HOUSE BILL REPORT
E2SHB 1086
As Amended by the Senate
Title: An act relating to the creation of the state office of behavioral health consumer advocacy.
Brief Description: Creating the state office of behavioral health consumer advocacy.
Sponsors: House Committee on Appropriations (originally sponsored by Representatives Simmons, Caldier, Bateman, Ortiz-Self, Shewmake, Ryu, Chopp, Cody, Goodman, Fey, Stonier, Macri, Fitzgibbon, Frame and Davis).
Brief History:
Committee Activity:
Health Care & Wellness: 1/18/21, 1/27/21 [DPS];
Appropriations: 2/16/21, 2/17/21 [DP2S(w/o sub HCW)].
Floor Activity:
Passed House: 3/1/21, 97-0.
Senate Amended.
Passed Senate: 4/7/21, 49-0.
Brief Summary of Engrossed Second Substitute Bill
  • Eliminates regional behavioral health ombuds services and creates the State Office of Behavioral Health Consumer Advocacy (SOBHCA) to establish rules, standards, and procedures for behavioral health consumer advocacy services across the state.
  • Directs the SOBHCA to contract with a private nonprofit organization to provide behavioral health consumer advocacy services including certifying and coordinating the activities of behavioral health advocates throughout the state.
  • Requires Medicaid managed care organizations to contract with the private nonprofit organization to provide behavioral health consumer advocacy services to their enrollees.
HOUSE COMMITTEE ON HEALTH CARE & WELLNESS
Majority Report: The substitute bill be substituted therefor and the substitute bill do pass.Signed by 15 members:Representatives Cody, Chair; Bateman, Vice Chair; Schmick, Ranking Minority Member; Caldier, Assistant Ranking Minority Member; Bronoske, Davis, Harris, Macri, Maycumber, Riccelli, Rude, Simmons, Stonier, Tharinger and Ybarra.
Staff: Christopher Blake (786-7392).
HOUSE COMMITTEE ON APPROPRIATIONS
Majority Report: The second substitute bill be substituted therefor and the second substitute bill do pass and do not pass the substitute bill by Committee on Health Care & Wellness.Signed by 33 members:Representatives Ormsby, Chair; Bergquist, Vice Chair; Gregerson, Vice Chair; Macri, Vice Chair; Stokesbary, Ranking Minority Member; Chambers, Assistant Ranking Minority Member; Corry, Assistant Ranking Minority Member; MacEwen, Assistant Ranking Minority Member; Boehnke, Caldier, Chandler, Chopp, Cody, Dolan, Dye, Fitzgibbon, Frame, Hansen, Harris, Hoff, Jacobsen, Johnson, J., Lekanoff, Pollet, Rude, Ryu, Schmick, Senn, Springer, Steele, Stonier, Sullivan and Tharinger.
Staff: Andrew Toulon (786-7178).
Background:

The Health Care Authority provides medical care services to eligible low-income state residents and their families, primarily through the Medicaid program.  Coverage for medical services is primarily provided through managed care systems.  Managed care is a prepaid, comprehensive system for delivering a complete medical benefits package that is available for eligible families, children under age 19, low-income adults, certain disabled individuals, and pregnant women.  Since January 1, 2020, all behavioral health services and medical care services have been fully integrated in a managed care health system for most Medicaid clients.
 
While most Medicaid clients receive behavioral health services through a managed care health system, behavioral health administrative service organizations administer certain behavioral health services that are not covered by the managed care health system within a specific regional service area.  There are 10 behavioral health administrative service organizations in Washington.  The services provided by a behavioral health administrative service organization include maintaining continuously available crisis response services, administering services related to the involuntary commitment of adults and minors, coordinating planning for persons transitioning from long-term commitments, maintaining an adequate network of evaluation and treatment services, and providing services to non-Medicaid clients in accordance with contract criteria.  In addition, each behavioral health administrative service organization must provide for an independent, separately funded behavioral health ombuds office that maximizes the use of consumer advocates.

