Effective July 25, 2021: Changes to State Law on Mental Health Advance Directives

Change of Law: Hospital Action Required

To:

Rural Hospital Chief Executive Officers, Emergency Department Directors, Psychiatric Hospital and Inpatient Behavioral Health Executives and Administrators, Legal Counsel and Government Affairs Staff
Please forward to all emergency department and inpatient psychiatric and substance use disorder unit staff

From:

Cara Helmer, JD, RN, Policy Director, Legal Affairs
carah@wsha.org | (206) 577-1827Ryan Robertson, Senior Director of Behavioral Health
RyanR@wsha.org, 206-216-2536

Subject:

Effective July 25, 2021: Changes to State Law on Mental Health Advance Directives

Purpose
This bulletin provides hospitals information on recent changes to 71.32 RCW, Washington’s law authorizing mental health advance directives (MHADs).

MHADs are an advance care planning tool for people to specify their preferences regarding mental health treatment (and now more broadly, “behavioral health treatment” under the new law) in the event they are incapable to make their own treatment decisions, such as in the event of an acute crisis related to mental health or substance use.

ESSB 5370 (2021), makes several changes to the law. Effective July 25, 2021, these changes include:

Authorizing notaries public to acknowledge MHADs;
Replacing references to “mental health” conditions and treatment to “behavioral health” conditions and treatment;
Allowing youth aged 13 and older to execute MHADs; and
Updating the required form for ease of use and understanding.

A complete list of changes is below.

Applicability/Scope
All hospitals, including acute care hospitals and psychiatric hospitals, may receive a MHAD from a patient or their loved one and asked to follow its directions. Emergency departments and inpatient units providing psychiatric and/or substance use disorder services are most likely to care for people with MHADs.

In addition, hospitals certified as Evaluation and Treatment facilities (E&T) are subject to requirements as licensed Behavioral Health Agencies (BHAs) under Chapter 246-341 WAC to maintain procedures for assuring a person’s right to make a MHAD and protocols for responding to requests consistent with a person’s MHAD.

Recommendation
WSHA supports the use and adherence of a MHAD where it is safe, appropriate and feasible to do so. MHADs are important tools of self-determination and can be an effective means for de-escalating a behavioral health crisis and avoiding more prescriptive crisis behavioral health services, such as involuntary treatment.

Know the law. Review this bulletin and the changes enacted in ESSB 5370 with legal counsel and risk managers to determine the impact on your hospital and any resulting changes that may be required to policies and procedures.
Update policies, procedures and forms. Hospitals will likely need to revise policies, procedures, forms and other documents related to MHADs, to reflect changes in the law including:

- Change in the age of persons who may create a MHAD.
- Expanded types of services authorized under a MHAD and the conditions on which they may be requested.
- Option for a notary public to acknowledge a MHAD as an alternative to two witnesses who know the person.

For hospitals also licensed as Evaluation and Treatment (E&T) facilities, note that your BHA license requires you to maintain procedures for assuring the rights of individuals to make a MHAD (WAC 246-341-1134). This includes maintaining protocols for responding to requests by the individual and their agent consistent with the MHAD.

Educate employees. WHSA strongly encourages all hospitals that provide behavioral health services, regardless of licensure type, to ensure staff are equipped to respond to a MHAD. This includes staff understanding what a MHAD is, what the new MHAD form includes and allows for, and they are equipped to help a person with a MHAD and their agent to rely on it as much as is appropriate for the person’s condition and the hospital’s services and capabilities allow.Understanding a MHAD is especially important for those who work with and care for people with mental health or substance use disorder-related needs, including clinical and administrative staff. WSHA has received several complaints from people with MHADs and their family members that hospitals and emergency department staff do not know what an MHAD is and decline to recognize the authority granted by the MHAD to the person’s agent, usually a family member. The recent changes are an excellent opportunity to educate employees on the law generally.

Overview

Effective July 25, 2021, the law governing MHADs is updated in several ways. The changes include:

