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Montana Administrative Register Notice 37-602 No. 22   11/23/2012    
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BEFORE THE Department of Public

health and human services of the

STATE OF MONTANA

 

In the matter of the adoption New Rules I through IV pertaining to documentation for admission to Montana state hospital

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NOTICE OF ADOPTION

 

TO:  All Concerned Persons

 

1.  On September 20, 2012, the Department of Public Health and Human Services published MAR Notice No. 37-602 pertaining to the public hearing on the proposed adoption of the above-stated rules at page 1835 of the 2012 Montana Administrative Register, Issue Number 18.

 

2.  The department has adopted New Rule I (37.66.201), II (37.66.203), III (37.66.205), and IV (37.66.207) as proposed.

 

3.  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:  One commenter stated Rule I (37.66.201) represented good additions to current definitions 53-21-102, MCA.

 

RESPONSE #1:  The department concurs with the respondent's assessment.

 

COMMENT #2:  One commenter recommended adding "justice of the peace" to the definition of a "court of competent jurisdiction," to help the courts improve jurisprudence and ease some of the workload and documentation requirements asked for in New Rule II (37.66.203).

 

RESPONSE #2:  The department does not agree that a justice of the peace is a "court of competent jurisdiction" for commitment purposes.  Under 53-21-122(3), MCA, a justice of the peace does not have any authority to commit or detain a person at Montana State Hospital (MSH).  A justice of the peace has only limited authority to conduct a preliminary hearing with reading of rights, when specifically requested to do so by a district judge after a petition for involuntary commitment has been filed in district court under 53-21-121, MCA.  Only a district court may issue an order of commitment.  Any change in the authority of a justice of the peace to permit commitment or detention would require legislative change.  No change is made to the proposed rule.

 

COMMENT #3:  One commenter endorsed New Rule II (37.66.203), stating that "Full medical and mental health exams are necessary for good patient care and to satisfy legal criteria."

 

RESPONSE #3: The department acknowledges this endorsement.

 

COMMENT #4:  One commenter agreed with much of the rationale, particularly in regards to the admission of forensic (criminal) patients.

 

RESPONSE #4:  The department concurs with this comment.

 

COMMENT #5:  One commenter expressed concern about "patients arriving at MSH from distant counties without the correct legal paperwork or without any advance notice," leaving the state hospital staff with "an inappropriate burden as fact finders, not to mention potential legal liabilities."

 

RESPONSE #5:  The department acknowledges this concern.  This is one of the situations the proposed rule is designed to address.

 

COMMENT #6:  One commenter cited "different beliefs and cultures" and practices that differ from county to county, and describes the rules as a "call upon professional persons to be more attentive in supplying documentation to MSH in a timely and consistent manner."

 

RESPONSE #6:  The department agrees with this comment.  This is one of the issues the proposed rule is designed to address.

 

COMMENT #7:  One commenter suggested that "mental health transfers deserve the same attention" as physical medical emergencies and that, as an example, jail inmates should be medically examined before transport for treatment at MSH.  The commenter recommends a new rule be adopted or 53-21-129, MCA be amended to include provision for emergency medical examination along with emergency mental evaluation.

 

RESPONSE #7:  The department appreciates this comment.  The current rule will require all professional persons, referring potential patients from any county, including jail inmates, to make contact with MSH staff and provide appropriate information.  The rule does not mandate that an examination take place; decisions about what information is required for appropriate treatment of a given patient are best addressed by clinical professionals on a case-by-case basis.  The federal Emergency Medical Treatment and Active Labor Act (EMTALA) already requires an emergency medical screening, which covers both physical and psychiatric emergency medical conditions, when the patient is in a hospital emergency department.

 

COMMENT #8:  One commenter suggested that the MSH voluntary admission screening forms are outdated, and should be improved by MSH.  The commenter had specific suggestions.

 

RESPONSE #8:  The department appreciates this comment, and the specific suggestions.  MSH does intend to update its forms, and this does not require rulemaking.

 

COMMENT #9:  Several commenters suggested that the requirements of New Rule II (37.66.203) are burdensome, time consuming, costly, and unduly burdensome for professional persons.  One commenter noted that professional persons who are not physicians have little or no access to medical information.  One commenter suggested that MSH pay professional persons for providing medical information to MSH when they refer a patient for admission.

 

RESPONSE #9:  The department concludes that calling MSH admitting staff and providing medical information creates only a negligible burden for a professional person, because under an appropriate standard of care, the information that causes a professional person to decide that inpatient psychiatric hospital care is necessary should be well documented and already in the hands of the referring professional.  If the professional person does not have possession of the patient's medical records, he or she should be able to provide sufficient information so that MSH admitting staff can obtain them quickly, directly from the source.

 

COMMENT #10:  One commenter stated that Rule II (37.66.203) would duplicate records already required in statutes regarding commitment proceedings in Title 53, chapter 21, part 1, MCA.