Summary of Engrossed Second Substitute Bill:

Behavioral health ombuds offices that are supported by each behavioral health administrative services organization to serve a particular region are discontinued and replaced with the State Office of Behavioral Health Consumer Advocacy (SOBHCA).  By July 1, 2022, the Department of Commerce must establish the SOBHCA to provide policy direction to and to contract with a private nonprofit organization (contracting advocacy organization) to provide the behavioral health consumer advocacy services as directed by the SOBHCA.  The stated intent of the Legislature is that regional behavioral health ombuds programs be integrated into the statewide program and that regional ombuds be assessed and certified by the contracting advocacy organization. 
 
The SOBHCA and the contracting advocacy organization are assigned several responsibilities in relation to patients, residents, and clients of behavioral health providers or facilities.  A "behavioral health provider or facility" is defined to include:

  • behavioral health providers to the extent that they provide behavioral health services, such as physicians, osteopathic physicians, physician assistants, osteopathic physician assistants, advanced registered nurse practitioners, registered nurses, psychologists, substance use disorder professionals, mental health counselors, social workers, and marriage and family therapists;
  • licensed or certified behavioral health agencies;
  • certain long-term care facilities in which adults or children reside;
  • state hospitals; and
  • facilities or agencies that receive funds from the state to provide residential or treatment services to adults or children with a behavioral health condition.

 
The SOBHCA must adopt rules to establish standards for the contracting advocacy organization to use when certifying behavioral health consumer advocates, establish procedures for appropriate access by behavioral health consumer advocates to behavioral health providers or facilities, and establish procedures related to the confidentiality of records.  Prior to beginning operations, the Department of Commerce must accept recommendations from the behavioral health community for options for renaming the SOBHCA and the certified behavioral health consumer advocates in a way that shows respect for the community, and the names must be changed accordingly. 

 

The contracting advocacy organization must:

  • certify and coordinate the activities of behavioral health consumer advocates throughout the state, according to standards established by the SOBHCA;
  • provide training regarding access by behavioral health consumer advocates to behavioral health providers or facilities, according to standards established by the SOBHCA;
  • establish a toll-free phone number, website, and other technology to facilitate access to the contracting advocacy organization's services for patients, residents, and clients of behavioral health providers or facilities;
  • establish a uniform reporting system to perform functions related to complaints, conditions, and service quality provided by behavioral health providers or facilities;
  • establish procedures to protect the confidentiality of the records of patients, residents, clients, providers, and complainants;
  • monitor the development and implementation of laws and policies related to the provision of behavioral health services and advocate for consumers;
  • develop and deliver educational programs and information to patients, residents, and clients of behavioral health providers or facilities and their family on topics such as mental health advance directives, wellness recovery action plans, crisis services and contacts, family advocacy, and involuntary treatment; and
  • report to the Legislature and public agencies regarding the quality of services, complaints, problems for individuals receiving services from behavioral health providers or facilities, and any recommendations for improving services for behavioral health consumers.

 
In addition, the contracting advocacy organization must establish a statewide advisory council.  The council's members must include individuals with a history of mental illness, individuals with a history of substance use disorder, family members of individuals with behavioral health needs, representatives of an organization representing consumers of behavioral health services, representatives of behavioral health providers or facilities, peer specialists, medical clinicians and nonmedical providers serving individuals with behavioral health needs, a representative of a behavioral health administrative services organization, a representative from a labor union representing workers who work in settings serving individuals with behavioral health conditions, and other community representatives.  A majority of the council's members must be people with lived experience.  The council must select a name for the contracting advocacy organization to use for the advocacy program. 
 
The contracting advocacy organization, with the approval of the SOBHCA, must develop a process to train and certify all behavioral health consumer advocates.  Certified behavioral health consumer advocates must have training or experience in behavioral health and related social services programs; the legal system; advocacy and supporting self-advocacy; dispute or problem resolution techniques; and patient, resident, and client rights.  A certified behavioral health consumer advocate may not have been employed by a behavioral health provider or facility within the previous 12 months, except as a certified peer specialist.  Certified behavioral health consumer advocates and their family members may not have had a significant ownership or financial interest in the provision of behavioral health services within the past 12 months.
 
