H-0983.1

SECOND SUBSTITUTE HOUSE BILL 1086

ByHouse Appropriations (originally sponsored by Representatives Simmons, Caldier, Bateman, Ortiz-Self, Shewmake, Ryu, Chopp, Cody, Goodman, Fey, Stonier, Macri, Fitzgibbon, Frame, and Davis)

AN ACT Relating to the creation of the state office of behavioral health consumer advocacy; amending RCW 71.24.045 and 71.24.380; adding a new chapter to Title 71 RCW; creating a new section; repealing RCW 71.24.350; and providing an effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

(a) According to the federal substance abuse and mental health services administration's 2019 report, one in five adults in the United States will experience some form of mental illness this year and one in thirteen will need substance use disorder treatment;

(b) Fewer than half of all individuals needing behavioral health treatment receive those services;

(c) An untreated behavioral health need can have long-term negative impacts on an individual's health, well-being, and productivity;

(d) The state has made significant investments in the efficacy of the publicly funded behavioral health system and its providers;

(e) Behavioral health parity is required by both state and federal law;

(f) All patients deserve to be treated and cared for with dignity and respect;

(g) Patients often cross local and administrative boundaries when seeking effective behavioral health care;

(h) Individuals with behavioral health needs are disproportionately involved with the criminal justice system; and

(i) Providing robust community-based services can prevent expensive hospitalizations.

(2) The legislature intends to create the state office of the behavioral health consumer advocacy that shall:

(a) Advocate for all patients seeking privately and publicly funded behavioral health services;

(b) Advocate for all patients receiving inpatient behavioral health services from a behavioral health provider or facility;

(c) Assure that patients are afforded all of the rights given to them by state and federal laws;

(d) Maintain independence and be free from all conflicts of interest;

(e) Provide consistent quality services across the state; and

(f) Retain an office within the boundaries of the region served by each behavioral health administrative services organization.

(1) "Behavioral health provider or facility" means:

(a) A behavioral health provider, as defined in RCW 71.24.025, to the extent it provides behavioral health services;

(b) A licensed or certified behavioral health agency, as defined in RCW 71.24.025;

(c) A long-term care facility, as defined in RCW 43.190.020, in which adults or children with behavioral health conditions reside;

(d) A state hospital, as defined in RCW 72.23.010; or

(e) A facility or agency that receives funds from the state to provide behavioral health treatment services to adults or children with a behavioral health condition.

(2) "Contracting advocacy organization" means the organization selected by the office pursuant to section 3 of this act.

(3) "Department" means the department of commerce.

(4) "Office" means the state office of behavioral health consumer advocacy.

(2) Following the selection of the organization to carry out the ministerial functions of the office, the department shall not initiate the procurement of a new contract except upon a showing of cause. Prior to ending the contract and conducting a new competitive bidding process, the department shall provide an opportunity for comment by the contracting advocacy organization and to appeal the reselection to the department.

(3) The office shall adopt rules to carry out the purposes of this chapter, including:

(a) Establishing standards for the contracting advocacy organization to use when certifying behavioral health consumer advocates;

(b) Establishing procedures consistent with this act for appropriate access by behavioral health consumer advocates to behavioral health providers or facilities; and

(c) Establishing procedures consistent with section 13 of this act to protect the confidentiality of the records of patients, residents, clients, providers, and complainants.

(1) Certification and coordination of the activities of the behavioral health consumer advocates throughout the state according to standards adopted by the office;

(2) Provision of training regarding appropriate access by behavioral health consumer advocates to behavioral health providers or facilities according to standards adopted by the office;

(3) Establishment of a toll-free telephone number, website, and other appropriate technology to facilitate access to contracting advocacy organization services for patients, residents, and clients of behavioral health providers or facilities;

(4) Establishment of a statewide uniform reporting system to collect and analyze data relating to complaints and conditions provided by behavioral health providers or facilities for the purpose of identifying and resolving significant problems, with permission to submit the data to all appropriate state agencies on a regular basis;

