Promoting, Dignity, Equality and Self-Determination

Washington Protection & Advocacy System

This summer, the state’s Mental Health Division (MHD) completed a months-long process of revising their existing regulations. The result is a new chapter of the Washington Administrative Code: WAC 388-865.  This new chapter replaces three old chapters of regulations: community mental health (WAC 275-57), inpatient (WAC 265-55), and children’s inpatient (WAC 275-54). The regulations went into effect on June 30, 2001.

Advocacy has been important in shaping these regulations. The final regulations are substantially different from the original draft, developed last fall by Mental Health Division staff. These differences reflect comments made by stakeholders who were involved in the process. These stakeholders included providers of mental health services, Regional Support Network (RSN) staff, mental health consumers and family members, and other advocates.

WPAS actively participated in the process of revising these regulations. We worked to make changes which would improve consumer access to independent advocacy and improve the quality of services. WPAS also sought changes which would help consumers and providers understand and respect consumer rights. The changes in the regulations are a mixed bag. There are some improvements, but they still have a ways to go.

The old regulations contained very limited references to the Ombuds programs. The new regulations greatly expand the description of the Ombuds service.

One subject of particular interest for mental health consumers and advocates is the subject of Ombuds independence. One term which has come into use to describe Ombuds and QRT is "functionally independent". The term "functional independence" did not appear in the old regulations or in the original Medicaid Waiver. It was introduced into the RSN-MHD contracts, and appeared in later renewal waivers. "Functional independence" also appeared in the final draft of these new regulations, but was removed in response to stakeholder comment. As a result, the new regulations carry over the same language regarding independence found in the old regulations. RSNs are required to "maintain the independence of the Ombuds service as set forth in this section and in the agreement between the mental health division and the regional support network." The section also specifies that the Ombuds service must be "independent of service providers".

The reference to QRT independence in the new regulations is similar to the old language, but contains additional language which mirrors the Ombuds section. The RSN "must assure that quality review teams...(f)airly and independently review the performance of the regional support network and service providers." The new added language requires that the RSN "maintain the independence of a quality review team as set forth in this section and in the agreement between mental health division and the regional support network".

Like the old regulation, the new regulations refer to the RSN-MHD "agreement" (contract) as a source for detail on the Ombuds and QRT programs. The old regulation contained a requirement that "representatives of consumer and family advocate organizations" be included when the contract terms regarding Ombuds and QRT were revised. This language was originally removed from the draft regulations, but as a result of stakeholder comment it was restored. However, the language was restored only in the Ombuds section. This means that no such consultation need be made when RSN-MHD contract language relating to QRT is revised.

The new regulation requires that the Ombuds be a consumer or family member. The old regulation was silent on this point. The new regulation also incorporates many of the assurances currently found in the waiver and the RSN-MHD contracts.

The new regulation states that the QRT "must include current consumers of the mental health system, past consumers or family members." The new regulation provides additional detail regarding the tasks which the QRT must perform, incorporating language currently found in the RSN-MHD contracts and the waiver, and includes assurances regarding QRT access to provider sites and consumers. The new regulation doesn’t specifically bar the participation of providers in the QRT.

By federal law, mental health consumers are entitled to file a grievance if they are denied eligibility, or services are reduced, suspended or terminated, and they must be informed of this right. Additionally, if the consumer requests that the benefits be continued, they can’t be cut off until there’s been a hearing. The new regulations state this right - a right which is protected by federal law - in contrast to the old regulations, which failed to mention it. However, the new regulations don’t state all aspects of the federal requirement. For example, federal law states that the notice of the right to appeal must be in writing, and must state the reason for the denial. These requirements were not spelled out in the new regulation.

This right to appeal loss or change of benefits, and to keep them going until there has been a hearing, is basic, and can prevent unjust service disruption. It applies to any reduction in services. For example, it applies where a consumer’s case management hours are reduced. It also applies where a consumer’s treatment services are suspended, or completely cut. However, this consumer right is not well known among providers and advocates - or consumers. The fact that it now appears in the text of the regulations is an improvement.

The new regulation provides more detail regarding the consumer grievance process. The new regulation:

The new grievance process changes are potentially very important. The old regulation was interpreted as restricting issues which a consumer could take to fair hearing to a short list: eligibility, medical necessity, and enrollment or disenrollment. The new regulation greatly expands the list of potential fair hearing issues.

The new regulations describe the quality management (QM) process in some detail, and require that information created by the Ombuds and QRT should be incorporated into the QM plan (WAC 388-865-0280).

The language which relates Ombuds and QRT to the Quality Management process is very close to the language in the current RSN-MHD contracts. Therefore, it presumably doesn’t represent a change in practice.

The regulation carries over a consumer notice requirement from the old regulations. Providers must post a notice of rights at their agency, and must inform each consumer of the list of rights at the time the consumer enrolls for service. This list was expanded in the new regulations to include four additional rights. Every consumer must now be informed of these additional rights:

1. the right to be a research subject only in accordance with DSHS rules;
2. the right to make an advance directive, stating your choices and preferences regarding physical and mental health treatment;
3. the right to appeal any denial, termination, suspension, or reduction of services and to continue to receive services at least until an appeal is heard by a fair hearing judge;
4. the right to receive all medically necessary services, and the right to a second opinion where there is disagreement with the provider about the need.

Unfortunately, the requirement that the rights be "posted" on a wall or other prominent place isn’t the best way to inform consumers of their rights. The requirement that consumers be told of these rights at the time they enroll for service doesn’t go far enough, either. However, the expanded list of rights can still be helpful to consumers. Mental Health Ombuds commonly post a list of the rights on their brochures, so the expanded list will be get additional circulation in that fashion. Also, Ombuds refer to the list when they are advocating for consumers.

During the time these new regulations were being written, WPAS argued that consumers should get notice of these rights at least once each year. Each consumer could be told of the rights at the time he or she completes an individualized treatment plan. Fortunately, advocates will have a chance to push for improved notice to consumers of their rights when the regulations are reopened, next year.

Regulatory Review - It’s going to be an annual thing now

One major improvement is that the regulations will be reviewed more frequently in the future.  

The revision of the regulations this year was in response to an order from the governor. In 1997, Governor Locke ordered all state agencies to make their regulations more readable, and to reduce the duplications and unnecessary requirements. Prior to this summer’s changes, the Community Mental Health Regulations were last revised over seven years ago - in 1993-1994. However, the Mental Health Division has indicated that it will review its regulations annually in the future.

This is very important news for advocates. It means that every year there will be an opportunity to get rid of regulations which aren’t needed and change ones that don’t work. There will also be a chance to add regulations, if needed to end abuses, or to implement new programs or ideas.

The down side of this annual review is that it means advocates need to be "on the ball" looking for potentially troublesome changes with increased frequency. Reviewing regulations is a tedious, complex, and unexciting task - but the potential positive and negative results can be very significant.

WPAS will be monitoring the revision of the regulations next year. We have started the process of identifying changes we would like to propose. If you have suggestions for changes, or individual experiences which demonstrate the need for a change, let us know.

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Washington Protection & Advocacy System
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