A collection of questions posed by rights advisors and officers with responses provided by the Office of Recipient Rights.  The responses on this site are not meant to provide a legal opinion on any particular issue but are the official interpretation of these issues by the Office of Recipient Rights.

Behavior Management Committee

Seclusion and Restraint Regarding Adults

Patient Bringing Own Medication

Conflict of Role - Rights Officer and Hearings Officer

Rule 7046 Summary of Extraordinary Incidents

Clinical Suitability for Voluntary Admission

Q:  Does the Behavior Management Committee (BMC) have to review all restrictions or limitations of rights? 

A:  Questions have arisen of late regarding revised DCH Rule 330.7199 (g), i.e. Does the Behavior Management Committee (BMC) have to review all restrictions or limitations of rights?  The answer is YES.  Whenever you are going to restrict or limit the rights of a recipient to modify a behavior, there must be a plan and that plan must be reviewed and approved by the "specially constituted body" as per Rule 7199 (g).  The answer is based on the following.

Rule 7199 has always required that any limitation or restriction on any right of a recipient must be documented in the individual plan of service (IPOS).  That documentation has always included the justification for the limitation and a time-limit for the limitation.  Most importantly, the Rule has always indicated that the IPOS include documentation of attempts that have been made to avoid the limitation as well as what actions will be taken as part of the plan to ameliorate or eliminate the need for such limitations or restrictions.  This would be the behavior treatment plan. 

Section 3.3 of Part III of the Michigan Medicaid Provider Manual requires that any behavior management or treatment plan that proposes aversive, restrictive or intrusive techniques or psycho-active drugs for behavior control purposes where the target behavior is not due to an active substantiated psychotic process, must be reviewed and approved by a specially constituted body comprised of at least three individuals, one of whom shall be a fully- or limited- licensed psychologist with the formal training or experience in applied behavior analysis, and one of whom shall be a licensed physician/psychiatrist,  This behavior management review is a Medicaid covered service available to Medicaid beneficiaries.  It was felt that this review and approval process is an essential component of a behavior treatment plan that proposes to restrict or limit the rights of any recipient of public mental health services and was therefore included in the 2007 Rule revisions.

The draft Technical Requirement for Behavior Treatment Plan Review Committee defines Restrictive Techniques as those which, when implemented, will result in the limitation of an individual's rights as specified in the Code and federal Balanced Budget Act.  (Note - this answer is based on the current draft definition of Restrictive Techniques and will be modified as necessary should that definition change.) Rule 7199 requires that any such restrictions or limitations, or any aversive or intrusive behavior treatment techniques be reviewed and approved by a formally constituted committee of mental health professionals with specific knowledge, training, and expertise in applied behavioral analysis.  This refers to the Behavior Treatment Plan Review Committee referenced in the TR and the BBA.

In accordance with the Rule language, a behavior treatment plan that proposes to use restrictive or intrusive techniques impinging upon a right guaranteed by the Code must be submitted to the Committee for review and approval.  Per the draft Technical Requirement for Behavior Treatment Plan Review Committee, that plan must include (1) results of assessments performed to rule out physical, medical and environmental causes of the seriously aggressive, self-injurious or other behaviors that place the individual or others at risk of harm, (2) a functional assessment, (3) evidence of the kinds of positive behavioral supports that have been attempted to ameliorate or eliminate the behavior and have been unsuccessful and (4) evidence based practice or practice guidelines that support the proposed treatment.

It is apparent that the Technical Requirement and Rule 7199 (g) must be considered together in determining the need for a plan to be reviewed by the Behavior Treatment Plan Review Committee.  The Department of Community Health plans on conducting training with Committees once the Technical Requirement is finalized and made part of the PIHP/CMHSP contracts.

Q:  I heard that there was a change in the rules for seclusion and restraint regarding adults.  The new procedure is that the face-to-face can be done by a nurse who then reports to the physician.  Any truth to that?

A:  In regard to ORDERING restraint or seclusion in Michigan:

42 CFR 482.13(e)(5) states: "The use of restraint or seclusion must be in accordance with the order of a physician or other licensed independent practitioner who is responsible for the care of the patient as specified under section 482.12(c) and authorized to order restraint or seclusion by hospital policy in accordance with State law."

Section 482.12(c) states in pertinent part: "In accordance with hospital policy, the governing body must ensure the following requirements are met: (1) Every Medicare patient is under the care of: (i) A doctor of medicine or osteopathy (This provision is not construed to limit the authority of a doctor of medicine or osteopathy to delegate tasks to other qualified health care personnel to the extent recognized under State law or a State regulatory mechanism.)