(5) Establishment of procedures consistent with the standards adopted by the office to protect the confidentiality of the office's records, including the records of patients, residents, clients, providers, and complainants;

(6) Establishment of a statewide advisory council, a majority of which must be composed of people with lived experience, that shall include:

(a) Individuals with a history of mental illness including one or more members from the black community, the indigenous community, or a community of color;

(b) Individuals with a history of substance use disorder including one or more members from the black community, the indigenous community, or a community of color;

(c) Family members of individuals with behavioral health needs including one or more members from the black community, the indigenous community, or a community of color;

(d) One or more representatives of an organization representing consumers of behavioral health services;

(e) Representatives of behavioral health providers and facilities, including representatives of facilities offering inpatient and residential behavioral health services;

(f) One or more certified peer specialists;

(g) One or more medical clinicians serving individuals with behavioral health needs;

(h) One or more nonmedical providers serving individuals with behavioral health needs;

(i) One representative from a behavioral health administrative services organization;

(j) Other community representatives, as determined by the office; and

(k) One representative from a labor union representing workers who work in settings serving individuals with behavioral health conditions;

(7) Monitoring the development of and recommend improvements in the implementation of federal, state, and local laws, rules, regulations, and policies with respect to the provision of behavioral health services in the state and advocate for consumers;

(8) Development and delivery of educational programs and information statewide to patients, residents, and clients of behavioral health providers or facilities, and their families on topics including, but not limited to, the execution of mental health advance directives, wellness recovery action plans, crisis services and contacts, peer services and supports, family advocacy and rights, and involuntary treatment; and

(9) Reporting to the office, the legislature, and all appropriate public agencies regarding the quality of services, complaints, problems for individuals receiving services from behavioral health providers or facilities, and any recommendations for improved services for behavioral health consumers.

(a) Identify, investigate, and resolve complaints made by, or on behalf of, patients, residents, and clients of behavioral health providers or facilities relating to administrative action, inaction, or decisions that may adversely affect the health, safety, welfare, and rights of these individuals;

(b) Assist and advocate on behalf of patients, residents, and clients of behavioral health providers or facilities before government agencies and seek administrative, legal, and other remedies on their behalf, if appropriate;

(c) Inform patients, residents, and clients or their representatives about applicable patient and resident rights, and provide information, as appropriate, to patients, residents, clients, family members, guardians, resident representatives, and others regarding the rights of patients and residents;

(d) Make recommendations through the office and the contracting advocacy organization for improvements to the quality of services provided to patients, residents, and clients of behavioral health providers or facilities; and

(e) With the consent of the patient, resident, or client, involve family members, friends, or other designated individuals in the process of resolving complaints.

(2) Nothing in this section shall be construed to grant a certified behavioral health consumer advocate:

(a) Statutory or regulatory licensing or sanctioning authority; or

(b) Binding adjudicative authority.

(2) Nothing in this chapter restricts, limits, or increases any existing right of any organizations or individuals not described in subsection (1) of this section to enter or provide assistance to patients, residents, and clients of behavioral health providers or facilities.

(3) Nothing in this chapter restricts any right or privilege of a patient, resident, or client of a behavioral health provider or facility to receive visitors of their choice.

(2) Every behavioral health provider or facility must provide access to a free telephone for the express purpose of contacting the contracting advocacy organization.

(1) Certified behavioral health consumer advocates must have training or experience in the following areas:

(a) Behavioral health and other related social services programs;

(b) The legal system, including differences in state or federal law between voluntary and involuntary patients, residents, or clients;

(c) Advocacy and supporting self-advocacy;

(d) Dispute or problem resolution techniques, including investigation, mediation, and negotiation; and

(e) All applicable patient, resident, and client rights established by either state or federal law.

(2) A certified behavioral health consumer advocate may not have been employed by any behavioral health provider or facility within the previous twelve months, except as a certified peer specialist or where prior to the effective date of this section the person has been employed by a regional behavioral health consumer advocate.

(3) No certified behavioral health consumer advocate or any member of a certified behavioral health consumer advocate's family may have, or have had, within the previous twelve months, any significant ownership or financial interest in the provision of behavioral health services.

