Amendment #727 to H3900

Addressing Behavioral Health Workforce Challenges

Ms. Decker of Cambridge moves to amend the bill by adding the following sections:

SECTION XX. Chapter 123 of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by striking out section 12, and inserting in place thereof the following section:-

Section 12. (a) A physician who is licensed pursuant to section 2 of chapter 112, an advanced practice registered nurse authorized to practice as such under regulations promulgated pursuant to section 80B of said chapter 112, a qualified psychologist licensed pursuant to sections 118 to 129, inclusive, of said chapter 112 or a licensed independent clinical social worker licensed pursuant to sections 130 to 137, inclusive, of said chapter 112 or a qualified physician assistant licensed pursuant to section 9(e) of chapter 112, who, after examining a person, has reason to believe that failure to hospitalize such person would create a likelihood of serious harm by reason of mental illness may restrain or authorize the restraint of such person and apply for the hospitalization of such person for a 3-day period at a public facility or at a private facility authorized for such purposes by the department. If an examination is not possible because of the emergency nature of the case and because of the refusal of the person to consent to such examination, the physician, qualified psychologist, qualified advanced practice registered nurse, qualified physician assistant, or licensed independent clinical social worker on the basis of the facts and circumstances may determine that hospitalization is necessary and may therefore apply. In an emergency situation, if a physician, qualified psychologist, qualified advanced practice registered nurse, qualified physician assistant or licensed independent clinical social worker is not available, a police officer who believes that failure to hospitalize a person would create a likelihood of serious harm by reason of mental illness may restrain such person and apply for the hospitalization of such person for a 3-day period at a public facility or a private facility authorized for such purpose by the department. An application for hospitalization shall state the reasons for the restraint of such person and any other relevant information that may assist the admitting physician or qualified advanced practice registered nurse or qualified physician assistant. Whenever practicable, prior to transporting such person, the applicant shall telephone or otherwise communicate with a facility to describe the circumstances and known clinical history and to determine whether the facility is the proper facility to receive such person and to give notice of any restraint to be used and to determine whether such restraint is necessary.

(b) Only if the application for hospitalization under this section is made by a physician, a qualified advanced practice registered nurse or qualified physician assistant specifically designated to have the authority to admit to a facility in accordance with the regulations of the department, shall such person be admitted to the facility immediately after reception. If the application is made by someone other than a designated physician, a qualified advanced practice registered nurse, or a qualified physician assistant such person shall be given a psychiatric examination by a designated physician, a qualified advanced practice registered nurse or qualified physician assistant immediately after reception at such facility. If the physician, qualified advanced practice registered nurse, or qualified physician assistant determines that failure to hospitalize such person would create a likelihood of serious harm by reason of mental illness, the physician or qualified advanced practice registered nurse or qualified physician assistant may admit such person to the facility for care and treatment. Upon admission of a person under this subsection, the facility shall inform the person that it shall, upon such person's request, notify the committee for public counsel services of the name and location of the person admitted. The committee for public counsel services shall immediately appoint an attorney who shall meet with the person. If the appointed attorney determines that the person voluntarily and knowingly waives the right to be represented, is presently represented or will be represented by another attorney, the appointed attorney shall so notify the committee for public counsel services, which shall withdraw the appointment.

Any person admitted under this subsection who has reason to believe that such admission is the result of an abuse or misuse of this subsection may request or request through counsel an emergency hearing in the district court in whose jurisdiction the facility is located and unless a delay is requested by the person or through counsel, the district court shall hold such hearing on the day the request is filed with the court or not later than the next business day.

(c) No person shall be admitted to a facility under this section unless the person, or the person’s parent or legal guardian on the person’s behalf, is given an opportunity to apply for voluntary admission under paragraph (a) of section 10 and unless the person, or the person’s parent or legal guardian, has been informed that: (i) the person has a right to such voluntary admission; and (ii) the period of hospitalization under this section cannot exceed 3 days. At any time during such period of hospitalization, the superintendent may discharge such person if the superintendent determines that such person is not in need of care and treatment.

(d) A person shall be discharged at the end of the 3-day period unless the superintendent applies for a commitment under sections 7 and 8 or the person remains on a voluntary status.

