BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the adoption of New Rules I through XXVII pertaining to behavioral health inpatient facilities (BHIF)

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NOTICE OF ADOPTION

 

TO:  All Concerned Persons

 

            1.  On May 28, 2009, the Department of Public Health and Human Services published MAR Notice No. 37-473 pertaining to the public hearing on the proposed adoption of the above-stated rules at page 844 of the 2009 Montana Administrative Register, Issue Number 10.

 

            2.  The department has adopted New Rule III (37.106.1703), IV (37.106.1704), V (37.106.1705), VI (37.106.1708), VII (37.106.1709), VIII (37.106.1710), IX (37.106.1711), X (37.106.1717), XII (37.106.1718), XIII (37.106.1713), XIV (37.106.1719), XV (37.106.1720), XVI (37.106.1724), XVII (37.106.1730), XIX (37.106.1725), XX (37.106.1726), XXI (37.106.1735), XXII (37.106.1736), XXIII (37.106.1737), XXIV (37.106.1738), XXV (37.106.1739), XXVI (37.106.1740), and XXVII (37.106.1727) as proposed.

 

            3.  The department has adopted the following rules as proposed with the following changes from the original proposal.  Matter to be added is underlined.  Matter to be deleted is interlined.

 

            RULE I (37.106.1701)  SCOPE  (1)  A behavioral health inpatient facility (BHIF) is intended to provide secured inpatient psychiatric treatment for up to 16 persons, 18 years of age or older, involuntarily committed or detained, or to persons seeking treatment voluntarily.  A BHIF is not subject to hospital EMTALA regulations.  While a BHIF is defined at 53-21-102, MCA, as a mental health facility, a BHIF shall be subject to all health care facility/service standards found at Title 50, chapter 5, parts 1 and 2, MCA, in order to be licensed.

 

AUTH:  50-5-103, 53-21-194, MCA

IMP:  50-5-103, 53-21-101, 53-21-194, MCA

 

            RULE II (37.106.1702)  PURPOSE  (1)  The purpose of these rules is to establish minimum state health care facility/service licensing standards for secured nonhospital based, acute inpatient psychiatric treatment for persons, who may also have co-occurring substance use disorders; who are involuntarily committed or detained; or to persons seeking behavioral health treatment voluntarily.  While a BHIF is not a hospital, it may be collocated with a hospital.

 

AUTH:  53-21-194, MCA

IMP:  53-21-194, MCA

 

            RULE XI (37.106.1712)  DIRECT CARE AND OTHER EMPLOYEES

            (1) through (5) remain as proposed.

            (6)  Ancillary services such as laboratory or radiological services must be available to BHIF patients.  A BHIF may either provide ancillary services directly or contract with a facility licensed to provide such services.  If the ancillary services are not provided in the BHIF, the BHIF must make arrangements with the ancillary service provider for each individual patient prior to the patient's ancillary services.

 

AUTH:  53-21-194, MCA

IMP:  53-21-161, 53-21-194, MCA

 

            RULE XVIII (37.106.1731)  TRANSFER/DISCHARGE TO ANOTHER FACILITY  (1)  A patient may be discharged and transferred to another facility pursuant to 53-21-111, MCA, at any time.  The facility will contact the receiving facility to determine if a bed is available and to provide information about the individual being transferred.  Transfer protocols include but are not limited to:

            (a)  transferring facility will contact the receiving facility to determine if a bed is available;

            (b)  transferring facility will contact the receiving facility to determine if appropriate staff are or will be available to treat incoming individual;

            (c)  transport will be provided through appropriate medical means; and

            (d)  an individual's available medical documentation will accompany the individual to the receiving facility.

            (2) through (5) remain as proposed.

 

AUTH:  53-21-194, MCA

IMP:  53-21-111, 53-21-128, 53-21-129, 53-21-194, MCA

 

            4.  The department has thoroughly considered the comments and testimony received.  A summary of the comments received and the department's responses are as follows:

 

COMMENT #1:  It was asked that the department amend the scope of Rule I (37.106.1701) to better specify how the facility standards comport to the typical treatment needs of persons involuntarily committed or detained and address concerns about acute care being delivered by a facility that does not meet hospital standards.