Changing references to “mental health” to “behavioral health”, including in the context of conditions that could trigger use of a MHAD and preferred services requested in a MHAD. Behavioral health disorder means “a mental disorder, substance use disorder or co-occurring mental health and substance use disorder.” A MHAD does not mandate a hospital to offer services it does not provide or are not available (or which would violate accepted standard of care or would endanger any person’s life or health). However, hospitals are required to act in accordance with the MHAD’s provision to the fullest extent possible. For requirements on compliance and noncompliance with a MHAD, see RCW 71.32.150.
Authorizing a notary public or other individual authorized by law to acknowledge the MHAD. Under current law, the MHAD must be signed by two witnesses who know the person and can attest to the person not appearing to be acting under incapacity, fraud, undue influence or duress. Adding a notary public option is an important tool to making it easier for a person to create a MHAD. WSHA previously supported adding a notary option for execution of health care advance directives and we are pleased to see that same flexibility adopted in chapter 71.32 RCW. (See here for the WSHA bulletin on 2019 changes to the health care advance directives law changes.).One question we have received is whether employees who are state-licensed notaries may acknowledge advance directives for patients. WSHA is not aware of a state law that would prevent an employee of a provider, health system, or hospital from serving as a notary, assuming the employee is properly licensed as a state notary. Hospitals should assess their policies to determine if employees may act as notaries.
Permitting MHADs for person’s aged 13 to 17. Under the new law, a person who is at least 13 years old but under the age of majority is considered to have capacity for purposes of executing a MHAD if the person is able to demonstrate they are capable of making informed decisions related to behavioral health care. This change was made to reflect the fact that the age of consent for behavioral health care in Washington is 13. Note that this new authorization for young people does not restrict the right of a parent to seek behavioral health evaluation and treatment for a non-consenting adolescent using Family Initiated Treatment under chapter 71.34 RCW. (See here for the WSHA bulletin on Family Initiated Treatment.).

Clarifying that the person authorized as an agent of the incapacitated person under the MHAD may also act as the person’s personal representative for purposes of HIPAA. Advocates were concerned that the existing law was not sufficiently clear about authorizing a person’s agent, typically a family member such as a parent, to obtain and receive a person’s protected health care information. A common complaint from family members is that hospitals do not disclose information about a patient when the hospital is authorized to do so, including when there is an MHAD authorizing the agent as personal representative. These changes are intended to help hospitals appropriately release information to the agent. (See here for the WSHA bulletin on permitted disclosure of mental health and substance use disorder-related personal information.).
Terminating an agent’s authority under the MHAD if an action is filed to dissolve or annul the agent’s marriage or state registered participation, or for legal separation. Under existing law, no such automatic termination of authority was permitted.
Authorizing a Substance Use Disorder Professional to participate in an incapacity determination that could trigger provisions of a MHAD. Substance Use Disorder Professional “means a person certified as a substance used disorder professional by the department of health” under the Involuntary Treatment Act (ITA, chapter 71.05 RCW). There must be an incapacity determination made according to one of the statutorily prescribed ways prior to following directions made by the person’s MHAD. Under current law, one of those ways involves a Mental Health Professional (as defined under the ITA) and a health care provider making the determination. Recognizing the broader set of conditions that may trigger need for resort to a MHAD, the law has been updated to grant a SUDP to participate in that initial determination. See requirements for incapacity determinations at RCW 71.32.110 and RCW 71.32.130.
Updating the MHAD form for ease of use and understanding. The bill modifies the form provided in statute for the MHAD. The state law requires that this specific form be used. Hospitals are advised to review the new form in detail as part of their protocol review and education of hospital staff.The prescribed form is found at RCW 71.32.360. Among other changes, the modifications to the form include:
- Removal of a long notice section before the start of the content of the MHAD;
- Streamlining and simplifying certain language used in the body of the form;
- Adding a “my care needs section” near the front of the form to allow a person to describe what services and support work for them, the person’s diagnoses, medications and best approach for treatment; and
- Explicitly granting the person’s agent the authority to act as a personal representative under HIPAA.

Next Steps
In addition to the recommendations above, keep an eye out for news from WSHA about additional MHAD implementation resources.

We are developing an educational webinar for hospital members on MHADs. We will circulate information about the webinar to this mailing list soon.

Background
A mental health advance directive (MHAD) is a legal document that allows a person to declare with legal effect their preferences for receiving mental health care in the event they are not capable of making their own decisions, such as when the person is in the midst of a mental health crisis (chapter 71.32 RCW). A determination of incapacity must be made prior to relying on a MHAD.

Generally, a MHAD may include:

A person’s preferences and instructions for mental health treatment;
Consent and refusal to consent to specific types of mental health treatment;
Consent to admission to and retention in a facility for mental health treatment for up to 14 days; and
Suggested alternative responses that may supplement or be in lieu of direct treatment; and,
Appointment of an agent to make mental health treatment decisions on behalf of the person, including empowering the agent to consent to voluntary mental health treatment on behalf of the person.

A MHAD does not create an entitlement to behavioral health or medical treatment or obligate any health care provider or facility to pay costs associated with treatment. For a full list of limitations on what preferences a MHAD may provide see RCW 71.32.070.

WSHA’s 2021 New Law Implementation Guide – COMING SOON!
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. For now, you will find resources from 2019 and 2020 laws.

References