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Montana Administrative Register Notice 37-602 No. 18   09/20/2012    
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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 PUBLIC HEARING ON PROPOSED ADOPTION

 

TO:  All Concerned Persons

 

            1.  On October 11, 2012, at 1:30 p.m., the Department of Public Health and Human Services will hold a public hearing in the auditorium of the Department of Public Health and Human Services Building, 111 North Sanders, Helena, Montana, to consider the proposed adoption of the above-stated rules.

 

2.  The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice.  If you require an accommodation, contact Department of Public Health and Human Services no later than 5:00 p.m. on October 4, 2012, to advise us of the nature of the accommodation that you need.  Please contact Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail dphhslegal@mt.gov.

 3.  The rules as proposed to be adopted provide as follows:

 NEW RULE I  DEFINITIONS  (1)  "Court of Competent Jurisdiction" means a court having authority over the subject matter of civil commitment for treatment of a mental disorder and personal jurisdiction over the patient.  In Montana, courts of competent jurisdiction are:

(a)  state district courts, for all persons found within the state except members of an Indian tribe as described in (b); and

(b)  tribal courts in Montana, for a tribal member physically located within the boundaries of the tribal member's reservation of enrollment at the time of commitment.

(2)  "Department" means the Department of Public Health and Human Services.

(3)  "MSH" means Montana State Hospital.

(4)  "Professional Person" means a professional person as defined in 53-21-102, MCA.

(5)  "Superintendent" means the superintendent of Montana State Hospital.

 

AUTH:  53-1-603, 53-21-601, MCA

IMP:     53-1-601, 53-21-101, 53-21-601, MCA

 

            NEW RULE II  PREADMISSION DOCUMENTATION:  CIVIL  (1)  Before taking any of the actions listed in (a) through (e), a professional person must contact MSH by calling the main MSH switchboard at (406) 693-7000 to speak to the person responsible for admissions, and provide information and records as requested by MSH, including both physical and psychiatric medical information, sufficient to evaluate the immediate treatment needs and appropriate placement of the patient and whether alternative, less restrictive and medically appropriate facilities are available.  Actions triggering this requirement are:

            (a)  authorizing an emergency detention at MSH under 53-21-129, MCA;

            (b)  requesting a 10-day transfer to MSH under 53-21-130, MCA;

            (c)  submitting an application for voluntary admission to MSH under 53-21-111, MCA and ARM 37.66.306;

            (d)  requesting the county attorney to file a petition for involuntary civil commitment to MSH under Title 53, chapter 21, MCA; or

            (e)  filing or requesting tribal authorities to file a petition for involuntary civil commitment to MSH under applicable tribal law.

 

AUTH:  53-1-603, 53-21-601, MCA

IMP:     53-1-601, 53-21-101, 53-21-601, MCA

 

            NEW RULE III  PREADMISSION DOCUMENTATION:  FORENSIC

            (1)  Before admitting a criminal defendant committed under any provision of Title 46, chapter 14, MCA, MSH must collect information and records, including both physical and psychiatric medical information, sufficient to evaluate the immediate treatment needs of the patient, and consult with outpatient providers and criminal justice authorities to coordinate patient care during the admission process.

 

AUTH:  53-1-603, 53-21-601, MCA

IMP:     53-1-601, 53-21-101, 53-21-601, MCA

 

            NEW RULE IV  DOCUMENTATION OF LEGAL AUTHORITY TO ADMIT - PRELIMINARY DOCUMENTATION BY FAX  (1)  MSH may not admit any person for evaluation, custody, care, or treatment without having received documentation that the admission is voluntary or that other legal authority exists to admit the person.

            (2)  Documentation of legal authority to admit consists of:

            (a)  for voluntarily admission, an original signed and witnessed application for voluntary admission as provided in 53-21-111, MCA, and ARM 37.66.306;

            (b)  for emergency detention to the next regular business day, an original signed statement from a professional person after evaluation of the person pursuant to 53-21-129, MCA, that the person appears to have a mental disorder and that an emergency situation exists because any person is in imminent danger of death or bodily harm from the activity of the person;

            (c)  for ten-day interinstitutional transfer, an original written request for transfer from another DPHHS institution or the Department of Corrections pursuant to 53-21-130, MCA, which has been accepted in writing by the superintendent;

            (d)  for court-ordered detention, a certified copy of an order from a court of competent jurisdiction that authorizes the detention of the person to receive treatment for a mental disorder on a temporary basis until a hearing is held on a petition for civil commitment;

            (e)  for civil commitment, a certified copy of an order from a court of competent jurisdiction that authorizes the detention of the person to receive treatment for a mental disorder; or

            (f)  for forensic commitment, a certified copy of an order from a court having jurisdiction of criminal proceedings, committing the person under the provisions of Title 46, chapter 14, MCA, for evaluation, custody, care, or treatment.

            (3)  MSH may receive preliminary documentation by fax, if:

            (a)  the quality is sufficient to determine that the documentation meets the requirements of this rule except for the requirement of certification of a court order;

            (b)  MSH is familiar with the sender, and has no reason to believe the documentation is not authentic or has been altered; and

            (c)  the sender confirms that the required signed or certified documentation of legal authority will be mailed or otherwise delivered so as to arrive at MSH before 4:30 p.m. on the fifth business day after the date of the fax.  The address for mailed documentation is:  Admissions Office, Montana State Hospital, P.O. Box 300, Warm Springs, MT 59756.