 

RESPONSE #1:  Facility standards should not differentiate between persons involuntarily committed or detained and those seeking treatment voluntarily.  The department is licensing the facility and has no jurisdiction on the treatment plan of the individual patients.  Treatment plan variation may include dealing with issues associated with involuntary commitments if appropriate.

 

A behavioral health inpatient facility (BHIF) offers acute psychiatric services while a hospital offers acute medical services, and may offer acute psychiatric services, therefore hospital standards necessary to provide acute medical care are not required in order to provide acute psychiatric care.  (Also see response #6 below.)

 

COMMENT #2:  Several commentors suggested in Rule I (37.106.1701) that the reference to EMTALA be removed.  This is unnecessary language because EMTALA only applies to hospitals.  If a nonhospital BHIF is a department of, or located at, a hospital or if a hospital has a license as a BHIF, EMTALA would apply.

 

RESPONSE #2:  The department agrees with the commentors concerns regarding the reference to the EMTALA regulations and will remove the statement in Rule I(1) (37.106.1701).  BHIFs do not require EMTALA compliance, but if a BHIF resides in a hospital as a distinct part, EMTALA would apply due to the nature of hospital regulations.

 

COMMENT #3:  A commentor requested that in Rule I (37.106.1701) a statement on the application of EMTALA regulations as to when a hospital can appropriately transfer a patient to a BHIF.  Also, concern was expressed that a BHIF not expect a local hospital to provide stabilization or medical screening exams prior to a person being admitted to a BHIF.  The commentor states that "hospitals should not be expected to stabilize a patient or provide physical medical care, or assure detoxification prior to admission to the BHIF.  The regulations appear to require this level of care from the BHIF".

 

RESPONSE #3:  The department is seeking clarification in Rule I (37.106.1701) on the application of EMTALA regulations from the Centers for Medicare and Medicaid Services (CMS).  However, once the hospital has complied with EMTALA regulations, it is appropriate for the hospital to transfer the patient.  Hospitals routinely transfer or discharge patients to a lower level of care, i.e., nursing home, assisted living, or outpatient programs.  A BHIF, mental health outpatient services, or the Montana State Hospital may provide the appropriate level of care services for a patient being transferred from the hospital setting.  Hospitals are required under EMTALA to stabilize any patient in crisis, or attend to the immediate medical needs of anyone requiring treatment before a transfer is initiated by the hospital to any other level of care.  (Also see response #10 below.)

 

COMMENT #4:  A commentor questioned whether a hospital emergency room physician who deems a patient critical due to psychiatric reasons can transfer the patient to a nonhospital licensed facility and will the hospital be required to keep the patient until stable.

 

RESPONSE #4:  Hospitals are expected to stabilize any patient in crisis, or attend to the medical needs of anyone requiring treatment.  Under the provisions of Title 42 CFR, chapter IV, section 489.24, hospitals with an emergency department that participate in Medicare are required under EMTALA to provide for an appropriate transfer of the individual if the hospital does not have the capability or capacity to provide the treatment necessary to stabilize the emergency medical condition or the capability or capacity to admit the individual.  A BHIF is just one of the options available to the transferring hospital.

 

COMMENT #5:  A commentor indicated that the rules are not clear about the level of care required.  BHIFs can accept psychiatric patients in crisis, but there is no requirement for psychiatrists but that a nurse practitioner may fulfill the role.  The commentor questions whether the nurse practitioner's scope of practice includes care of a patient with acute psychiatric illness.  The commentor also questions whether a hospital can transfer an acutely ill psychiatric patient to a BHIF that is not staffed with physicians.

 

RESPONSE #5:  The definition of mental health professional in 53-21-102, MCA, includes an advanced practice registered nurse, as provided for in 37-8-202, MCA, with a clinical specialty in psychiatric mental health nursing.  Under the provisions of 42 CFR section 489.24, hospitals with an emergency department that participate in Medicare are required under EMTALA to provide for an appropriate transfer of the individual if the hospital does not have the capability or capacity to provide the treatment necessary to stabilize the emergency medical condition or the capability or capacity to admit the individual.

