Final DOH rules for Behavioral Health Agencies and DOH interpretive guidance for voluntary patients

To:	Psychiatric Hospital and Inpatient Behavioral Health Executives and Administrators, Legal Counsel and Government Affairs Staff
From:	Brooke Evans, PhD, MSW, LICSW, CSAC; Director, Behavioral Health BrookeE@wsha.org | (206) 577-1831 Cara Helmer, RN, JD; Policy Director, Legal Affairs CaraH@wsha.org | (206) 577-1827
Subject:	Final DOH rules for Behavioral Health Agencies and DOH interpretive guidance for voluntary patients

Purpose

This bulletin informs hospitals of two recent developments related to behavioral health services:

1. The Department of Health (DOH) final rules for Behavioral Health Agencies (including hospitals) go into effect on July 1, 2021, but DOH is planning a 6-month grace period to allow BHAs time to implement the changes. Surveyors will not issue citations for noncompliance until January 1, 2022.

2. A DOH interpretive statement for release of voluntary patients from inpatient behavioral health settings.

Applicability/Scope

DOH has issued its new final regulations for the licensing and certification of all behavioral health services under Chapter 246-341 WAC. Hospitals that provide mental health and substance use (together behavioral health) services licensed and certified by the Department of Health (DOH), including voluntary and involuntary treatment.

Chapter 246-341 WAC applies to the categories of facilities known in law as “licensed or certified behavioral health agencies” (BHAs), which include psychiatric hospitals and acute care hospitals with inpatient units and outpatient clinics that provide behavioral health services licensed and certified by DOH.

All hospital units, clinics, and settings that provide licensed and certified behavioral health services are BHAs. Hospital settings that accept Single Bed Certification under RCW 71.05.745 are not captured by these regulations.

Recommendations

1. Review DOH’s new final rules, a matrix and summary of the rule changes, and the concise explanatory statement and prepare to implement them. Please keep in mind the 6-month grace period for implementation. WSHA recommends all hospital BHAs review the final rule with legal counsel and clinical and administrative personnel, as appropriate, to determine which policies and procedures require updating. WSHA recommends hospital BHAs pay particular attention to critical incident reporting requirements and documentation requirements for staff records and clinical care.

Note: DOH is preparing a guide to help BHAs implement the new final rules. WSHA will share the guide as soon as it becomes available. 

2. Review DOH’s interpretive statement on the release of voluntary patients from inpatient behavioral health settings to ensure your hospital’s compliance.

3. Prepare to participate in “Phase 2” of the rulemaking. The final rules were Phase 1 of a multi-year, multi-phase rulemaking project by DOH to update and modernize the licensing regime for behavioral health services in Washington. DOH rulemaking workshops for Phase 2 will begin Tuesday, July 20, 2021. They will run weekly 11 am to 1 pm for several months. Further details will be available soon.

As we did with Phase 1, WSHA will convene a workgroup of interested members to evaluate DOH’s rulemaking proposals during DOH’s workshops. Hospitals are encouraged to have at least one person from their organization participate. Please complete this FORM by July 16 with the contact person’s information. We will reach out at the end of July.

 Overview of Behavioral Health Rules

Chapter 246-341 WAC regulates the provision of all licensed behavioral health services. The chapter sets out the administrative requirements that facilities and providers must meet to provide behavioral health services, including those licensed under chapter 71.05 RCW (involuntary treatment of adults) and chapter 71.24 RCW (the Community Behavioral Health Services Act). These services were historically overseen by the Department of Social and Human Services (DSHS) but were transferred to DOH in 2018 as part of the state’s move toward integration.

In 2020, DOH initiated a multi-year, multi-phase rulemaking process to modernize the entire chapter, to reflect current practice, ease administrative burden and help increase access to services by removing avoidable regulatory barriers.

• Phase 1. Phase 1 took place in summer and fall 2020, over the course of five months and 17 workshops. The final rules –effective July 1, 2021, (compliance date January 1, 2022)—are a product of those workshops. This phase concentrated on updating language, refining inconsistencies across services, and addressing other obvious areas of improvement.
• Phase 2. Phase 2 begins in late July and will focus on re-thinking behavioral health certifications generally. Currently, there are individual certifications for various types of services, such as involuntary mental health treatment or outpatient voluntary substance use treatment. In phase 2, DOH will consider a more global approach.
• Phase 3. Phase 3 is scheduled to start summer 2022 and will focus on aligning regulations across facility types. This rulemaking will be especially relevant for hospital BHAs, as dually regulated entities.

