Rhode Island 2023 Regular Session

Rhode Island Senate Bill S0723 Compare Versions

Version 1 (Old)

Version 2 (New)

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5		-	2023 -- S 0723 SUBSTITUTE A ~~AS AMENDED~~
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7	7		LC002292/SUB A
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9	9		S TATE OF RHODE IS LAND
10	10		IN GENERAL ASSEMBLY
11	11		JANUARY SESSION, A.D. 2023
12	12		____________
13	13
14	14		A N A C T
15	15		RELATING TO BEHAVIORAL HEALTHCARE, DEVELOPM ENTAL DISABILITIES AND
16	16		HOSPITALS -- MENTAL HEALTH LAW
17	17		Introduced By: Senators DiMario, Miller, Lawson, and Lauria
18	18		Date Introduced: March 22, 2023
19	19		Referred To: Senate Health & Human Services
20	20		(Dept. of BHDDH)
21	21
22	22		It is enacted by the General Assembly as follows:
23	23		SECTION 1. Sections 40.1-5-2, 40.1-5-5, 40.1-5-7, 40.1-5-8, 40.1-5-9, 40.1-5-10 and 1
24	24		40.1-5-11 of the General Laws in Chapter 40.1-5 entitled "Mental Health Law" are hereby amended 2
25	25		to read as follows: 3
26	26		40.1-5-2. Definitions. 4
27	27		Whenever used in this chapter, or in any order, rule, or regulation made or promulgated 5
28	28		pursuant to this chapter, or in any printed forms prepared by the department or the director, unless 6
29	29		otherwise expressly stated, or unless the context or subject matter otherwise requires: 7
30	30		(1) “Advanced practice registered nurse” (APRN). For the purposes of this chapter, 8
31	31		advanced practice registered nurse (APRN) is the title given to an individual licensed to practice 9
32	32		advanced practice registered nursing within one of the following roles: certified nurse practitioner 10
33	33		(CNP) as defined under § 5-34-3 or certified clinical nurse specialist as defined under § 5-34-3 who 11
34	34		functions in the population focus of psychiatric/mental health as defined under § 5-34-3(12)(vi) 12
35	35		and whose scope of practice is defined under §§ 5-34-3(1), 5-34-3(2) and 5-34-3(15). 13
36	36		(1)(2) “Alternatives to admission or certification” means alternatives to a particular facility 14
37	37		or treatment program, and shall include, but not be limited to, voluntary or court-ordered outpatient 15
38	38		treatment, day treatment in a hospital, night treatment in a hospital, placement in the custody of a 16
39	39		friend or relative, placement in a nursing home, referral to a community mental health clinic and 17
40	40		home health aide services, or any other services that may be deemed appropriate. 18
41	41
42	42
43	43		LC002292/SUB A - Page 2 of 18
44	44		(2)(3) “Care and treatment” means psychiatric care, together with such medical, nursing, 1
45	45		psychological, social, rehabilitative, and maintenance services as may be required by a patient in 2
46	46		association with the psychiatric care provided pursuant to an individualized treatment plan recorded 3
47	47		in the patient’s medical record. 4
48	48		(3)(4) “Department” means the state department of behavioral healthcare, developmental 5
49	49		disabilities and hospitals. 6
50	50		(4)(5) “Director” means the director of the state department of behavioral healthcare, 7
51	51		developmental disabilities and hospitals. 8
52	52		(5)(i)(6) “Facility” means, but is not limited to, any public or private hospital licensed by 9
53	53		the Rhode Island department of health that maintains staff and facilities, including inpatient units, 10
54	54		for the care and treatment of persons with psychiatric illness, psychiatric disorders, and/or 11
55	55		psychiatric disabilities; and in and/or a community mental health center as defined in § 40.1-8.5-2. 12
56	56		In order to operate pursuant to the Mental Health Act Law as codified in this chapter, such facility 13
57	57		and/or inpatient unit must be approved by the director of the department of behavioral healthcare, 14
58	58		developmental disabilities and hospitals upon application of such facility and/or inpatient unit, and 15
59	59		any of the several community mental health services established pursuant to chapter 8.5 of this title. 16
60	60		The process and criteria for approval to operate pursuant to the Mental Health Law as codified in 17
61	61		this chapter shall be determined by the director. Nothing contained herein shall be construed to 18
62	62		amend or repeal any of the provisions of chapter 16 of title 23. 19
63	63		(ii) The Eleanor Slater hospital shall be required to apply to the department for approval 20
64	64		from the director to operate pursuant to this chapter. 21
65	65		(iii) The Rhode Island state psychiatric hospital shall be required to apply to the department 22
