Hawaii State Hospital

Transitions HSH to a psychiatric rehabilitation facility.
Authorizes the director of health to privatize HSH's current
functions. (HB1663 CD1)

HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 2
TWENTIETH LEGISLATURE, 1999                                S.D. 2
STATE OF HAWAII                                            C.D. 1

                     A BILL FOR AN ACT



 1      SECTION 1.   In 1991 the United States Department of Justice
 2 filed suit against the State of Hawaii in the United States
 3 District Court for the District of Hawaii for violations of the
 4 constitutional rights of patients at the Hawaii state hospital
 5 (HSH).  The suit was brought under the authority of the Civil
 6 Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C.
 7 section 1997 et seq.  Concurrently, the State of Hawaii and the
 8 United States entered into a settlement agreement to correct the
 9 deficiencies at HSH, and the settlement agreement became an order
10 of the federal court.  In January, 1995, the United States
11 District Court found the State in contempt of court for failure
12 to achieve important requirements.
13      Under court order, the United States and the State of Hawaii
14 negotiated a stipulation and a detailed remedial plan designed to
15 solve these problems.  In part to address the problems caused by
16 inadequate staffing, the stipulation and plan included measures
17 to provide appropriate services in the community for HSH patients
18 who did not require hospital-level care but whose only barrier to
19 discharge was lack of an appropriate community placement. 

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 1      At a status conference on February 1, 1999, the United
 2 States District Court stated that HSH is still "grossly out of
 3 compliance" with significant requirements of its orders, most
 4 notably the requirement that the State provide adequate treatment
 5 and treatment planning for all HSH patients.  The court ordered
 6 that the State of Hawaii and the United States Department of
 7 Justice, through a five-member compliance committee, jointly
 8 identify and implement solutions to all outstanding issues of
 9 material significance for compliance, and that by June 15, 1999,
10 the State "shall have in place programs designed to rectify each
11 and every one of the material issues identified necessary to
12 bring the facilities and services into compliance with the
13 requirements of the court orders by December 20, 1999."  The
14 court has also stated that unless the State takes corrective
15 action in accordance with the compliance committee's plans by
16 December 20, 1999, the court will appoint a special master to
17 assume control of the hospital and the State's mental health
18 programs and services and to take all necessary corrective
19 action, all at the State's expense.
20      To avoid this drastic and very costly outcome and to
21 maintain control of its services and facilities, the State must
22 decisively address the needs of its people with serious mental
23 illness who are hospitalized at HSH and those who may require

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 1 hospitalization in the future.  The State must bring its services
 2 into conformance with standards of best practice consistent with
 3 the national trend toward providing a continuum of care in a
 4 variety of settings.  From the perspective of both cost control
 5 and quality of service, it is clear both from the experience of
 6 other jurisdictions and from HSH's own struggles that the best
 7 approach is to provide certain necessary services through public
 8 or private providers in the community.  Studies further find that
 9 most persons with mental illness should remain in their
10 communities because treatment is usually most effective in
11 community settings.  
12      The department of health must reconfigure the functions of
13 the current HSH within a comprehensive community-based program of
14 mental health treatment, rehabilitation, and housing services,
15 including appropriately secure settings for those who remain a
16 danger to others.  The heightened level of acuity and services
17 needed by individuals hospitalized at HSH and by individuals who
18 otherwise would be admitted to the hospital are appropriately
19 provided through public or private contracts in the community.
20 Because the private sector is already capable of furnishing some
21 care that meets the standards required by CRIPA, it makes sense
22 for the State to avail itself of those services.  In this manner,
23 the State may avoid both losing control over its mental health

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 1 services system and incurring the considerable and uncontrollable
 2 expense of a federally-appointed master.
 3      The purpose of this Act is to:
 4      (1)  Transition HSH to a secure psychiatric rehabilitation
 5           facility for individuals who require intensive
 6           therapeutic treatment and rehabilitation, including
 7           appropriate acute care services;
 8      (2)  Authorize the director of health to privatize functions
 9           currently performed at HSH as appropriate to the
10           clinical needs of the population served in the least
11           restrictive setting; and
12      (3)  Authorize the department of health to provide for
13           comprehensive community-based programs and services for
14           individuals discharged from HSH in accordance with this
15           Act or individuals who might otherwise have been
16           admitted to HSH.  These programs, services, and
17           individuals shall be reviewed and monitored by the
18           department of health.
19      SECTION 2.   Chapter 334, Hawaii Revised Statutes, is
20 amended by adding a new section to be appropriately designated
21 and to read as follows:
22      "334-A  Contracts for facilities and services.  (a)  The
23 director may contract with any person for:

