW 70.02– Uniform Health Care Information Act
RCW 70.02.240– Mental Health Services – Minors – Permitted Disclosures
Children’s Long-term Inpatient Program (CLIP)
HCA Guidance on Sharing SUD Information
WSHA’s 2019 implementation guide online
