REPORT TITLE:
MH Bill of Rights; Ombudsman


DESCRIPTION:
Establishes mental health patients' bill of rights; creates
independent office of ombudsman for mental health services;
requires ombudsman to assist and advocate for mental health
services for consumers; allows the ombudsman to accept federal
and private funds and grants.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
THE SENATE                              S.B. NO.870
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
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                   A  BILL  FOR  AN  ACT

RELATING TO MENTAL HEALTH.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Chapter 334, Hawaii Revised Statutes, is amended
 
 2 by adding a new part to be appropriately designated and to read
 
 3 as follows:
 
 4         "PART  .  OMBUDSMAN FOR MENTAL HEALTH SERVICES;
 
 5                     PATIENTS' BILL OF RIGHTS
 
 6      §334-A  Ombudsman for mental health services; created;
 
 7 appointment, tenure, qualifications, salary, vacancy.(a)  There
 
 8 is created an independent office of the ombudsman for mental
 
 9 health services, separate from the office of ombudsman
 
10 established under chapter 96, to be placed within the department
 
11 of health for administrative purposes only.
 
12      (b)  The governor, pursuant to chapter 26, shall appoint the
 
13 ombudsman for mental health services who shall serve for a period
 
14 of six years.  The ombudsman for mental health services may be
 
15 reappointed but may not serve for more than three terms.  No
 
16 person may serve as ombudsman for mental health services within
 
17 two years of the last day on which the person served as a member
 
18 of the legislature, or while the person is a candidate for or
 
19 holds any other state office, or while the person is engaged in
 
20 any other occupation for reward or profit.
 

 
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 1      (c)  The salary of the ombudsman for mental health services
 
 2 shall be $           and shall not be diminished during the
 
 3 ombudsman's term of office, unless by general law applying to all
 
 4 salaried officers of the State.
 
 5      (d)  If the ombudsman for mental health services dies,
 
 6 resigns, becomes ineligible to serve, or is removed or suspended
 
 7 from office, the governor shall fill the vacancy in accordance
 
 8 with chapter 26.
 
 9      §334-B Powers, duties, and responsibilities; grievance
 
10 process; rules.  (a)  The ombudsman for mental health services
 
11 shall assist and advocate on behalf of consumers of mental health
 
12 services who have complaints and grievances concerning services,
 
13 to ensure that the consumers of mental health services are
 
14 provided the protections afforded them under the mental health
 
15 services patients' bill of rights under section 334-C.  The
 
16 ombudsman for mental health services shall have the following
 
17 duties:
 
18      (1)  Receive consumer, family member, and other interested
 
19           party complaints and, with the consumer's consent,
 
20           assist in the resolution of complaints;
 
21      (2)  For the purposes of outreach and resolving complaints,
 
22           have access to consumers, service sites, and records
 
23           relating to the consumer; and
 

 
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 1      (3)  Intercede on behalf of consumers and family members
 
 2           and, at the consumer's request, in the complaint and
 
 3           grievance process.
 
 4      (b)  The ombudsman for mental health services shall have the
 
 5 power to:
 
 6      (1)  Compel at a specified time and place, by a subpoena,
 
 7           the appearance and sworn testimony of any person who
 
 8           the ombudsman reasonably believes may be able to give
 
 9           information relating to a matter under investigation;
 
10           and
 
11      (2)  Compel any person to produce documents, papers, or
 
12           objects which the ombudsman reasonably believes may
 
13           relate to a matter under investigation.  The ombudsman
 
14           may bring suit in an appropriate state court to enforce
 
15           these powers.
 
