HOUSE BILL NO. 5832

June 04, 2020, Introduced by Reps. Whiteford, Brann and Kahle and referred to the Committee on Health Policy.

A bill to amend 1974 PA 258, entitled

"Mental health code,"

by amending sections 100a, 100b, 161, 409, and 439 (MCL 330.1100a, 330.1100b, 330.1161, 330.1409, and 330.1439), section 100a as amended by 2018 PA 595, section 100b as amended by 2014 PA 200, section 161 as amended by 2012 PA 500, section 409 as amended by 2018 PA 593, and section 439 as added by 1986 PA 118, and by adding chapter 9A.

the people of the state of michigan enact:

Sec. 100a. (1) "Abilities" means the qualities, skills, and competencies of an individual that reflect the individual's talents and acquired proficiencies.

(2) "Abuse" means nonaccidental physical or emotional harm to a recipient, or sexual contact with or sexual penetration of a recipient as those terms are defined in section 520a of the Michigan penal code, 1931 PA 328, MCL 750.520a, that is committed by an employee or volunteer of the department, a community mental health services program, or a licensed hospital or by an employee or volunteer of a service provider under contract with the department, community mental health services program, or licensed hospital.

(3) "Adaptive skills" means skills in 1 or more of the following areas:

(a) Communication.

(b) Self-care.

(c) Home living.

(d) Social skills.

(e) Community use.

(f) Self-direction.

(g) Health and safety.

(h) Functional academics.

(i) Leisure.

(j) Work.

(4) "Adult foster care facility" means an adult foster care facility licensed under the adult foster care facility licensing act, 1979 PA 218, MCL 400.701 to 400.737.

(5) "Alcohol and drug abuse counseling" means the act of counseling, modification of substance use disorder related behavior, and prevention techniques for individuals with substance use disorder, their significant others, and individuals who could potentially develop a substance use disorder.

(6) "Applicant" means an individual or his or her legal representative who makes a request for mental health services.

(7) "Approved service program" means a substance use disorder services program licensed under part 62 of the public health code, 1978 PA 368, MCL 333.6230 to 333.6251, to provide substance use disorder treatment and rehabilitation services by the department-designated community mental health entity and approved by the federal government to deliver a service or combination of services for the treatment of incapacitated individuals.

(8) "Assisted outpatient treatment" or "AOT" means the categories of outpatient services ordered by the court under section 468 or 469a. Assisted outpatient treatment may include a case management plan and case management services to provide care coordination under the supervision of a psychiatrist and developed in accordance with person-centered planning under section 712. Assisted outpatient treatment may also include 1 or more of the following categories of services: medication; periodic blood tests or urinalysis to determine compliance with prescribed medications; individual or group therapy; day or partial day programming activities; vocational, educational, or self-help training or activities; assertive community treatment team services; alcohol or substance use disorder treatment and counseling and periodic tests for the presence of alcohol or illegal drugs for an individual with a history of alcohol abuse or substance use disorder; supervision of living arrangements; and any other services within a local or unified services plan developed under this act that are prescribed to treat the individual's mental illness and to assist the individual in living and functioning in the community or to attempt to prevent a relapse or deterioration that may reasonably be predicted to result in suicide, the need for hospitalization, or serious violent behavior. The medical review and direction included in an assisted outpatient treatment plan shall be provided under the supervision of a psychiatrist.

(9) "Board" means the governing body of a community mental health services program.

(10) "Board of commissioners" means a county board of commissioners.

(11) "Center" means a facility operated by the department to admit individuals with developmental disabilities and provide habilitation and treatment services.

(12) "Certification" means formal approval of a program by the department in accordance with standards developed or approved by the department.

(13) "Child abuse" and "child neglect" mean those terms as defined in section 2 of the child protection law, 1975 PA 238, MCL 722.622.

(14) "Child and adolescent psychiatrist" means 1 or more of the following:

(a) A physician who has completed a residency program in child and adolescent psychiatry approved by the Accreditation Council for Graduate Medical Education or the American Osteopathic Association, or who has completed 12 months of child and adolescent psychiatric rotation and is enrolled in an approved residency program as described in this subsection.