(e) Any person may make an application to a district court justice or a justice of the juvenile court department for a 3-day commitment to a facility of a person with a mental illness if the failure to confine said person would cause a likelihood of serious harm. The court shall appoint counsel to represent said person. After hearing such evidence as the court may consider sufficient, a district court justice or a justice of the juvenile court department may issue a warrant for the apprehension and appearance before the court of the alleged person with a mental illness if in the court’s judgment the condition or conduct of such person makes such action necessary or proper. Following apprehension, the court shall have the person examined by a physician, a qualified advanced practice registered nurse or a qualified physician assistant designated to have the authority to admit to a facility or examined by a qualified psychologist in accordance with the regulations of the department. If the physician, qualified advanced practice registered nurse, qualified physician assistant or qualified psychologist reports that the failure to hospitalize the person would create a likelihood of serious harm by reason of mental illness, the court may order the person committed to a facility for a period not to exceed 3 days; provided, however, that the superintendent may discharge said person at any time within the 3-day period. The periods of time prescribed or allowed under this section shall be computed pursuant to Rule 6 of the Massachusetts Rules of Civil Procedure.

SECTION XX. Said chapter 123 is hereby further amended by striking out section 21, as so appearing, and inserting in place thereof the following section:-

Section 21. Any person who transports a person with a mental illness to or from a facility for any purpose authorized under this chapter shall not use any restraint that is unnecessary for the safety of the person being transported or other persons likely to come in contact with the person.

In the case of persons being hospitalized under section 6, the applicant shall authorize practicable and safe means of transport including, where appropriate, departmental or police transport.

Restraint of a person with a mental illness may only be used in cases of emergency, such as the occurrence of, or serious threat of, extreme violence, personal injury or attempted suicide; provided, however, that written authorization for such restraint is given by the superintendent or director of the facility or by a physician, or by a qualified advanced practice registered nurse or qualified physician assistant designated by the superintendent or director for this purpose who is present at the time of the emergency or if the superintendent, director, designated physician, designated qualified advanced practice registered nurse or designated qualified physician assistant  is not present at the time of the emergency, non-chemical means of restraint may be used for a period of not more than 1 hour; provided further, that within 1 hour the person in restraint shall be examined by the superintendent, director, designated physician, designated qualified advanced practice registered nurse, or designated qualified physician assistant,; and provided further, that if the examination has not occurred within 1 hour, the patient may be restrained for an additional period of not more than 1 hour until such examination is conducted and the superintendent, director, designated physician, designated qualified advanced practice registered nurse, or designated qualified physician assistant shall attach to the restraint form a written report as to why the examination was not completed by the end of the first hour of restraint.

Any minor placed in restraint shall be examined within 15 minutes of the order for restraint by a physician, qualified advanced practice registered nurse, or qualified physician assistant, or, if a physician, qualified advanced practice registered nurse or qualified physician assistant is not available, by a registered nurse; provided, however, that said minor shall be examined by a physician, qualified advanced practice registered nurse or qualified physician assistant within 1 hour of the order for restraint. A physician, qualified advanced practice registered nurse or qualified physician assistant, or, if a physician, qualified advanced practice registered nurse or qualified physician assistant are not available, a registered nurse shall review the restraint order by personal examination of the minor or consultation with ward staff attending the minor every hour thereafter.

No minor shall be secluded for more than 2 hours in any 24-hour period; provided, however, that no such seclusion of a minor may occur except in a facility with authority to use such seclusion after said facility has been inspected and specially certified by the department. The department shall issue regulations establishing procedures by which a facility may be specially certified with authority to seclude a minor. Such regulations shall provide for review and approval or disapproval by the commissioner of a biannual application by the facility, which shall include: (i) a comprehensive statement of the facility’s policies and procedures for the utilization and monitoring of restraint of minors including a statistical analysis of the facility’s actual use of such restraint; and (ii) a certification by the facility of its ability and intent to comply with all applicable statutes and regulations regarding physical space, staff training, staff authorization, record keeping, monitoring and other requirements for the use of restraints.

Any use of restraint on a minor exceeding 1 hour in any 24-hour period shall be reviewed within 2 working days by the director of the facility. The director shall forward a copy of the report on each such instance of restraint to the human rights committee of that facility and, if there is no human rights committee, to the appropriate body designated by the commissioner of mental health. The director shall also compile a record of every instance of restraint in the facility and shall forward a copy of said report on a monthly basis to the human rights committee or the body designated by the commissioner of mental health.