Michigan Mental Health Code Sections 740 and 742 state that a resident may be restrained or secluded pursuant to an authorization or order of a physician.

DCH-ORR interprets this to mean that, although the federal regulations at 42 CFR 482.13(e)((5) allow for a licensed independent practitioner to order restraint or seclusion, this licensed independent practitioner must be authorized to order restraint or seclusion by hospital policy that is compliant with state law.  The Michigan Mental Health Code does not allow any health care practitioner other than a physician to order restraint or seclusion.

In regard to FACE-TO-FACE or PERSONAL EXAMINATION of the recipient:

42 CFR 482(e)(12) states: "When restraint or seclusion is used for the management of violent or self-destructive behavior that jeopardizes the immediate physical safety of the patient, a staff member, or others, the patient must be seen face-to-face within 1 hour after the initiation of the intervention-(i) By a-(A) Physician or other licensed independent practitioner; or (B) Registered nurse or physician assistant…" 

42 CFR 482(e)(13) states: "States are free to have requirements by statute or regulation that are more restrictive than those contained in paragraph (e)(12)(i) of this section."

Michigan Mental health Code sections 740 and 742 require that a physician personally examine the resident.

DCH-ORR interprets this to mean that Michigan law has placed a more restrictive requirement on the face-to-face examination by requiring that the examination be conducted by a physician. Michigan law does not allow the personal face-to-face examination to be conducted by a registered nurse or physician assistant.

Q:  The issue is:  If a patient brings in his/her own medications (especially controlled substances) from home and while inpatient, the treating doctor discontinues the medication, do we have to give the medication back upon discharge, or can we destroy it (with documentation, doctor's order, etc.)?  If your unit currently does destroy unneeded medications, can you please send me your policy or point me to some citations?

A:  The Mental Health Code defines "facility" as a residential facility for the care or treatment of individuals with serious mental illness, serious emotional disturbance, or developmental disability that is either a state facility or a licensed facility.  The Code further defines a licensed facility as a licensed psychiatric hospital or unit or an adult foster care facility. Per MCL 330.1728, a facility may exclude particular kinds of property from the facility. Medication, including prescription and over the counter, is a common personal property exclusion.

One must look to Mental Health Code at MCL 330.1728 regarding the personal property rights of a recipient.  When the medication, i.e. personal property, is taken into the possession of the facility, a receipt must be given to the resident and another person designated by the resident.   What is most pertinent to the question at issue here is the language in Sec. 728(7),"…Any personal property in the possession of the facility at the time the resident to whom the property belongs is released from the facility shall be returned to the resident."  It is clear that any medication taken into possession by the facility is the resident's personal property and must be returned to the resident upon discharge.

Administrative Rule 330.7158 Medication, at 7158(9) states that a provider shall ensure that only medication that is authorized in writing by a physician is given to the recipient upon his or her leave or discharge.  This Rule is frequently cited as justification for not giving the recipient his or her medication taken into possession of the facility as an excluded item of personal property.  Using R 7158, a physician will refuse to "authorize" the medication upon the recipient's discharge or leave with justification based in MCL 330.1728 that it is being withheld to prevent the recipient from harming himself or herself or others.  It is the position of the Department of Community Health Office of Recipient Rights that, if the recipient poses a risk of harm to himself or herself or others if provided personal medications, the recipient is not appropriate for discharge or leave.

In summary, all personal property, including medication, taken into the possession of the facility must be returned to the recipient at the time of discharge.  

Q.  Is it permissible for a rights officer to act as the hearings officer for a PIHP/CMHSP under the Michigan Administrative Procedures Act?

A.  It is the position of the Department of Community Health Office of Recipient Rights that a PIHP/CMHSP rights officer performing the functions of a Medicaid fair hearings officer is a prohibitive conflict of roles.

MCL 330.1755(2)(c) requires that the CMHSP ensure that the rights office is protected from pressures that could interfere with the impartial, even-handed and thorough performance of its duties.  It further indicates at sec. 755(5) a number of mandates for the rights office, including the provision or coordination of the protection of recipient rights for all directly operated or contracted services and the assurance that all reports of apparent or suspected rights violations within the CMHSP are investigated in accordance with sec. 778 of the Mental Health Code.