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 1      (1)  The development or operation of private in-state
 2           psychiatric facilities;
 3      (2)  The placement of patients in existing private or public
 4           psychiatric facilities; and
 5      (3)  The provision of:
 6           (A)  Secure psychiatric rehabilitation services;
 7           (B)  Crisis intervention and stabilization services;
 8           (C)  Intensive treatment and wraparound services;
 9           (D)  Diversion services;
10           (E)  Special treatment facilities or therapeutic living
11                programs as defined in section 334-1;
12           (F)  Case management services;
13           (G)  Housing services; and
14           (H)  Other mental health treatment and rehabilitation
15                services.
16      (b)  The department may operate or contract for a secure
17 psychiatric rehabilitation program for individuals who require
18 intensive therapeutic treatment and rehabilitation in a secure
19 setting.  The services authorized by this section shall be for
20 persons:
21      (1)  Involuntarily hospitalized under this chapter for whom
22           the services cannot be reimbursed, covered, or provided
23           by an insurer, plan, or other person;

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 1      (2)  Committed to the custody of the director under chapter
 2           704; and
 3      (3)  Appropriately hospitalized under chapter 704 or 706.
 4      The director shall be responsible for the appropriate
 5 placement of all persons placed in facilities or services
 6 contracted for or operated by the director under paragraphs (1)
 7 through (3).
 8      Any such person placed in a facility or services contracted
 9 for or operated by the director who leaves or remains away from
10 the facility or services, without permission, may be apprehended
11 and returned to the facility or services by any employee of the
12 department or by any police officer without any warrant or
13 further proceeding.
14      (c)  The department shall:
15      (1)  See that patients who receive services under contract
16           or provided directly by the department pursuant to
17           subsection (a) receive the care and treatment for which
18           the department has contracted or for which appropriate
19           services are provided directly by the department;
20      (2)  Make periodic reviews of the records of each person
21           committed to the director's custody or hospitalized
22           pursuant to this chapter, chapter 704, or chapter 706;

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 1      (3)  In suitable cases, discharge or place on authorized
 2           absence persons committed to the director's custody or
 3           hospitalized pursuant to this chapter, chapter 704, or
 4           chapter 706; and
 5      (4)  Keep a medical record of each person committed to the
 6           director's custody or hospitalized pursuant to this
 7           chapter, chapter 704, or chapter 706."
 8      SECTION 3.  Section 334-3, Hawaii Revised Statutes, is
 9 amended by amending subsection (a) to read as follows:  
10      "(a)  The department of health within the limits of
11 available funds within the designated programs, shall promote and
12 provide for the establishment and operation of a community-based
13 mental health system responsive to the needs of persons of all
14 ages, ethnic groups, and geographical areas of the State,
15 reflective of an appropriate distribution of resources and
16 services, and monitored and evaluated in terms of standards, goal
17 attainment, and outcomes.  The elements of the system shall be
18 defined by departmental rules recognizing the need for at least
19 the following services:
20      (1)  Informational and educational services to the general
21           public and to lay and professional groups;
22      (2)  Collaborative and cooperative services with public and
23           private agencies and groups for the prevention and

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 1           treatment of mental or emotional disorders and
 2           substance abuse and rehabilitation of patients;
 3      (3)  Consultation services to the judiciary, to educational
 4           institutions, and to health and welfare agencies;
 5      (4)  Case management, outreach, and follow-up services;
 6      (5)  Emergency crisis and noncrisis intervention services
 7           accessible to residents of all service areas;
 8      (6)  Community-based, relevant, and responsive outpatient
 9           services;
10      (7)  Community residential care comprising a comprehensive
11           range of small, homelike, and appropriately staffed
12           treatment and rehabilitation facilities;
13      (8)  Short-term psychiatric [hospitalization] treatment,
14           preferably in facilities where access to other health
15           and medical services are readily available;
16      (9)  Intensive psychiatric [hospitalization] treatment for
17           patients in need of long-term, highly structured, or
18           highly specialized care and treatment under section
19           334-A, and provision of appropriate community
20           resources;
21     (10)  Training programs, activities, and staffing standards
22           for the major mental health disciplines and ancillary
23           services; and