No order for restraint for an individual shall be valid for a period of more than 3 hours beyond which time it may be renewed upon personal examination by the superintendent, director, designated physician, designated qualified advanced practice registered nurse, or qualified physician assistant or, for adults, by a registered nurse; provided, however, that no adult shall be restrained for more than 6 hours beyond which time an order may be renewed only upon personal examination by a physician, qualified advanced practice registered nurse or qualified physician assistant. The reason for the original use of restraint, the reason for its continuation after each renewal and the reason for its cessation shall be noted upon the restraining form by the superintendent, director, designated physician, qualified physician assistant, or, when applicable, by the registered nurse, certified physician, qualified advanced practice registered nurse assistant at the time of each occurrence.

When a designated physician, qualified advanced practice registered nurse, or qualified physician assistant is not present at the time and site of the emergency, an order for chemical restraint may be issued by a designated physician, qualified advanced practice registered nurse, or qualified physician assistant who has determined, after telephone consultation with a physician, qualified advanced practice registered nurse, registered nurse, or qualified physician assistant, who is present at the time and site of the emergency and who has personally examined the patient, that such chemical restraint is the least restrictive, most appropriate alternative available; provided, however, that the medication so ordered has been previously authorized as part of the individual’s current treatment plan.

No person shall be kept in restraint without a person in attendance specially trained to understand, assist and afford therapy to the person in restraint. The person may be in attendance immediately outside the room in full view of the patient when an individual is being secluded without mechanical restraint; provided, however, that in emergency situations when a person specially trained is not available, an adult may be kept in restraint unattended for a period not to exceed 2 hours. In that event, the person kept in restraints shall be observed at least every 5 minutes; provided, further, that the superintendent, director, designated physician, designated qualified advanced practice registered nurse or designated physician assistant shall attach to the restraint form a written report as to why the specially trained attendant was not available. The maintenance of any adult in restraint for more than 8 hours in any 24-hour period shall be authorized by the superintendent or director or the person specifically designated to act in the absence of the superintendent or director; provided, however, that when such restraint is authorized in the absence of the superintendent or director, such authorization shall be reviewed by the superintendent or director upon the return of the superintendent or director.

No “P.R.N.” or “as required” authorization of restraint may be written. No restraint is authorized except as specified in this section in any public or private facility for the care and treatment of mentally ill persons including Bridgewater state hospital.

Not later than 24 hours after the period of restraint, a copy of the restraint form shall be delivered to the person who was in restraint. A place shall be provided on the form or on attachments thereto for the person to comment on the circumstances leading to the use of restraint and on the manner of restraint used.

A copy of the restraint form and any such attachments shall become part of the chart of the patient. Copies of all restraint forms and attachments shall be sent to the commissioner of mental health, or, with respect to Bridgewater state hospital to the commissioner of correction, who shall review and sign them within 30 days and statistical records shall be kept thereof for each facility, including Bridgewater state hospital, and each designated physician, qualified advanced practice registered nurse or qualified physician assistant. Furthermore, such reports, excluding personally identifiable patient identification, shall be made available to the general public at the department’s central office, or, with respect to Bridgewater state hospital at the department of correction’s central office.

Responsibility and liability for the implementation of this section shall rest with the department, the superintendent or director of each facility or the physician, qualified advanced practice registered nurse or qualified physician assistant designated by such superintendent or director for this purpose.

SECTION XX. Said chapter 123 is hereby further amended by striking out section 22, as so appearing, and inserting in place thereof the following section:-

Section 22. Physicians, qualified advanced practice registered nurses, qualified physician assistant, qualified psychologists, qualified psychiatric nurse mental health clinical specialists, police officers and licensed independent clinical social workers shall be immune from civil suits for damages for restraining, transporting, applying for the admission of or admitting any person to a facility or Bridgewater state hospital if the physician, qualified advanced practice registered nurse, or qualified physician assistant, qualified psychologist, qualified psychiatric nurse mental health clinical specialist, police officer or licensed independent clinical social workers acts in accordance with this chapter.”

Additional co-sponsor(s) added to Amendment #727 to H3900

Addressing Behavioral Health Workforce Challenges