Certified behavioral health consumer advocates are responsible for:

  • identifying, investigating, and resolving complaints made by, or on behalf of, patients, residents, and clients of behavioral health providers or facilities involving administrative action, inaction, or decisions that may adversely affect the health, safety, welfare, and rights of these individuals;
  • assisting and advocating on behalf of patients, residents, and clients of behavioral health providers or facilities before government agencies and seeking administrative and legal remedies on their behalf;
  • informing patients, residents clients, family members, guardians, resident representatives, and others of the rights of patients and residents;
  • making recommendations through the SOBHCA and the contracting advocacy organization for improving the quality of services provided to patients, residents, and clients of behavioral health providers or facilities; and
  • involving family members, friends, and other designated individuals in the complaint resolution process with the consent of the patient, resident, or client.

 
There must be a behavioral health consumer advocate office within the boundaries of the region served by each behavioral health administrative services organization.  Medicaid managed care organizations must contract with the contracting advocacy organization for the provision of behavioral health consumer advocacy services and must reimburse the SOBHCA for behavioral health consumer advocacy services provided to their enrollees. 
 
The contracting advocacy organization must develop procedures, approved by the SOBHCA, for certified behavioral health consumer advocates to refer complaints to appropriate state or local agencies, in accordance with a mutually established working agreement.  The contracting advocacy organization must develop working agreements to coordinate services with the protection and advocacy agency, the Long-Term Care Ombuds, the Developmental Disabilities Ombuds, the Corrections Ombuds, and the Children and Family Ombuds.  The contracting advocacy organization must also develop working agreements with each managed care organization, behavioral health administrative services organization, state psychiatric hospitals, and all relevant state and local agencies.  Working agreements must set the roles of the contracting advocacy organization and the agencies, as well as the processes and procedures to assure timely and seamless information sharing. 
 
Behavioral health providers or facilities must post a notice providing the contracting advocacy organization's toll-free phone number and website.  The notice must also include the name, address, and phone number of the appropriate local behavioral health consumer advocate and a brief description of the available services.  The information must also be provided to the patient, residents, and clients of behavioral health providers or facilities, as well as their family members and legal guardians, if appropriate, upon admission to a behavioral health facility.  Every behavioral health provider or facility must provide access to a free telephone for the purpose of contacting the contracting advocacy organization.  Behavioral health providers or facilities must allow appropriate access to certified behavioral health consumer advocates.

Employees, volunteers, patients, residents, and clients of behavioral health providers or facilities are protected from discriminatory, disciplinary, or retaliatory action for good-faith communications made to a certified behavioral health consumer advocate, and the communications are deemed privileged and confidential.  Certified behavioral health consumer advocates are not liable for the good-faith performance of their responsibilities.  Records and files of the SOBHCA, the contracting advocacy organization, and certified behavioral health consumer advocates related to complaints and investigations and the identities of complainants, witnesses, patients, residents, and clients are confidential, except by court order.  Representatives of the contracting advocacy organization are exempt from testifying in court on confidential matters, unless the client, resident, or patient is the subject of the court proceeding.

EFFECT OF SENATE AMENDMENT(S):

The Senate amendment directs the State Office of Behavioral Health Consumer Advocacy (SOBHCA) to work with the Department of Social and Health Services on issues specific to state hospitals.  The issues relate to specialized training for behavioral health consumer advocates working with forensic and criminal justice involved populations at the state hospitals, access for behavioral health consumer advocates to state hospital patients and their families or guardians, collaboration between the SOBHCA and state employees who serve in an ombuds or advocate role at state hospitals, and structures for reporting to the Governor's Office about systemic issues discovered in state hospitals.  The work must be completed by July 1, 2023, and before any behavioral health consumer advocates are deployed to a state hospital.  The SOBHCA must make efforts to encourage individuals with lived experience related to state hospitals to become trained as behavioral health consumer advocates at state hospitals.
 
The Senate amendment directs the Department of Commerce to encourage persons with lived experience with behavioral health conditions or who are the family member of a person with a behavioral health condition to apply to be the contracting advocacy organization.
 
The Senate amendment requires the SOBHCA to assure the certification of behavioral health consumer advocates by October 1, 2022.
 