(b) A psychiatrist employed by or under contract as a child and adolescent psychiatrist with the department or a community mental health services program on March 28, 1996, who has education and clinical experience in the evaluation and treatment of children or adolescents with serious emotional disturbance.

(c) A psychiatrist who has education and clinical experience in the evaluation and treatment of children or adolescents with serious emotional disturbance who is approved by the director.

(15) "Children's diagnostic and treatment service" means a program operated by or under contract with a community mental health services program, that provides examination, evaluation, and referrals for minors, including emergency referrals, that provides or facilitates treatment for minors, and that has been certified by the department.

(16) "Community mental health authority" means a separate legal public governmental entity created under section 205 to operate as a community mental health services program.

(17) "Community mental health organization" means a community mental health services program that is organized under the urban cooperation act of 1967, 1967 (Ex Sess) PA 7, MCL 124.501 to 124.512.

(18) "Community mental health services program" means a program operated under chapter 2 as a county community mental health agency, a community mental health authority, or a community mental health organization.

(19) "Consent" means a written agreement executed by a recipient, a minor recipient's parent, a recipient's legal representative with authority to execute a consent, or a full or limited guardian authorized under the estates and protected individuals code, 1998 PA 386, MCL 700.1101 to 700.8206, with the authority to consent, or a verbal agreement of a recipient that is witnessed and documented by an individual other than the individual providing treatment.

(20) "County community mental health agency" means an official county or multicounty agency created under section 210 that operates as a community mental health services program and that has not elected to become a community mental health authority or a community mental health organization.

(21) "Crisis stabilization unit" means a unit that provides unscheduled activities that are provided in response to a crisis situation as well as services either as a prescreening unit established under section 409 or according to a certification issued under chapter 9A, in any event a unit providing clinical services designed to prevent or ameliorate a behavioral health crisis or reduce acute symptoms on an immediate, intensive, and time-limited basis.

(22) (21) "Department" means the department of health and human services.

(23) (22) "Department-designated community mental health entity" means the community mental health authority, community mental health organization, community mental health services program, county community mental health agency, or community mental health regional entity designated by the department to represent a region of community mental health authorities, community mental health organizations, community mental health services programs, or county community mental health agencies.

(24) (23) "Dependent living setting" means all of the following:

(a) An adult foster care facility.

(b) A nursing home licensed under part 217 of the public health code, 1978 PA 368, MCL 333.21701 to 333.21799e.

(c) A home for the aged licensed under part 213 of the public health code, 1978 PA 368, MCL 333.21301 to 333.21335.

(25) (24) "Designated representative" means any of the following:

(a) A registered nurse or licensed practical nurse licensed or otherwise authorized under part 172 of the public health code, 1978 PA 368, MCL 333.17201 to 333.17242.

(b) A paramedic licensed or otherwise authorized under part 209 of the public health code, 1978 PA 368, MCL 333.20901 to 333.20979.

(c) A physician's assistant licensed or otherwise authorized under part 170 or 175 of the public health code, 1978 PA 368, MCL 333.17001 to 333.17084 333.17097 and 333.17501 to 333.17556.

(d) An individual qualified by education, training, and experience who performs acts, tasks, or functions under the supervision of a physician.

(26) (25) "Developmental disability" means either of the following:

(a) If applied to an individual older than 5 years of age, a severe, chronic condition that meets all of the following requirements:

(i) Is attributable to a mental or physical impairment or a combination of mental and physical impairments.

(ii) Is manifested before the individual is 22 years old.

(iii) Is likely to continue indefinitely.

(iv) Results in substantial functional limitations in 3 or more of the following areas of major life activity:

(A) Self-care.

(B) Receptive and expressive language.

(C) Learning.

(D) Mobility.

(E) Self-direction.

(F) Capacity for independent living.

(G) Economic self-sufficiency.

(v) Reflects the individual's need for a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services that are of lifelong or extended duration and are individually planned and coordinated.