 

AUTH:  53-1-603, 53-21-601, MCA

IMP:     53-1-601, 53-21-101, 53-21-601, MCA

 

            4.  STATEMENT OF REASONABLE NECESSITY

 

The Department of Public Health and Human Services (the department) is proposing to adopt New Rules I through IV pertaining to preadmission documentation for admission to Montana State Hospital (MSH).  These new rules include a definition section and specific documentation requirements for voluntary and involuntary, civil and forensic admissions.

 

These proposed new rules are necessary to fulfill the purpose of Montana's program for the seriously mentally ill.  Pursuant to 53-21-101, MCA, the purposes of the program are to:

 

            (1)  secure for each person who may be suffering from a mental disorder and requiring commitment the care and treatment suited to the needs of the person and to ensure that the care and treatment are skillfully and humanely administered with full respect for the person's dignity and personal integrity;

            (2)  accomplish this goal whenever possible in a community-based setting;

            (3)  accomplish this goal in an institutionalized setting only when less restrictive alternatives are unavailable or inadequate and only when a person is suffering from a mental disorder and requires commitment; and

            (4)  ensure that due process of law is accorded any person coming under the provisions of this part.

 

Timely medical and legal documentation enables the hospital to ensure that it can appropriately meet new patients' physical and psychiatric medical needs upon arrival, to assist with identifying less restrictive alternatives, and to assure that a voluntary patient has consented to care or that any involuntary detention or treatment has been properly authorized with due process of law.  Clear guidance for needed documentation will assist community providers to complete the application for admission efficiently, without unnecessary delays.

 

These proposed new rules define key terms, require mental health professional persons referring a patient for civil admission to contact MSH prior to initiating admissions and provide requested documentation, require MSH staff to obtain similar documentation for forensic patients, and require that MSH have documentation of legal authority to admit a patient either voluntarily or through legal processes prior to admission.

 

New Rule I

 

Proposed New Rule I defines five key terms used in New Rules II through IV: court of competent jurisdiction, department, MSH, professional person, and superintendent.  The rule recognizes that a court of competent jurisdiction may be a state district court applying state commitment statutes, but it may also be a tribal court, for a person who is a member of the tribe and found within the borders of the reservation of enrollment where state district courts have no jurisdiction.

 

New Rule II

 

Proposed New Rule II provides a uniform procedure for all professional persons to contact MSH and provide requested physical and psychiatric medical information sufficient to enable MSH to evaluate the patient's needs, before they initiate a voluntary admission, emergency detention, interinstitutional transfer, or civil involuntary commitment.  Appropriate medical information is vital to any hospital's admission process and enables MSH to "provide care suited to the needs of the person" as required by 53-21-106, MCA, including the patient's immediate medical needs, upon arrival.

 

MSH admits over 700 patients each year.  MSH patients tend to have a higher incidence of serious medical conditions than the general public.  Montana has hundreds of statutorily defined "professional persons" (the term includes all licensed physicians, all licensed psychologists, all credentialed psychiatric advanced practice registered nurses, and all department-certified mental health "professional persons") who may initiate emergency admission of patients to MSH or request court commitments.  The amount and timing of medical information provided to MSH for prospective patients currently varies from practitioner to practitioner.  This new rule ensures that MSH will have the information it needs during the admission process to meet the needs of each admitted patient upon arrival.

 

In addition, state law requires that less restrictive alternatives be considered prior to placement at MSH.  Because of their central function in the admission and discharge of patients to and from community-based resources, MSH and other department staff often have information about available less restrictive treatment options that individual professional persons may not have.  Advance notice of patients in crisis will enable the department to provide timely information about these alternatives to professional persons and avoid transporting patients far from their home communities when appropriate facilities are available closer to home.

 

New Rule III

 

Paralleling the provisions of New Rule II, New Rule III provides that MSH must itself obtain the needed information for forensic patients, approximately one-third of all patients at MSH.  Forensic patients are criminal defendants committed through Title 46, chapter 14, MCA, for evaluation or treatment related to fitness to proceed, after being found not guilty of criminal charges due to mental illness, or to serve a sentence in DPHHS custody after being found guilty, but with impaired ability to appreciate the criminality of their behavior or conform their behavior to the requirements of law due to mental illness.  These admissions are not initiated by professional persons, but MSH needs the same physical and psychiatric medical information to be able to meet their needs upon arrival.

 

New Rule IV

 

Proposed New Rule IV requires that MSH document the hospital's legal authority to treat before admitting any patient.  New Rule IV describes the documents necessary to establish that an admission is authorized, whether it is voluntary, on an emergency basis, a temporary statutory transfer from another institution, or the result of a civil commitment order from a court of competent jurisdiction or an order in criminal proceedings under state law.  New Rule IV also permits providing preliminary documentation by fax, with formal legal documentation to follow within five days.

 

Fiscal Impact

 

There is no fiscal impact related to these proposed rules.

 

            5.  Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing.  Written data, views, or arguments may also be submitted to: Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail dphhslegal@mt.gov, and must be received no later than 5:00 p.m., October 18, 2012.

 

6.  The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.

 

7.  The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices.  Notices will be sent by e-mail unless a mailing preference is noted in the request.  Such written request may be mailed or delivered to the contact person in 5 above or may be made by completing a request form at any rules hearing held by the department.

 

8.  An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register.  The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered.  In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

 

9.  The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

 

 

/s/ Paulette Kohman                                   /s/ Anna Whiting Sorrell                            

Rule Reviewer                                             Anna Whiting Sorrell, Director

                                                                      Public Health and Human Services

           

Certified to the Secretary of State September 10, 2012.

 

 

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