The Senate amendment states that it is the intent of the Legislature that the SOBHCA provide the regional behavioral health ombuds programs with any additional training to meet requirements related to the duties of certified behavioral health consumer advocates.

Appropriation: None.
Fiscal Note: Preliminary fiscal note available.
Effective Date: This bill takes effect 90 days after adjournment of the session in which the bill is passed, except for sections 15 and 16, relating to Medicaid managed care funding responsibilities and the disappearance of behavioral health ombuds services provided by behavioral health administrative services organizations, which take effect July 1, 2022. However, the bill is null and void unless funded in the budget.
Staff Summary of Public Testimony (Health Care & Wellness):

(In support) The creation of the State Office of Behavioral Health Consumer Advocacy (SOBHCA) is critical to strengthening and providing access to Washington's behavioral health services at a time when the state needs it now more than ever.  The SOBHCA will advocate for consumers of the publicly funded behavioral health system and offer services such as finding or changing providers, making sure that services are paid for, and identifying and resolving complaints.  This bill is important because the COVID-19 pandemic has had significant behavioral health impacts due to extreme isolation, increased anxiety, and increased use of alcohol and cannabis.  Mental health patients are among the most vulnerable people in the community.
 
Streamlining this point of access will impact people across the state by allowing them to access the services of the SOBHCA.  This new office will consolidate 10 existing offices and create a single point of access for easier access and streamlined service across the state while maintaining localized support.  The SOBHCA will work with other statewide agencies and represent consumers to provide coordinated services.  This office will be empowered to serve patients in psychiatric units in hospitals and ensure that patients receive appropriate treatment while respecting their legal rights.  This program could help people being discharged from hospitals.  This office will play an important role in systems feedback and accountability.
 
People have filed complaints with regional ombuds offices and encountered roadblocks in procedures at the local level.  Having an independent SOBHCA is important to clients and their family members to avoid the inherent conflicts of being both an ombuds and part of the behavioral health administrative services organization.  Patients have experienced systemic dismissal from doctors and staff leading to negative outcomes for patients, but when they have taken issues to patient rights advocates at facilities they have been ignored.  Behavioral health patients need advocates who can look out for them and not be inhibited by the employee having a conflict of interest.
 
There needs to be a reference to equity in staffing and in representation on the advisory board.  There needs to be better coordination with designated crisis responders.  There needs to be a bridge between the Department of Commerce and the Health Care Authority.  There should be an annual report to see how the program is operating.
 
(Opposed) None.
 
(Other) While it is important to make sure the best care possible is delivered and that there is coordination among state agencies, there should be clarity about how the SOBHCA would intersect with existing regulatory authorities, such as health professions licensing entities.  It needs to be clear that this bill only applies to those health care providers who are actually delivering behavioral health services.  The SOBHCA's consumer advocacy role should not be that of a regulator, but as a coordinating entity.  The SOBHCA should provide information to patients, residents, and client on topics like mental health advance directives and contacts for crisis and peer services.

Staff Summary of Public Testimony (Appropriations):

(In support) This bill is a good investment facilitating earlier intervention and assistance in keeping people out of high-cost settings.  Helping people get into treatment earlier will keep them out of jails and expensive hospital settings.  The consolidation of the 10 regional ombuds will provide for better access for consumers through moving to a statewide phone number and website.  The new SOBHCA will be free of conflict of interest within the system of payers and provide accountability to the Legislature.  The fiscal costs are indeterminate and the costs of the Department of Health will be paid from licensing fees and not come out of the State General Fund.

 

(Opposed) None.

Persons Testifying (Health Care & Wellness): (In support) Representative Simmons, prime sponsor; Laura Van Tosh; Melanie Smith and Marilyn Roberts, National Alliance on Mental Illness Washington; and Maria Fergus.
(Other) Katie Kolan, Washington State Hospital Association and Washington State Medical Association.
Persons Testifying (Appropriations): Melanie Smith, National Alliance on Mental Illness Washington.
Persons Signed In To Testify But Not Testifying (Health Care & Wellness): None.
Persons Signed In To Testify But Not Testifying (Appropriations): None.