Part 4 of the Administrative Procedures Act (APA), Act 306 of 1969, establishes PROCEDURES IN CONTESTED CASES, e.g. Medicaid Fair Hearings.  The Medicaid beneficiary and the PIHP/CMHSP, are parties to the contested case and in opposing positions. According to the MDCH Community Health Manual General Administration Chapter, Legal Section, Subject: Administrative Hearings - Policy and Procedures, the beneficiary and PIHP/CMHSP each present their position to the Administrative Law Judge (ALJ), who will determine whether the actions taken are correct according to fact, law, policy and procedure.  After any opening statements, the ALJ will direct the PIHP/CMHSP case presenter, i.e. hearings officer, to explain the position of the PIHP/CMHSP.  The required Hearing Summary, a document prepared by the hearings officer, may be read into the record.  The hearing summary includes an explanation of the action taken, the facts that lead to the action, a summary of policy or laws relied upon to take the action and any necessary clarification of these laws or policy.

A beneficiary may request a Fair Hearing whenever a covered service is denied, reduced, suspended or terminated.  Except for denial of initial access to mental health services, the beneficiary may also file a recipient rights complaint regarding a violation of his or her right to treatment and services suited to condition. It is the Code mandated responsibility of the rights officer to investigate this allegation in accordance with the provisions of Chapter 7A of the Mental Health Code. 

It is the responsibility of a hearings officer to prepare the Hearings Summary, presenting the position of the PIHP/CMHSP including the explanation of the actions and the legal, regulatory or policy bases for taking the action. If, in the course of preparing the Hearing Summary, the rights officer/hearings officer suspects that the PIHP/CMHSP has violated a Code protected right of the beneficiary and even if a rights complaint has not been filed by the beneficiary, conflict of roles immediately occurs.  The American Heritage Dictionary, Second College Edition, defines conflict as the opposition or simultaneous functioning of mutually exclusive, in this case, roles.  The role of the rights officer is to protect the rights of recipient of mental health services.  The role of the hearings officer is to prepare, justify and present the position of the PIHP/CMHSP

A rights officer's primary responsibility is to protect the rights of recipients of the PIHP/CMHSP services.  The PIHP/CMHSP is mandated by law to protect that rights officer from pressures, such as this conflict of roles, that could interfere with the rights officer's impartial and even-handed performance of his or her duties.  The rights officer may not serve two masters.

Q:  R 330.7046 as revised in December 2007 states that the record of a recipient shall contain a summary of any extraordinary incidents involving the recipient by a staff member who has personal knowledge of the extraordinary incident.  It goes on to say that an incident report or peer review report done under MCL 330.1143a is not this summary and should not be in the record.  Clarification please?

A:  One must view the historical background to this Rule in order to clarify.  The Administrative Rules of 1987 contained both R 330.7251 and R 330.7253.

R 7251dealt with case records for patients in hospitals for mentally ill and psychiatric units.  R 7251 (2) states that the case records shall include (m) "A record summary by a staff member with personal knowledge of any extraordinary incident involving the patient reviewed within 12 hours by a mental health professional." R 7253 dealt with case records for developmentally disabled residents in hospitals and facilities for the developmentally disabled. R 7253 (2) states that the case records shall include (o) "A summary entered by a staff member with personal knowledge of any extraordinary incident involving the resident reviewed within 12 hours by a mental health professional."  These summaries were "incident reports" as we know them today and were maintained in the record.

Effective July 2, 1990, the Mental Health Code was amended to add MCL 330.1143a, Review of professional practices; scope; confidentiality; disclosure. Subsection (1) required the owner, operator and governing body of a psychiatric hospital, psychiatric unit or psychiatric partial hospitalization program licensed under Chapter 1 of the Code to assure that licensed, registered or certified mental health professionals were organized in a manner to enable effective review of professional practices for the purpose of improving the quality of patient care.  This review was to include the quality and appropriateness of the care provided.  Subsection (2) indicated that the records, data and knowledge collected for or by individuals or committees assigned a review function under Subsection (1) are confidential, shall be used only for the purposes of review, and are not public records and are not subject to court subpoena.  Subsection (3) indicated that MCL 330.1143a did not preclude disclosure of case records pursuant to section 748 or disclosure to Michigan Protection and Advocacy Services. Included in the records, data and knowledge collected for the review function were incident reports.  Licensed hospitals removed the incident reports or record summaries referenced in Rule 7251 from the patient record in order to protect the integrity of the review process. They did, however, maintain a concurrent fact based summary of the "extraordinary incident" in the patient's case record as required by R 7251.