(b) If applied to a minor from birth to 5 years of age, a substantial developmental delay or a specific congenital or acquired condition with a high probability of resulting in developmental disability as defined in subdivision (a) if services are not provided.

(27) (26) "Director" means the director of the department or his or her designee.

(28) (27) "Discharge" means an absolute, unconditional release of an individual from a facility by action of the facility or a court.

(29) (28) "Eligible minor" means an individual less than 18 years of age who is recommended in the written report of a multidisciplinary team under rules promulgated by the department of education to be classified as 1 of the following:

(a) Severely mentally impaired.

(b) Severely multiply impaired.

(c) Autistic impaired and receiving special education services in a program designed for the autistic impaired under subsection (1) of R 340.1758 of the Michigan Administrative Code or in a program designed for the severely mentally impaired or severely multiply impaired.

(30) (29) "Emergency situation" means a situation in which an individual is experiencing a serious mental illness or a developmental disability, or a minor is experiencing a serious emotional disturbance, and 1 of the following applies:

(a) The individual can reasonably be expected within the near future to physically injure himself, herself, or another individual, either intentionally or unintentionally.

(b) The individual is unable to provide himself or herself food, clothing, or shelter or to attend to basic physical activities such as eating, toileting, bathing, grooming, dressing, or ambulating, and this inability may lead in the near future to harm to the individual or to another individual.

(c) The individual has mental illness that has impaired his or her judgment so that the individual is unable to understand his or her need for treatment and presents a risk of harm.

(31) (30) "Executive director" means an individual appointed under section 226 to direct a community mental health services program or his or her designee.

Sec. 100b. (1) "Facility" Except as otherwise provided in this subsection, "facility" means 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. Facility includes a preadmission screening unit established under section 409 that is operating a crisis stabilization unit.

(2) "Family" as used in sections 156 to 161 means an eligible minor and his or her parent or legal guardian.

(3) "Family member" means a parent, stepparent, spouse, sibling, child, or grandparent of a primary consumer, or an individual upon whom a primary consumer is dependent for at least 50% of his or her financial support.

(4) "Federal funds" means funds received from the federal government under a categorical grant or similar program and does not include federal funds received under a revenue sharing arrangement.

(5) "Functional impairment" means both of the following:

(a) With regard to serious emotional disturbance, substantial interference with or limitation of a minor's achievement or maintenance of 1 or more developmentally appropriate social, behavioral, cognitive, communicative, or adaptive skills.

(b) With regard to serious mental illness, substantial interference or limitation of role functioning in 1 or more major life activities including basic living skills such as eating, bathing, and dressing; instrumental living skills such as maintaining a household, managing money, getting around the community, and taking prescribed medication; and functioning in social, vocational, and educational contexts.

(6) "Guardian" means a person appointed by the court to exercise specific powers over an individual who is a minor, legally incapacitated, or developmentally disabled.

(7) "Hospital" or "psychiatric hospital" means an inpatient program operated by the department for the treatment of individuals with serious mental illness or serious emotional disturbance or a psychiatric hospital or psychiatric unit licensed under section 137.

(8) "Hospital director" means the chief administrative officer of a hospital or his or her designee.

(9) "Hospitalization" or "hospitalize" means to provide treatment for an individual as an inpatient in a hospital.

(10) "Incapacitated" means that an individual, as a result of the use of alcohol or other drugs, is unconscious or has his or her mental or physical functioning so impaired that he or she either poses an immediate and substantial danger to his or her own health and safety or is endangering the health and safety of the public.

(11) "Individual plan of services" or "plan of services" means a written individual plan of services developed with a recipient as required by section 712.

(12) "Intellectual disability" means a condition manifesting before the age of 18 years that is characterized by significantly subaverage intellectual functioning and related limitations in 2 or more adaptive skills and that is diagnosed based on the following assumptions:

(a) Valid assessment considers cultural and linguistic diversity, as well as differences in communication and behavioral factors.

(b) The existence of limitation in adaptive skills occurs within the context of community environments typical of the individual's age peers and is indexed to the individual's particular needs for support.

(c) Specific adaptive skill limitations often coexist with strengths in other adaptive skills or other personal capabilities.