(2) State agencies shall review a complaint against a behavioral health provider or facility which was referred to it by a certified behavioral health consumer advocate, in accordance with a mutually established working agreement, and shall forward to that certified behavioral health consumer advocate a summary of the results of the review or investigation and action proposed or taken.

(3) State agencies that regulate or contract with behavioral health providers or facilities shall adopt necessary rules to effectively work in coordination with the contracting advocacy organization.

(2) The contracting advocacy organization shall develop working agreements with each managed care organization, behavioral health administrative services organization, the state psychiatric hospitals, all appropriate state and local agencies, and other such entities as necessary to carry out their duties. Working agreements must include:

(a) The roles of the contracting advocacy organization and the agency or entity in complaint investigations, complaint referral criteria, and a process for sharing information regarding complaint review and investigation, as appropriate; and

(b) Processes and procedures to assure timely and seamless information sharing among all interested parties and that the contracting advocacy organization is responsive to all local information requests.

(2) No discriminatory, disciplinary, or retaliatory action may be taken against an employee or volunteer of a behavioral health provider or facility, or a patient, resident, or client of a behavioral health provider or facility, for any communication made, or information given or disclosed, to aid the certified behavioral health consumer advocate in carrying out duties and responsibilities under this chapter, unless the same was done maliciously or without good faith. This subsection is not intended to infringe on the rights of the employer to supervise, discipline, or terminate an employee or volunteer for other reasons, and shall serve as a defense to any action in libel or slander.

(3) All communications by a certified behavioral health consumer advocate, if reasonably related to the requirements of that individual's responsibilities under this chapter and done in good faith, are privileged and confidential, subject to the procedures established by the office.

(4) A representative of the contracting advocacy organization is exempt from being required to testify in court as to any confidential matters except upon the express consent of the client, resident, or patient that is subject to the court proceedings, or their representatives, as applicable.

(1) Regional behavioral health ombuds programs existing prior to this act be integrated into this new statewide program and the ombuds from those programs be assessed and certified by the contracting advocacy organization as behavioral health consumer advocates;

(2) There shall be a behavioral health consumer advocate office within the boundaries of the region served by each behavioral health administrative services organization;

(3) Federal medicaid requirements be complied with; and

(4) The department annually expend at least the amount expended on regional behavioral health ombuds services prior to the effective date of this section on the office and for the procurement of services from the contracting advocacy organization under this chapter.

(2) No disclosures of records and files related to a complaint or investigation may be made to any organization or individual outside the office or the contracting advocacy organization without the written consent of any named witnesses, complainants, patients, residents, or clients unless the disclosure is made without the identity of any of these individuals and without information that could reasonably identify any of these individuals unless such disclosure is required in carrying out its duties under this chapter.

(3) Notwithstanding subsections (1) and (2) of this section, disclosures of records and files may be made pursuant to a court order.

(4) All disclosures must be compliant with state and federal privacy laws applicable to the type of information that is sought for disclosure.

Sec. 14. RCW 71.24.045 and 2019 c 325 s 1008 are each amended to read as follows:

(1) The behavioral health administrative services organization contracted with the authority pursuant to RCW 71.24.381 shall:

(a) Administer crisis services for the assigned regional service area. Such services must include:

(i) A behavioral health crisis hotline for its assigned regional service area;

(ii) Crisis response services twenty-four hours a day, seven days a week, three hundred sixty-five days a year;

(iii) Services related to involuntary commitments under chapters 71.05 and 71.34 RCW;

(iv) Additional noncrisis behavioral health services, within available resources, to individuals who meet certain criteria set by the authority in its contracts with the behavioral health administrative services organization. These services may include services provided through federal grant funds, provisos, and general fund state appropriations;

(v) Care coordination, diversion services, and discharge planning for nonmedicaid individuals transitioning from state hospitals or inpatient settings to reduce rehospitalization and utilization of crisis services, as required by the authority in contract; and