16      (c)  The ombudsman for mental health services shall have the
 
17 following general responsibilities:
 
18      (1)  Educate consumers on their rights and responsibilities
 
19           under the mental health services patients' bill of
 
20           rights;
 
21      (2)  Accept complaints and establish a timely grievance
 
22           procedure pursuant to subsection (d);
 
23      (3)  Assist consumers in accessing care, including:
 

 
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 1           (A)  Administrative matters, including, but not limited
 
 2                to, the resolution of questions concerning fees,
 
 3                methods of payment, insurance reimbursement,
 
 4                number of sessions, substitutions, cancellation of
 
 5                policies, access to patients records,
 
 6                confidentiality, or the mental health services
 
 7                provider's professional capabilities; and
 
 8           (B)  Medical matters, including, but not limited to,
 
 9                such issues as quality of services, types of
 
10                treatment, and the right to a second opinion;
 
11      (4)  Assist in the formal and informal mediation of
 
12           disputes; and
 
13      (5)  Prepare and submit an annual report to the legislature
 
14           identifying problems and progress in addressing these
 
15           problems.
 
16      (d)  The ombudsman for mental health services' staff shall:
 
17      (1)  Be accessible to all persons;
 
18      (2)  Involve other persons, at the consumer's request;
 
19      (3)  Assist consumers in the pursuit of informal resolution
 
20           of complaints;
 
21      (4)  If necessary, continue to assist the consumer through
 
22           the grievance and, if applicable, hearing processes;
 
23           and
 

 
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 1      (5)  Maintain confidentiality consistent with this chapter.
 
 2      (e)  The ombudsman for mental health services shall
 
 3 establish a culturally appropriate process for consumers to
 
 4 pursue grievances.  To this end, a consumer aggrieved by a
 
 5 decision of any mental health services provider shall have the
 
 6 right to a hearing under chapter 91.  The ombudsman shall
 
 7 establish a grievance process which:
 
 8      (1)  Is published and made known to consumers who are
 
 9           current or potential users of community mental health
 
10           services in a way that is readily understandable;
 
11      (2)  Gives consumers the opportunity to report grievances,
 
12           and have the grievances investigated and resolved
 
13           promptly;
 
14      (3)  Ensures against formal or informal retaliation;
 
15      (4)  Ensures the retention of full records of all grievances
 
16           in confidential files, separate from the grievant's
 
17           case records, for five years from completion of the
 
18           grievance process;
 
19      (5)  Ensures the availability of the ombudsman's staff to
 
20           assist grievants at all levels of the grievance and
 
21           hearing processes;
 
22      (6)  Ensures that the entire process, from the written
 
23           request for grievance up to the request for hearing,
 

 
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 1           shall not exceed thirty days;
 
 2      (7)  Allows the participation of other persons, at the
 
 3           grievant's choice; and
 
 4      (8)  Allows the grievant to request a hearing when the
 
 5           grievance concerns any administrative or medical
 
 6           matters under subsection (c)(3)(A) or (B) and when the:
 
 7           (A)  Grievance decision is adverse to the grievant;
 
 8           (B)  Any mental health services provider does not
 
 9                respond, in writing, within thirty days from the
 
10                date the grievant submitted the grievance in
 
11                writing; or
 
12           (C)  Any mental health services provider denies a
 
13                consumer urgently needed mental health services
 
14                and the consumer files a grievance in writing.
 
15      (f)  The ombudsman for mental health services shall adopt
 
16 rules pursuant to chapter 91 for the purposes of this section.
 
17      §334-C Mental health services patients' bill of rights.
 
18 The legislature finds that there is a need to empower consumers
 
19 of mental health services to be better informed in order to
 
20 optimize the benefits of any services they receive while at the
 
21 same time balancing demands for new consumer protections with the
 
22 cost of providing them.  Accordingly, the legislature declares
 
23 the following to be the mental health services patients' bill of
 

 
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 1 rights for all mental health services consumers in the State.
 
 2 Consumers of mental health services shall have a right to:
 
 3      (1)  Request and receive full information about the mental
 
 4           health services provider's professional capabilities,
 
 5           including licensure, education, training, experience,
 
 6           professional association membership, specialization,
 
 7           limitations, previous complaints, and any history of
 
 8           prior sanctions;
 
 9      (2)  Receive written information about fees, methods of
 
10           payments, insurance reimbursement, number of sessions,
 
11           substitutions (in cases of vacations and emergencies),
 
12           and cancellation of insurance policies before beginning
 
13           therapy or other mental health services;
 
14      (3)  Receive respectful treatment that will be helpful to
 
15           the patient;
 