(d) With appropriate supports over a sustained period, the life functioning of the individual with an intellectual disability will generally improve.

(13) "Licensed facility" means a facility licensed by the department under section 137 or an adult foster care facility.

(14) "Licensed psychologist" means a doctoral level psychologist licensed under section 18223(1) of the public health code, 1978 PA 368, MCL 333.18223.

(15) "Medical director" means a psychiatrist appointed under section 231 to advise the executive director of a community mental health services program.

(16) "Mental health professional" means an individual who is trained and experienced in the area of mental illness or developmental disabilities and who is 1 of the following:

(a) A physician.

(b) A psychologist.

(c) A registered professional nurse licensed or otherwise authorized to engage in the practice of nursing under part 172 of the public health code, 1978 PA 368, MCL 333.17201 to 333.17242.

(d) A licensed master's social worker licensed or otherwise authorized to engage in the practice of social work at the master's level under part 185 of the public health code, 1978 PA 368, MCL 333.18501 to 333.18518.

(e) A licensed professional counselor licensed or otherwise authorized to engage in the practice of counseling under part 181 of the public health code, 1978 PA 368, MCL 333.18101 to 333.18117.

(f) A marriage and family therapist licensed or otherwise authorized to engage in the practice of marriage and family therapy under part 169 of the public health code, 1978 PA 368, MCL 333.16901 to 333.16915.

(17) "Minor" means an individual under the age of 18 years.

(18) "Multicultural services" means specialized mental health services for multicultural populations such as African-Americans, Hispanics, Native Americans, Asian and Pacific Islanders, and Arab/Chaldean-Americans.

(19) "Neglect" means an act or failure to act committed by an employee or volunteer of the department, a community mental health services program, or a licensed hospital; a service provider under contract with the department, a community mental health services program, or a licensed hospital; or an employee or volunteer of a service provider under contract with the department, a community mental health services program, or a licensed hospital, that denies a recipient the standard of care or treatment to which he or she is entitled under this act.

Sec. 161. In conjunction with community mental health services programs, the department shall must conduct annually and forward to the governor and the house of representatives and senate appropriations committees, and the senate and house of representatives committees with legislative oversight of human services and mental health, an evaluation of the family support subsidy program that shall include, but is not limited to, all of the following:

(a) The impact of the family support subsidy program upon children covered by this act in facilities and residential care programs including, to the extent possible, sample case reviews of families who choose not to participate.

(b) Case reviews of families who voluntarily terminate participation in the family support subsidy program for any reason, particularly when if the eligible minor is placed out of the family home, including the involvement of the department and community mental health services programs in offering suitable alternatives.

(c) Sample assessments of families receiving family support subsidy payments including adequacy of subsidy and need for services not available.

(d) The efforts to encourage program participation of eligible families.

(e) The geographic distribution of families receiving subsidy payments and, to the extent possible, eligible minors presumed to be eligible for family support subsidy payments.

(f) Programmatic and legislative recommendations to further assist families in providing care for eligible minors.

(g) Problems that arise in identifying eligible minors through diagnostic evaluations performed under rules promulgated by the department of education.

(h) The number of beds reduced in state facilities and foster care facilities serving severely mentally, multiply, and autistic impaired children when the children return home to their natural families as a result of the family support subsidy program.

(i) Caseload figures by eligibility category as described in section 100a(28).100a(29).

Sec. 409. (1) Each community mental health services program shall establish 1 or more preadmission screening units with 24-hour availability to provide assessment and screening services for individuals being considered for admission into hospitals, or assisted outpatient treatment programs, or crisis services on a voluntary basis. The community mental health services program shall employ mental health professionals or licensed bachelor's social workers licensed under part 185 of the public health code, 1978 PA 368, MCL 333.18501 to 333.18518, to provide the preadmission screening services or contract with another agency that meets the requirements of this section. Preadmission screening unit staff shall be supervised by a registered professional nurse or other mental health professional possessing at least a master's degree.

(2) Each community mental health services program shall provide the address and telephone number of its preadmission screening unit or units to law enforcement agencies, the department, the court, and hospital emergency rooms.