(vi) Regional coordination, cross-system and cross-jurisdiction coordination with tribal governments, and capacity building efforts, such as supporting the behavioral health advisory board((, the behavioral health ombuds,)) and efforts to support access to services or to improve the behavioral health system;

(b) Administer and provide for the availability of an adequate network of evaluation and treatment services to ensure access to treatment, investigation, transportation, court-related, and other services provided as required under chapter 71.05 RCW;

(c) Coordinate services for individuals under RCW 71.05.365;

(d) Administer and provide for the availability of resource management services, residential services, and community support services as required under its contract with the authority;

(e) Contract with a sufficient number, as determined by the authority, of licensed or certified providers for crisis services and other behavioral health services required by the authority;

(f) Maintain adequate reserves or secure a bond as required by its contract with the authority;

(g) Establish and maintain quality assurance processes;

(h) Meet established limitations on administrative costs for agencies that contract with the behavioral health administrative services organization; and

(i) Maintain patient tracking information as required by the authority.

(2) The behavioral health administrative services organization must collaborate with the authority and its contracted managed care organizations to develop and implement strategies to coordinate care with tribes and community behavioral health providers for individuals with a history of frequent crisis system utilization.

(3) The behavioral health administrative services organization shall:

(a) Assure that the special needs of minorities, older adults, individuals with disabilities, children, and low-income persons are met;

(b) Collaborate with local government entities to ensure that policies do not result in an adverse shift of persons with mental illness into state and local correctional facilities; and

(c) Work with the authority to expedite the enrollment or reenrollment of eligible persons leaving state or local correctional facilities and institutions for mental diseases.

Sec. 15. RCW 71.24.380 and 2019 c 325 s 1022 are each amended to read as follows:

(1) The director shall purchase behavioral health services primarily through managed care contracting, but may continue to purchase behavioral health services directly from providers serving medicaid clients who are not enrolled in a managed care organization.

(2) The director shall require that contracted managed care organizations have a sufficient network of providers to provide adequate access to behavioral health services for residents of the regional service area that meet eligibility criteria for services, and for maintenance of quality assurance processes. Contracts with managed care organizations must comply with all federal medicaid and state law requirements related to managed health care contracting, including RCW 74.09.522.

(3) A managed care organization must contract with the authority's selected behavioral health administrative services organization for the assigned regional service area for the administration of crisis services. The contract shall require the managed care organization to reimburse the behavioral health administrative services organization for behavioral health crisis services delivered to individuals enrolled in the managed care organization.

(4) A managed care organization must contract with the contracting advocacy organization selected by the state office of behavioral health consumer advocacy established in section 3 of this act for the provision of behavioral health consumer advocacy services delivered to individuals enrolled in the managed care organization. The contract shall require the managed care organization to reimburse the office of behavioral health consumer advocacy for behavioral health consumer advocacy services delivered to individuals enrolled in the managed care organization.

(5) A managed care organization must collaborate with the authority and its contracted behavioral health administrative services organization to develop and implement strategies to coordinate care with tribes and community behavioral health providers for individuals with a history of frequent crisis system utilization.

(((5)))(6) A managed care organization must work closely with designated crisis responders, behavioral health administrative services organizations, and behavioral health providers to maximize appropriate placement of persons into community services, ensuring the client receives the least restrictive level of care appropriate for their condition. Additionally, the managed care organization shall work with the authority to expedite the enrollment or reenrollment of eligible persons leaving state or local correctional facilities and institutions for mental diseases.

(((6)))(7) As an incentive to county authorities to become early adopters of fully integrated purchasing of medical and behavioral health services, the standards adopted by the authority shall provide for an incentive payment to counties which elect to move to full integration by January 1, 2016. Subject to federal approval, the incentive payment shall be targeted at ten percent of savings realized by the state within the regional service area in which the fully integrated purchasing takes place. Savings shall be calculated in alignment with the outcome and performance measures established in RCW 71.24.435, 70.320.020, and 71.36.025, and incentive payments for early adopter counties shall be made available for up to a six-year period, or until full integration of medical and behavioral health services is accomplished statewide, whichever comes sooner, according to rules to be developed by the authority.

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