16      (4)  A safe environment, free from sexual, physical, and
 
17           emotional abuse;
 
18      (5)  Ask questions about the patient's therapy or other
 
19           mental health services;
 
20      (6)  Refuse to answer any question or disclose any
 
21           information the patient chooses not to reveal;
 
22      (7)  Know the limits of confidentiality and the
 
23           circumstances under which a therapist or mental health
 

 
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 1           services provider is legally required to disclose
 
 2           information to others;
 
 3      (8)  Refuse a particular type of treatment or treatments
 
 4           without obligation or harassment;
 
 5      (9)  Refuse electronic recording of any communication
 
 6           between the patient and the therapist or other mental
 
 7           health services provider; provided that the patient
 
 8           shall have the right to request it;
 
 9     (10)  Request and, in most cases, receive a summary of the
 
10           patient's file, including diagnosis, of the patient's
 
11           progress and type of treatment;
 
12     (11)  Report unethical and illegal behavior by a therapist or
 
13           other mental health services provider;
 
14     (12)  Receive a second opinion at any time about the
 
15           patient's therapy or other mental health service or the
 
16           therapist's or other mental health services provider's
 
17           methods;
 
18     (13)  Request the transfer of a copy of the patient's file to
 
19           any therapist, other mental health services provider,
 
20           or agency the patient chooses; and
 
21     (14)  Request and receive services from the ombudsman for
 
22           mental health services.
 
23    §334-D Assistance; staff; delegation; funding.(a)  The
 

 
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 1 ombudsman for mental health services shall appoint any staff and
 
 2 employees as may be necessary to carry out this chapter.  All
 
 3 employees shall be hired by the ombudsman and shall serve at the
 
 4 ombudsman's pleasure.  In determining the salary of each such
 
 5 employee, the ombudsman shall consult with the department of
 
 6 human resources development and shall follow as closely as
 
 7 possible the recommendations of the department.  The ombudsman
 
 8 and the ombudsman's full-time staff shall be entitled to
 
 9 participate in any employee benefit plan generally available to
 
10 state employees.
 
11      (b)  The ombudsman for mental health services may delegate
 
12 to the ombudsman's appointees any of the ombudsman's duties.
 
13      (c)  To the greatest extent possible, the independent office
 
14 of the ombudsman for mental health services shall be funded
 
15 through federal or private grants or donations.
 
16      §334-E Confidentiality.  The ombudsman for mental health
 
17 services shall maintain secrecy in respect to all matters and the
 
18 identities of the complainants or witnesses coming before the
 
19 ombudsman except so far as disclosures may be necessary to enable
 
20 the ombudsman to carry out the ombudsman's duties and to support
 
21 the ombudsman's recommendations.
 
22      §334-F Judicial review; immunity.  No proceeding or
 
23 decision of the ombudsman for mental health services may be
 

 
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 1 reviewed in any court, unless it contravenes the provisions of
 
 2 this chapter.  The ombudsman has the same immunities from civil
 
 3 and criminal liability as a judge of this State.  The ombudsman
 
 4 and the ombudsman's staff shall not testify in any court with
 
 5 respect to matters coming to their attention in the exercise or
 
 6 purported exercise of their official duties except as may be
 
 7 necessary to enforce this chapter. 
 
 8      §334-G  Penalty for obstruction.  A person who knowingly
 
 9 hinders the lawful actions of the ombudsman for mental health
 
10 services or the ombudsman's staff, or knowingly refuses to comply
 
11 with their lawful demands, shall be fined not more than $1,000."
 
12      SECTION 2.  This Act does not affect rights and duties that
 
13 matured, penalties that were incurred, and proceedings that were
 
14 begun, before its effective date.
 
15      SECTION 3.  In codifying the new part added to chapter 334,
 
16 Hawaii Revised Statutes, by section 1 of this Act, the revisor of
 
17 statutes shall substitute appropriate section numbers for the
 
18 letters used in the new sections' designations in this Act.
 
19      SECTION 4.  This Act shall take effect upon its approval.
 
20 
 
21                           INTRODUCED BY:  _______________________