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Office of Recipient Rights - FAQ'sA 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.
Q: May staff physically manage a consumer out of a residential setting during a fire drill if the consumer resists?
In light of the Department of Community Health's commitment to provide public mental health services within a culture of gentleness, MDCH-ORR must re-assess its position and interpretation of the Michigan Mental Health Code provided in the June 2, 1992 memo to all CMHSP Rights Officers.
It had come to MDCH-ORR's attention that there was a situation at a group home where a resident refused to participate in a practice evacuation from the home. It was MDCH-ORR's understanding that a recipient rights complaint was filed alleging that the recipient's rights had been violated in that the recipient had a right to refuse to participate in a practice fire evacuation drill. The rights officer had supported the right of the recipient to refuse and this had led to a great deal of confusion. Subsequent to this initial determination, the rights officer determined that no right of this nature existed.
At that time, it was the position of this office that there existed nowhere in the Code a right of a recipient in a group home to refuse to participate in any fire drill. "It is essential that all recipients participate fully in all practice fire evacuation drills. By failing to do so, that recipient may potentially, in the future, put not only him/herself, at risk of harm, but the other residents and staff in the home as well." This interpretation was a contributing factor to the implied approval by the department's Office of Recipient Rights for the implementation of physical management to evacuate a recalcitrant resident from a group home during a practice fire evacuation.
Seventeen years later, and given the commitment of the MDCH to a culture of gentleness, this Office's position is that refusal to participate in a practice fire evacuation from a home, either licensed, supported-independent or through a self-determination arrangement, is a serious safety issue that needs to be addressed in the individual plan of services and a positive behavioral support plan developed to gain the cooperation of the recipient WITHOUT resort to physical management. Physical management, according to Rule 330.7243, may only be used when a recipient is presenting an imminent risk of harm to himself, herself or others and lesser restrictive techniques have been unsuccessful in reducing or eliminating the imminent risk of harm. A practice fire drill does not present an imminent risk of harm and the recipient's refusal to participate in the practice provides only identification as to the safety issue and/or data for purposes of determining the efficacy of the behavioral support plan.
Of course, if there is an actual fire requiring evacuation and the recipient refuses to leave the premises voluntarily despite implementation of the behavioral support plan, staff must use the least restrictive emergency intervention to safely remove him or her.
It should be noted that this would apply to practice fire evacuations at state operated facilities and licensed hospitals as well.
Q: Must a recipient rights office investigate all allegations of retaliation/harassment based upon rights related activity because disciplinary action is required?
The Mental Health Code at Section 778(1) requires that the office initiate investigation of apparent or suspected recipient rights violations in a timely and efficient manner.
If a recipient is the victim of retaliation or harassment because he or she filed a complaint and/or was interviewed during the rights investigation process, etc., this does constitute a rights violation and must be investigated by the rights office. An intervention may not be conducted as disciplinary action is to be taken if there is evidence that retaliation or harassment has occurred. (MCL 330.1755[a]). The category in the Complaint Log should be 7545 Retaliation/Harassment.
It is a different situation when the victim of the alleged retaliation or harassment is a staff member who is the complainant, a staff of the rights office or any staff person engaged in rights related activity. In this case, it is not an apparent or suspected rights violation as a recipient is not the victim. However, the CMHSP or licensed hospital must still ensure that disciplinary action is taken if there is evidence of retaliation or harassment. (MCL 330.1755[a]). The allegation would not be entered in the Complaint Log.
Suggested Approaches for Staff to Staff Retaliation/Harassment
1. If, in the course of a rights investigation, a staff, including a staff from the rights office, alleges that he or she has been the victim of retaliation or harassment by another staff person, the rights office should refer to this allegation in its report of investigative findings. The notation should also include that the allegation has been referred to the Respondent's Director and Human Resources Office for investigation and resolution. In the Recommendation section, the rights office should include that the Respondent's Director submit in writing the results of the investigation and, if retaliation or harassment was substantiated, what disciplinary action was taken. MDCH-ORR also suggests that this language/process be included in contract language and rights policy.
2. If the allegation of retaliation/harassment comes in a complaint from a staff person, including a staff of the rights office, it may be logged as 0001 (outside jurisdiction of the rights office to investigate). The complaint may then go with a cover letter signed by the CMH Executive Director to the director of the respondent indicating the allegation is to be investigated and, if substantiated, disciplinary action must be taken against the staff person. Written documentation of the disciplinary must be submitted to the rights office. The complaint file would have the complaint, the letter and the results of the investigation by respondent including disciplinary action taken if substantiated. If the situation occurs in a licensed hospital, the rights office could refer the complaint to the Hospital Director and Human Resources Office for administrative investigation. The complaint file would include the complaint and the results of the investigation including disciplinary action taken, if substantiated. MDCH-ORR also suggests that this language/process be included in contract language and rights policy.
Q: In a "treatment suited to condition" allegation, is it appropriate to cite to relevant provisions of the individual's written IPOS in the Citations section of the report of investigative findings?