(3) A preadmission screening unit shall assess an individual being considered for admission into a hospital operated by the department or under contract with the community mental health services program. If the individual is clinically suitable for hospitalization, the preadmission screening unit shall authorize voluntary admission to the hospital.

(4) If the preadmission screening unit of the community mental health services program denies hospitalization, the individual or the person making the application may request a second opinion from the executive director. The executive director shall arrange for an additional evaluation by a psychiatrist, other physician, or licensed psychologist to be performed within 3 days, excluding Sundays and legal holidays, after the executive director receives the request. If the conclusion of the second opinion is different from the conclusion of the preadmission screening unit, the executive director, in conjunction with the medical director, shall make a decision based on all clinical information available. The executive director's decision shall be confirmed in writing to the individual who requested the second opinion, and the confirming document shall include the signatures of the executive director and medical director or verification that the decision was made in conjunction with the medical director. If an individual is assessed and found not to be clinically suitable for hospitalization, the preadmission screening unit shall provide appropriate referral services.

(5) If an individual is assessed and found not to be clinically suitable for hospitalization, the preadmission screening unit shall provide information regarding alternative services and the availability of those services, and make appropriate referrals.

(6) A preadmission screening unit shall assess and examine, or refer to a hospital for examination, an individual who is brought to the preadmission screening unit by a peace officer or ordered by a court to be examined. If the individual meets the requirements for hospitalization, the preadmission screening unit shall designate the hospital to which the individual shall be admitted. The preadmission screening unit shall consult with the individual and, if the individual agrees, it shall the preadmission screening unit must consult with the individual's family member of choice, if available, as to the preferred hospital for admission of the individual.

(7) A preadmission screening unit may operate a crisis stabilization unit under chapter 9A. A preadmission screening unit may provide crisis services to an individual, who by assessment and screening, is found to be a person requiring treatment. In this event, crisis services may be provided for a period of up to 72 hours unless 1 of the following applies:

(a) The individual is no longer a person requiring treatment.

(b) A transfer to an inpatient bed is completed.

(c) The individual voluntarily agrees to continue receiving services longer than 72 hours and the health professional in charge believes it appropriate that the individual continue receiving services.

(d) An order for involuntary treatment of the individual has been issued under section 281b, 281c, former 433, or 434.

(8) A preadmission screening unit operating a crisis stabilization unit under chapter 9A may also offer crisis services to an individual who is not a person requiring treatment, but who is seeking crisis services on a voluntary basis.

(9) (7) If the individual chooses a hospital not under contract with a community mental health services program, and the hospital agrees to the admission, the preadmission screening unit shall refer the individual to the hospital that is requested by the individual. Any financial obligation for the services provided by the hospital shall be satisfied from funding sources other than the community mental health services program, the department, or other state or county funding.

Sec. 439. (1) A cause of action shall is not be cognizable in a court of this state against a person who in good faith files a petition under this chapter alleging that an individual is a person requiring treatment, unless the petition is filed as the result of an act or omission amounting to gross negligence or willful and wanton misconduct.

(2) A cause of action is not cognizable against a preadmission screening unit or its employees or contractors or a crisis stabilization unit or its employees or contractors, who in good faith makes a determination as to whether an individual is a person requiring treatment or not, unless the determination is the result of an act or omission amounting to gross negligence or willful and wanton misconduct.

Chapter 9A

CRISIS STABILIZATION UNITS

Sec. 971. (1) The department shall provide for certification of crisis stabilization units under this chapter to provide crisis services in a community-based setting. An individual receiving services in a crisis stabilization unit is a recipient of mental health services under chapter 7 and is afforded all rights afforded to a recipient of mental health services.

(2) Crisis services include clinical services as a short-term alternative to inpatient psychiatric hospitalization provided by a mental health professional under the supervision of a psychiatrist in the least restrictive environment as determined by the mental health professional. The primary objective of crisis services is prompt assessment, stabilization, and determination of the appropriate level of care. The main desired outcome of crisis services is to avoid unnecessary hospitalization for an individual whose crisis may resolve with time, observation, and treatment.