 

RESPONSE #10:  The cited statutes address only the legal aspects of admission or commitment.  They do not address preadmission documentation to MSH.  Although some of the same information may also be needed in court proceedings, physical and psychiatric medical information is a vital aspect of admission to a hospital.

 

COMMENT #11:  One commenter suggested that the requirement for a professional person to contact MSH prior to making contact with the county attorney is inconsistent with the authority of a county attorney to make detention arrangements with a mental health facility under 53-21-129, MCA.

 

RESPONSE #11:  The department concludes that there is no inconsistency under 53-21-129(2), MCA, only a professional person may authorize the emergency detention of a person suspected of having a mental disorder and danger to self or others, until the next business day.  Under the statute, the professional person is not required to contact the county attorney until the next business day.  Nothing in the statute requires that prior arrangements for emergency detention at MSH are made by the county attorney, or that a request for emergency detention come from a county attorney.

 

COMMENT #12: One commenter was concerned with New Rule II's (37.66.203) reference to less restrictive alternatives to detention at MSH, because such alternatives are not always available.  The commenter stated that "Since local counties are responsible for emergency detention costs, I don't see how MSH can tell counties how to conduct government business."

 

RESPONSE #12:  53-21-120(1), MCA, requires that detention be in the least restrictive environment.  Thus, documentation sufficient to establish whether alternative, less restrictive and medically appropriate alternatives are available is highly relevant to the proper treatment of the patient.  New Rule II (37.66.203) is directed to professional persons, and does not affect counties.  It is designed to ensure that the medical staff at MSH has adequate medical information about a person referred for admission.  No change has been made to the proposed rule.

 

COMMENT #13:  One commenter stated that new Rule II (37.66.203) "appears as another barrier and obstacle," if MSH admission staff will be asking the professional person during this telephone call if other placements were considered or available, "while the professional person is attempting to calm an acutely psychotic suicidal patient in an under staffed emergency room."

 

RESPONSE #13:  The rule is designed to improve coordination of care to ensure the most appropriate care is provided for the patient.  Detention in the least restrictive environment is a statutory requirement under 53-21-120(1), MCA.  When a patient is in an emergency room, this rule is consistent with the requirements of EMTALA, which requires the sending facility (emergency department) to provide relevant medical records to MSH, as part of the transfer process described in EMTALA.

 

COMMENT #14:  One commenter expressed concerns about conflicts between the prospective patient, the professional person, the emergency department physician, and MSH staff about what information and exams may or may not be available and needed for the MSH admission process.

 

RESPONSE #14:  The proposed rule requires the professional person to initiate contact with MSH and provide information "as requested."  The information requested will naturally depend on the circumstances.  In a referral from an emergency department, EMTALA already requires the hospital emergency department to conduct a medical screening of the patient which covers both physical and psychiatric emergency conditions, and send records to MSH prior to any transfer.  MSH would not have a need for the professional person to duplicate information being provided by another entity.

 

COMMENT #15:  One commenter suggested that the new rules specify the credentials of the "person responsible for admissions" at MSH.

 

RESPONSE #15:  The phrase "person responsible for admissions" refers to the staff member assigned to the duty of coordinating the initial intake process at the time the call comes in.  The assignment will vary depending on the time of day.  Admission privileges are granted as provided by state and federal law and "Montana State Hospital Medical Staff" bylaws.

 

COMMENT #16:  One commenter suggested several changes to existing code.

 

RESPONSE #16:  This is beyond the reach of administrative rulemaking as these issues are within the exclusive authority of the legislative branch.

 

COMMENT #17:  One commenter suggested outreach education for professional persons, public defenders, and doctors across the state.

 

RESPONSE #17:  The department appreciates this comment, and agrees that statewide stakeholder education will help in implementing the new rules.

 

COMMENT #18:  The testimony of John Glueckert, Superintendent of MSH, described receiving an unwritten suggestion that Rule IV (37.66.207) be expanded to permit transmitting documentation of court commitment orders by scan and e-mail.

 

RESPONSE #18:  The department has found that these orders frequently contain highly confidential psychiatric information about the respondent, which is protected from public disclosure by the constitutional right of privacy.  The department considers unsecured e-mail using the internet as insufficiently protective of such information.  All of the courts defined by the rule as "courts of competent jurisdiction" have access to fax technology using land lines, which is considered a secure method of transmission.  Since this technology is readily available and more protective of the individual right of privacy, no change will be made to Rule IV (37.66.207).

 

            4.  These rule amendments are effective January 1, 2013.

 

 

 

/s/ Paulette Kohman                                      /s/ Anna Whiting Sorrell                               

Rule Reviewer                                               Anna Whiting Sorrell, Director

                                                                        Public Health and Human Services

 

           

Certified to the Secretary of State November 13, 2012.

 

 

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