A: NO, The Michigan Mental Health Code states at MCL 330.1778(5)(c) that the investigative report shall include citations to relevant provisions of the act, rules, policies and guidelines. These are all "public documents". The IPOS is information in the record of a recipient that is not open to "public inspection", therefore it is a confidential document. ( MCL 330.1748). Specific information from the IPOS must be included in the Findings section of the investigative report. This information may then be redacted if the investigative report is to be disclosed externally to the responsible mental health agency to someone who is not the recipient or his/her legal representative without the loss of guidance to the reader/potential appellant provided by the Citations.
Suggested Policy Language:
1. All State or Federal laws, rules, or regulations governing the provision of community mental health services; and
2. Obligations of The CMHSP established under the terms of its contract with the Michigan Department of Community Health; and
3. Obligations of a Provider established under the terms of a contract or employment agreement with The CMHSP; and
4. The CMHSP's policies and procedures; and
5. Written guidelines or protocols of a Provider; and
6. Written directives from a supervisor consistent with any of the above; and
Q: Do the provisions of the MDCH Technical Requirement for Behavior Treatment Plan Review Committees, Attachment 1.4.1 to the MDCH/CMHSP contract, apply to licensed psychiatric hospitals/units (LPH/Us)?
A: NO, unless the CMHSP delegates the functions of the Committee to the LPH/U as a contracted mental health service provider.
The TR reads at III . Committee Standards
A. Each CMHSP shall have a Committee to review and approve or disapprove any plans that propose to use restrictive or intrusive interventions. A psychiatric hospital, psychiatric unit or psychiatric partial hospitalization program licensed under 1974 PA 258, MCL 330.1137, that receives public funds under contract with the CMHSP and does not have its own Committee must have access to and use the services of the CMHSP Committee regarding a behavior treatment plan for an individual receiving services from that CMHSP. If the CMHSP delegates the functions of the Committee to a contracted mental health service provider, the CMHSP must monitor that Committee to assure compliance with the Technical Requirement. (Emphasis added)
Administrative Rule 330.7199 applies to all public mental health service providers. It reads in pertinent part:
R 7199 Written plan of services
(2) The plan shall identify, at a minimum, all of the following:
(g) Any restrictions or limitations of the recipient's rights. Such restrictions, limitations or any intrusive behavior treatment techniques shall be reviewed and approved by a formally constituted committee of mental health professionals with specific knowledge, training and expertise in applied behavioral analysis. Any restriction or limitation shall be justified, time-limited, and clearly documented in the plan of service. Documentation shall be included that describes attempts that have been made to avoid such restrictions as well as what actions will be taken as part of the plan to eliminate or ameliorate the need for the restrictions in the future. (Emphasis added)
[Effective April 3, 2009 ]
Due to the nature of inpatient psychiatric services, it is not always feasible for an LPH/U to maintain its own Behavior Treatment Committee comprised of "mental health professionals with specific knowledge, training and expertise in applied behavioral analysis". As a result, it is the recommendation of the DCH Office of Recipient Rights that the CMHSP not delegate the Committee functions to the LPH/U but rather assure in contract language that the LPH/U has access to the CMHSP Committee.
Due to the short length of stay for most LPH/U patients, it is imperative that all CMHSP policies on Behavior Treatment Plan Review Committees include a process for expedited emergency Committee review/approval and obtaining temporary special consent, if applicable.
Lastly, the CMHSP should assure that, if a consumer is admitted to an LPH/U and is currently on a Behavior Treatment Plan, the plan accompany the individual to the LPH/U so that its staff may continue to implement the plan as possible and collect the required data for return to the CMHSP and its Committee upon discharge
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 who has been trained in accordance with the requirements of subsection (f) of this section."
The Michigan Mental Health Code at MCL 330.1740(5) and MCL 330.1742(6) require that a physician personally examine the resident prior to ordering restraint or seclusion.
Administrative Rule 330.7243(6) states that, if an order for restraint or seclusion is to expire and the continued use of restraint or seclusion is clinically indicated, a physician must personally examine the patient no more than 30 minutes prior to the expiration of the existing order.
Both the Mental Health Code and the Administrative Rules clearly indicate that a physician must personally examine the patient prior to ordering or re-ordering restraint or seclusion.
According to the interpretation by Alex Dukay, MDCH Bureau of Health Systems Psychiatric Licensing Consultant, a patient must be seen face to face within 1 hour after the initiation of the intervention by a physician for evaluation. A Registered Nurse or Physician Assistant who has been appropriately trained in accordance with the requirements of 42 CFR 482(f) may conduct the initial required face to face evaluation of a restrained or secluded patient only under the following limited circumstances:
The initial authorization (i.e. telephone order) for restraint is for 2 hours or less for an adult or a minor who is between the ages of 9-17 years old, or when the initial authorization (telephone order) is for 1 hour or less for a minor who is less than 9 years old.
The initial authorization (telephone order) for seclusion is for 1 hour or less and the patient is released from seclusion prior to the expiration of the initial 1 hour (or less) seclusion authorization (telephone order).
In all other circumstances, the 1 hour face to face examination of the patient must be conducted by a physician.
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.
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.
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:
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:
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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