Sec. 972. The department shall establish minimum standards and requirements for certifying a crisis stabilization unit. Standards and requirements include, but are not limited to, the following:

(a) A standard requiring the capacity to carry out emergency receiving and evaluating functions but not to the extent that brings the crisis stabilization unit under the provisions of section 1867 of the social security act, 42 USC 1395dd.

(b) Standards requiring implementation of voluntary and involuntary admission consistent with section 409.

(c) A prohibition from holding itself out as a hospital or from billing for hospital or inpatient services.

(d) Standards regarding maximum length of stay at a crisis stabilization unit.

(e) Standards of billing for services rendered at a crisis stabilization unit.

(f) Physician oversight requirements.

(g) Nursing services.

(h) Staff to client ratios.

(i) Standards requiring implementation and posting of recipients' rights under chapter 7.

(j) Safety and emergency protocols.

(k) Pharmacy services.

(l) Standards addressing administration of medication.

(m) Standards for reporting to the department.

(n) Standards regarding a departmental complain process and procedure affording patients the right to file complaints for failure to provide services in accordance with required certification standards. The complaint process and procedure must be established and maintained by the department, must remain separate and distinct from providers delivering services under this chapter, and must not be a function delegated to a community mental health services program or an entity under contract with a community mental health services program. The complaint process must provide for a system of appeals and administrative finality.

Sec. 973. Unless licensed under part 62 of the public health code, 1978 PA 368, MCL 333.6230 to 333.6251, a crisis stabilization unit that is not also a preadmission screening unit shall not provide substance use disorder services described in chapter 2A under this certification without first obtaining the required license. If substance use disorder prevention services or substance use disorder treatment and rehabilitation services, or both, are provided, the crisis stabilization unit must obtain a license as required under section 6233 of the public health code, 1978 PA 368, MCL 333.6233.

Sec. 974. (1) An entity must not operate as a crisis stabilization unit without having a certification issued under this chapter. A crisis stabilization unit operated by a preadmission screening unit under section 409 is exempt from obtaining and maintaining certification under this chapter but must comply with all standards, policies, procedures, and guidelines set forth by the department that are applicable to crisis stabilization units. A preadmission screening unit operating a crisis stabilization unit is also exempt from obtaining a license under section 6233 of the public health code, 1978 PA 368, MCL 333.6233.

(2) An application for certification to operate a crisis stabilization unit must be submitted to the department in the manner prescribed by the department.

Sec. 975. (1) The department must issue a certification to an applicant who meets all the standards and requirements set forth by the department for certifying a crisis stabilization unit.

(2) A certification issued under this chapter is not transferable to another crisis stabilization unit for the purpose of facilitating a change in location or a change in the governing body.

Sec. 976. Each certified crisis stabilization unit must allow an authorized department representative to enter upon and inspect all of the premises for which a certification has been granted or applied for under this chapter.

Sec. 977. (1) The department may deny an application for certification under this chapter that does not meet all the standards and requirements set forth by the department for a crisis stabilization unit. The department may suspend or revoke a certification that has been issued under this chapter if an applicant or a certified crisis stabilization unit violates a provision of this chapter or a standard or requirement set forth by the department under this chapter.

(2) Before an order is entered denying a certification application or suspending or revoking a certification previously granted, the applicant or party with a certification must have an opportunity for a hearing. A hearing under this section is subject to the provisions governing a contested case under the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.

Sec. 978. A crisis stabilization unit certified under this chapter is exempt from the requirement of obtaining a certificate of need.

Sec. 979. A crisis stabilization unit must obtain and maintain accreditation from 1 of the following within 3 years after initial certification or within 3 years after the effective date of the amendatory act that added this chapter:

(a) Behavioral health care accreditation for crisis stabilization from the Joint Commission on Accreditation of Healthcare Organizations.

(b) Behavioral health accreditation for crisis stabilization by the Commission on Accreditation of Rehabilitation Facilities, CARF International.

(c) Accreditation from an organization with similar standards as the organizations described in subdivisions (a) and (b) that is approved by the director.