WSHA and a workgroup of members were active participants in Phase 1 rulemaking, which spanned the entire chapter including sections governing BHAs’ general regulatory requirements for licensing processes, deeming, governance, administration, policies and procedures, staffing requirements, assessments and individual service plans; as well as the specialized certifications for behavioral health services, including mental health and substance use outpatient services, recovery support services, crisis services, substance use disorder inpatient treatment, mental health inpatient treatment and involuntary treatment services, among others.

WSHA provided regulatory language to DOH, as requests or recommendation, in each of these areas, especially as related to general licensure and certification requirements, documentation and supervision requirements, individual patient record requirements, and inpatient and involuntary treatment rules, among others. We are very pleased that DOH accepted most of our recommended changes, including:

• Better alignment of the reporting timelines between critical incident reporting requirements under WAC 246-341-0420(13) with the reporting requirement for adverse events hospitals are also subject to under Chapter 346-02 WAC. Currently, hospital BHAs are subject to separate reporting requirements as a hospital and a BHA for potentially the same patient safety event. Currently, the hospital regulations mandate reporting within 48 hours of confirming the event, while the BHA regulations require reporting within 24 hours of the event taking place. DOH modified the BHA reporting to better align with hospital reporting, extending the reporting timeframe to 48 hours of the event. This is a helpful alignment, even if it is incomplete. WSHA will continue to seek greater alignment across facility regulations in the next phases of rulemaking.
• Mandating DOH to issue license renewals if all requirements are met and the renewal request is received prior to the expiry of the existing license (WAC 246-341-300(4)). WSHA received feedback from members that DOH often did not issue license renewals in a timely way, which often created an impression that hospitals were operating outside of their license. WSHA is pleased to see DOH mandate this important efficiency.
• Narrowing the scope of accreditation documents to be shared with the Department for deeming purposes to “relevant” records (WAC 246-341-310(7)). WSHA strongly supported DOH’s overall intention to reduce the amount of administrative burden associated with operating as a BHA and narrowing the scope of review documents will help create meaningful efficiencies for hospitals and staff, reducing surveyor time, and distracting from the provision of care.
• Allowing an agency administrator to delegate responsibilities to appropriate staff (WAC 246-341-0410(2)). Under the regulations, BHA administrators were not authorized to delegate certain responsibilities to staff.
• Streamlining the requirements related to patient rights (WAC 246-341-0600(2)). The provision of behavioral health care, particularly involuntary treatment, implicates a person’s legal rights as much as their medical care. Several statutes, including chapters 71.05 RCW and 71.34 RCW, stipulate specific rights to individuals receiving this type of treatment with the effect that it can create overlapping requirements with similar but separate rights. This amendment will allow hospitals to streamline the list of rights they provide to involuntary patients, and in turn this will help patients better understand exactly what they may and may not do in the context of this provision of care.
• Broadening the scope of what constitutes a reasonable search to include searches done to address the risk of harm to the patient or others and broadening the definition of “reasonable” to include invasive searches upon intake (WAC-246-341-600(2)(d)). Related to patient rights, this change provides important flexibility for hospital staff to appropriately evaluate a person’s belongings to ensure a person’s safety, as well as the safety of other patients and staff members.

WSHA believes most changes in the final rule create helpful efficiencies for operating your behavioral health treatment programs, including streamlining licensing and certification requirements, and loosening unnecessary and burdensome administrative requirements. Nevertheless, there are many discrete regulatory changes specific to a particular service and members are encouraged to review the regulations closely. Note: DOH is preparing a guide for BHAs to help implement the new rules. WSHA will share the guide as soon as it becomes available.

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.

References

• Chapter 246-341 WAC – effective until July 1, 2021, (with 6-month grace period after that)
• New final regulations – effective as of July 1, 2021, (noncompliance cited only as of January 1, 2022)
• Matrix and summary of the rule changes
• Concise explanatory statement