In March 1996, MCL 330.1748 was amended to add Subsection (9) which states that records, data and knowledge collected for or by individuals or committees assigned a peer review function under Code section 143a(1) are confidential, shall be used only for the purposes of peer review, are not public records and are not subject to court subpoena.  It indicates further that the subsection did not prevent disclosure of individual case records pursuant to Sec. 748.  This was the opportunity then for mental health service providers other than licensed hospitals to remove incident reports from the case record to protect the integrity of the peer or quality review process.  The summary of any "extraordinary incident" was still required to be entered into the case record based on Rules 7251 and 7253.

In July 1998, Rules 7251 and 7253 were rescinded due to the amendment to Rule 7199 regarding the written plan of services and required contents of the recipient record.  At the same time, Rule 7046 became effective.  It was revised again in December 2007 to include the clarification that an incident or peer review report generated pursuant to Section 143a of the Code does not constitute the report required under Rule 7046 and that the incident or peer review report must not be maintained in the clinical record.

Based on the above, it should be clear that an "extraordinary incident" is any occurrence for which staff are required to write an incident report.  The trade off for gaining the privilege of the incident report from subpoena to protect the quality review process was the requirement that the case record contain a fact based summary description of the incident that would be available to individuals, e.g. litigants, in accordance with the provisions of Section 748 of the Code. 

Q.  Can a state operated or licensed hospital require that an individual who has executed an application for voluntary admission be accompanied by a petition or a Demand for Hearing?

A.  NO.  MCL 330.1409 requires that each community mental health services program (CMHSP) establish a preadmission screening unit to provide assessment and screening services for individuals being considered for admission to department operated hospitals or those under contract with the CMHSP.  

If an individual is brought to the unit by a peace officer or ordered by the court to be examined, the unit shall assess and examine the individual or refer to a hospital for examination.  If the individual meets the requirements for hospitalization, the pre-admission screening unit shall designate the hospital to which the individual shall be admitted. In this situation, the individual will most likely be accompanied by a petition or application for involuntary admission.

In other situations, if the individual is being considered for hospital admission and is determined by the prescreening unit to be clinically suitable for hospitalization, the individual will execute an application for voluntary admission and the preadmission screening unit will authorize voluntary admission to the hospital.  The receiving hospital will receive notice of the authorization for voluntary admission.

At this point in time, Administrative Rule 330.4031 comes into play.  The hospital director/designee must evaluate the individual's clinical suitability for voluntary admission.  The following criteria are required in making the determination:

(a)  The individual has a condition that the hospital director determines can benefit from the inpatient treatment that is provided by the hospital,

(b)  Appropriate alternatives to hospitalization have been considered by the hospital and the CMHSP in the individual's county of residence (generally through the prescreening unit)

(c)  Adequate alternative treatment is not available or suitable at the time of admission as determined by the   hospital and the CMHSP (generally through the prescreening unit)

Per Administrative Rule 330.4039, if the hospital director/designee does not determine the individual to be clinically suitable for voluntary admission based on the above criteria, he or she shall deny the request and refer the individual to the appropriate CMHSP.  The specific reasons for the denial must be made known to the individual/applicant, must be documented and a copy of the documentation given to the individual/applicant. With the individual/applicant's consent, the CMHSP shall be notified of the referral.

Nothing in MCL 330.1409 or Rules 4031 and 4039 allows the hospital to require that the individual be accompanied by a petition or application for involuntary admission.  The statutorily required process is:

• Individual is authorized for voluntary admission by the CMHSP preadmission screening unit,
• The hospital is notified,
• The individual is transported or presents to the hospital,
• The hospital evaluates and determines based on Rule 4031 criteria:

Individual IS clinically suitable for voluntary admission = voluntary admission

Individual IS NOT clinically suitable for voluntary admission = voluntary admission is denied and individual is referred to the appropriate CMHSP

It is clear that the only reasons a hospital can deny a voluntary admission are that the individual does not have a condition that can benefit from inpatient treatment offered by the hospital, which contradicts the determination made by the CMHSP prescreening unit, and/or that there are adequate and suitable alternatives to hospitalization.

Please note that, even if the individual is asserted to be a person requiring treatment per MCL 330.1401 criteria and is accompanied by a petition or application for involuntary admission, the hospital may consider the individual suitable for voluntary admission.  If the hospital so determines, the hospital must offer the person the opportunity to request or make application for voluntary hospitalization.  If the individual is then voluntarily hospitalized, the hospital must inform the court and the court must dismiss any pending proceeding for admission, unless it finds that dismissal would not be in the best interest of the individual or the public.

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