 

COMMENT #6:  A commentor requested that in Rule II (37.106.1702) the term "acute" be removed because acute care is singularly a hospital service.  The commentor also suggests that Rule XI (37.106.1712) requiring 24 hours a day, seven days per week nursing care delivered under the direction of physicians Rule VII (37.106.1709) indicate that these requirements are essentially those of a hospital.  A nonhospital BHIF is a lower level of care and the commentor indicates that the rules should be crafted to assure the provider community understands the distinction.

 

RESPONSE #6:  Section 53-21-102, MCA, allows a behavioral health inpatient facility to be either an integral part of a hospital or a free standing service, therefore a BHIF may be located within a hospital.  A BHIF offers acute psychiatric services while a hospital offers acute medical services, and may offer psychiatric services.  While the department agrees that 24 hours a day, seven days per week nursing care is a requirement for hospitals, the department disagrees that this requirement is exclusive to hospitals.  The rules establish some hospital standards in BHIFs to ensure patient safety and that an adequate continuum of care is provided.  However, the department understands the commentor's concerns and will remove the term "acute" from Rule II (37.106.1702).

 

COMMENT #7:  A commentor recommended that in Rule VII (37.106.1709) the rule either specifies that the medical director may also be responsible to provide facility patient care or that Rule XI (37.106.1712) be amended to specify when a physician, physician assistant, or advanced practice registered nurse be available to provide needed care.

 

RESPONSE #7:  The department believes that the commentor's concern is addressed in Rule VII(2) (37.106.1709) in that the facility physician, psychiatrist, or advanced practice registered nurse may also serve as the facility medical director.

 

COMMENT #8:  A commentor recommended that in Rule XI (37.106.1712) a section be added providing ancillary services or arranging for these services as a fundamental capacity requirement.

 

RESPONSE #8:  The department agrees with the comment and will amend Rule XI (37.106.1712) to require that a BHIF provide directly or contract for ancillary services such as laboratory or radiological services.  Coordination of care is required between a hospital and a BHIF for ancillary services.  The department will require coordination of transfer or coordination of medical care to a patient receiving services in a BHIF.

 

COMMENT #9:  A commentor indicated that in Rule XVIII (37.106.1731) the department specifies that a person voluntarily admitted to a BHIF may be discharged or transferred to another facility at any time and that a BHIF admittee should not be transferred unless the person is subsequently committed pursuant to 53-21-111(1)(b)(iii), MCA, to the Montana State Hospital.  Since the BHIF has inpatient secure capacity, there should be no need to transfer the patient to another facility to receive the same care.

 

RESPONSE #9:  The department believes that the effective treatment of a patient in a BHIF may reach a point where the patient's treatment needs may be better suited from a distinct part hospital offering psychiatric services or the Montana State Hospital.

 

COMMENT #10:  A commentor indicated that a BHIF should not be allowed to engage in "patient dumping" such as when a BHIF patient requires emergency physical medical care at another facility, and that a "dial 911" policy should not be allowed for the BHIF.  The commentor also indicates that the medical director and other physicians on staff or providing care at the BHIF should hold hospital privilege to provide seamless and continuous care to patients that might be treated in either or both facilities.

 

RESPONSE #10:  Hospitals are expected to stabilize any patient in crisis, or attend to the medical needs of anyone requiring treatment.  The department will modify the rule to require a coordinated transfer for emergent medical stabilization services.  Whatever medical documentation that is available will accompany the individual.  The department will require coordination of transfer or coordination of medical care to a patient receiving services in a BHIF.

 

/s/  Lisa Swanson                                          /s/  Anna Whiting Sorrell                              

Rule Reviewer                                               Anna Whiting Sorrell, Director

                                                                        Public Health and Human Services

 

            Certified to the Secretary of State October 5, 2009.