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 1     (11)  Rehabilitative services for hospital and community-
 2           based individuals who have experienced short- or long-
 3           term mental or emotional disorders and substance
 4           abuse."
 5     SECTION 4.  Section 334-4, Hawaii Revised Statutes, is
 6 amended to read as follows:
 7      "334-4  Personnel for mental health program.  The director
 8 shall appoint professional and nonprofessional staff as the
 9 director deems necessary to carry out the state mental health
10 program and for which appropriations are available.  Positions
11 for psychiatrists are exempted from chapters 76 and 77.  The
12 director may employ psychiatrists as needed by the department on
13 a contractual basis, subject to the approval of the governor.
14 The director may appoint an administrator, three associate
15 [hospital] administrators, a director of psychosocial
16 rehabilitation, a chief of the department of nursing, a risk
17 manager, a patients' rights advisor, and a facilities plant
18 engineer for the state hospital or a secure psychiatric
19 rehabilitation facility established pursuant to [section 334-31]
20 this chapter and these positions shall be exempt from chapters 76
21 and 77."
22     SECTION 5.  Section 334-6, Hawaii Revised Statutes, is
23 amended by amending subsection (b) to read as follows:

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 1     "(b)  Every person hospitalized at a psychiatric facility or
 2 receiving treatment services through a community mental health
 3 center under the jurisdiction of the State or a county, or at a
 4 psychiatric facility or through a community mental health center
 5 which derives more than fifty per cent of its revenues from the
 6 general fund of the State, or pursuant to contract with the
 7 director under section 334-A, shall be liable for the expenses
 8 attending their reception, maintenance, and treatment and any
 9 property not exempt from execution belonging to the person shall
10 be subject to sequestration for the payment of the expenses.
11 Every parent or legal guardian of a patient who is a minor and
12 every spouse or reciprocal beneficiary of a patient shall be
13 liable for the expenses attending the reception, maintenance, and
14 treatment of that minor child or spouse or reciprocal beneficiary
15 who is hospitalized at a psychiatric facility or receiving
16 treatment through a community mental health center under the
17 jurisdiction of the State or a county, or at a psychiatric
18 facility or through a community mental health center which
19 derives more than fifty per cent of its revenues from the general
20 fund of the State[.], or pursuant to contract with the director
21 under section 334-A."
22     SECTION 6.  Section 334-74, Hawaii Revised Statutes, is
23 amended to read as follows:

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 1     "334-74  Transfer of residents of correctional facilities.
 2 If any resident of a state correctional facility is in need of
 3 [hospital] acute psychiatric treatment for [a primary diagnosis
 4 of] mental illness, the director of public safety or the officer
 5 in charge of the correctional facility may file with the director
 6 [of health] an application for the transfer of the resident to
 7 [the state hospital,] a facility operated by the department of
 8 health or at which the director of health contracts for services,
 9 together with the certificate of a psychiatrist or psychologist
10 employed by [either] the department [of health, or the department
11 of public safety] showing the need for [hospital] such treatment,
12 and, upon approval of the application by the director [of
13 health], the official having custody of the resident shall
14 transfer the resident to the [state hospital] facility operated
15 by the department or at which the director contracts for care and
16 treatment.  The official effecting the transfer of the resident
17 shall keep the [administrator of the state hospital] director
18 informed of the maximum period of commitment of the resident to
19 the director of public safety, and, if the continued
20 [hospitalization] care of the resident beyond the expiration of
21 the period is deemed necessary, the [administrator of the state
22 hospital] director shall institute the [admission] procedures
23 required to detain the resident as a patient notwithstanding the

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 1 resident's release from the state correctional facility; provided
 2 that a judicial hearing pursuant to sections 334-60.2 to 334-60.7
 3 be held by the same circuit court that sentenced the resident.
 4 In the event that discharge from the [hospital] facility operated
 5 by the department or at which the director contracts for services
 6 occurs before the expiration of the maximum period of commitment
 7 or confinement, the resident shall be returned to the appropriate
 8 state correctional facility.
 9     As used in this section, "resident" means any person serving
10 a sentence in a state correctional facility or any child or minor
11 detained in a state correctional facility."
12     SECTION 7.  Section 334-103, Hawaii Revised Statutes, is
13 amended to read as follows:
14     "334-103  Program elements.  The following shall be the
15 program elements of the system.  These shall be designed to
16 provide, at every level, alternatives to institutional settings.
17 Applicants applying to operate program elements shall show how
18 each of these elements works with the current programs in the
19 community the facility will serve.  Applicants may apply for
20 operation under the following program elements:
21     (1)   A short-term crisis residential alternative to
22           hospitalization for individuals experiencing an acute
23           episode or situational crisis.  The program shall be

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 1           available for admissions twenty-four hours a day, seven
 2           days a week.  The primary focus of this element shall
 3           be on reduction of the crisis, stabilization,
 4           diagnostic evaluation, and assessment of the person's
 5           existing support system, including recommendations for
 6           referrals upon discharge.  This service in the program
 7           shall be designed for persons who would otherwise be
 8           referred to an acute inpatient psychiatric unit;
 9     (2)   A long-term residential treatment program for clients
10           who would otherwise be living marginally in the
11           community with little or no service support, and who
12           would return many times to the hospital for treatment.
13           It also will serve those who are referred to, and
14           maintained in, state [hospitals] facilities or nursing
15           homes, or private or public facilities or programs
16           under contract with the director pursuant to section
17           334-A, because they require long-term, intensive
18           support.  This service shall be designed to provide a
19           rehabilitation program for the so-called "chronic"
20           patient who needs long-term support in order to develop
21           independent living skills.  This program goes beyond
22           maintenance to provide an active rehabilitation focus
23           for these individuals;

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 1     (3)   A transitional residential program designed for persons
 2           who are able to take part in programs in the general
 3           community, but who, without the support of counseling,
 4           as well as the therapeutic community, would be at risk
 5           of returning to the hospital.  These programs may
 6           employ a variety of staffing patterns and are for
 7           persons who are expected to move toward a more
 8           independent living setting.  The clients shall be
 9           expected to play a major role in the functioning of the
10           household, and shall be encouraged to accept increasing
11           levels of responsibility, both in the residential
12           community, and in the community as [[]a[]] whole.
13           Residents are required to be involved in daytime
14           activities outside of the facility which are relevant
15           to their personal goals and conducive to their
16           achieving more self-sufficiency; or
17     (4)   A semisupervised, independent, but structured living
18           arrangement for persons who do not need the intensive
19           support of the system elements of paragraph (1), (2),
20           or (3), but who, without some support and structure,
21           are at risk of requiring hospitalization.  The small
22           cooperative housing units shall function as independent
23           households with direct linkages to staff support in

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 1           case of emergencies, as well as for regular assessment
 2           and evaluation meetings.  Individuals may use satellite
 3           housing as a transition to independent living, or may
 4           remain in this setting indefinitely in order to avoid
 5           the need for more intensive settings.  This element is
 6           for persons who only need minimum professional or
 7           paraprofessional support in order to live in the
 8           community.  These units should be as normative as the
 9           general living arrangements in the communities in which
10           they are developed."
11     SECTION 8.  Chapter 334, part III, Hawaii Revised Statutes,
12 is repealed.
13     SECTION 9.  Any permanent employee of the department of
14 health who is not exempt from civil service under section 76-16,
15 Hawaii Revised Statutes, and who is transferred to a new or
16 different position because of a contract made by the director of
17 health pursuant to the authority conferred by section 2 of this
18 Act, shall be a "covered employee" under part IV of Act 230,
19 Session Laws of Hawaii 1998, and may elect to participate in any
20 applicable voluntary severance package offered by the State.  In
21 the event such an employee obtains continued employment in
22 another position, the employee, position, and appropriated salary
23 may be transferred to another department or another program
24 within the department of health.

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 1     SECTION 10.  All appropriations heretofore made to or held by
 2 the department of health to compensate an employee transferred to
 3 another department or to another program of the department of
 4 health, shall be transferred to the program or department to
 5 which the employee is transferred.
 6     SECTION 11.  In codifying the new section added to chapter
 7 334, Hawaii Revised Statutes, by section 2 of this Act, the
 8 Revisor of Statutes shall substitute the appropriate section
 9 number for the letter used in the section designation of the Act.
10     SECTION 12.  Statutory material to be repealed is bracketed.
11 New statutory material is underscored. 
12     SECTION 13.  This Act shall take effect upon its approval;
13 provided that section 8 shall take effect on July 1, 2000.