66	66		for approval from the director to operate pursuant to this chapter. 23
67	67		(6)(7) “Indigent person” means a person who has not sufficient property or income to 24
68	68		support himself or herself, and to support the members of his or her family dependent upon him or 25
69	69		her for support, and/or is unable to pay the fees and costs incurred pursuant to any legal proceedings 26
70	70		conducted under the provisions of this chapter. 27
71	71		(7)(8) “Likelihood of serious harm” means: 28
72	72		(i) A substantial risk of physical harm to the person himself or herself as manifested by 29
73	73		behavior evidencing serious threats of, or attempts at, suicide; 30
74	74		(ii) A substantial risk of physical harm to other persons as manifested by behavior or threats 31
75	75		evidencing homicidal or other violent behavior; or 32
76	76		(iii) A substantial risk of physical harm to the mentally disabled person as manifested by 33
77	77		behavior that has created a grave, clear, and present risk to the person’s physical health and safety. 34
78	78
79	79
80	80		LC002292/SUB A - Page 3 of 18
81	81		(iv) In determining whether there exists a likelihood of serious harm, the physician and the 1
82	82		court may consider previous acts, diagnosis, words, or thoughts of the patient. If a patient has been 2
83	83		incarcerated, or institutionalized, or in a controlled environment of any kind, the court may give 3
84	84		great weight to such prior acts, diagnosis, words, or thoughts. 4
85	85		(8)(9) “Mental health professional” means a psychiatrist, psychologist, or social worker 5
86	86		and such other persons, including psychiatric nurse clinicians clinician and licensed advanced 6
87	87		practice registered nurse (APRN) as defined in § 40.1-5-2, as may be defined by rules and 7
88	88		regulations promulgated by the director. 8
89	89		(9)(10) “NICS database” means the National Instant Criminal Background Check System 9
90	90		as created pursuant to section 103(b) of the Brady Handgun Violence Prevention Act (Brady Act), 10
91	91		Pub. L. No. 103-159, 107 Stat. 1536 as established by 28 C.F.R. 25.1. 11
92	92		(10)(11) “Patient” means a person admitted voluntarily, certified or re-certified admitted 12
93	93		to a facility according to the provisions of this chapter. 13
94	94		(11)(12) “Physician” means a person licensed by the Rhode Island department of health to 14
95	95		practice medicine pursuant to chapter 37 of title 5. 15
96	96		(12)(13) “Psychiatric disability” means a mental disorder in which the capacity of a person 16
97	97		to exercise self-control or judgment in the conduct of the person’s affairs and social relations, or to 17
98	98		care for the person’s own personal needs, is significantly impaired. 18
99	99		(13)(14) “Psychiatric nurse clinician” means a professional registered nurse with a master’s 19
100	100		degree in psychiatric nursing or related field who is licensed by the Rhode Island department of 20
101	101		health pursuant to chapter 34 of title 5 and who is currently working in the mental health field as 21
102	102		defined by the American Nurses Association, and/or a licensed advanced practice registered nurse 22
103	103		with a population focus of psychiatric/mental health population focus as defined in paragraphs (2) 23
104	104		and (12)(vi) of § 5-34-3 (APRN) as defined in § 40.1-5-2. 24
105	105		(14)(15) “Psychiatrist” means a person licensed by the Rhode Island department of health 25
106	106		to practice medicine pursuant to chapter 37 of title 5 who has, in addition, completed three (3) years 26
107	107		of graduate psychiatric training in a program approved by the American Medical Association or 27
108	108		American Osteopathic Association. 28
109	109		(15)(16) “Psychologist” means a person licensed by the Rhode Island department of health 29
110	110		pursuant to chapter 44 of title 5. 30
111	111		(17) “Qualified mental health professional” (QMHP) means a mental health professional 31
112		-	~~as defined in §40.1-5-2(9) and~~ as approved by the licensing unit within the department, ~~and who~~ 32
113		-	~~has~~ a ~~minimum of thirty (30) hours of supervised face-to-face emergency services experience~~ as a 33
114		-	~~psychiatric emergency service worker~~ in ~~Rhode Island~~. ~~Such experience may be gained through~~ 34
	112	+	as approved by the licensing unit within the department, who has a minimum of a master’s degree 32
	113	+	in a clinical practice, a license as a registered nurse, or a license as an advanced practice registered 33
	114	+	nurse (APRN) as defined in § 40.1-5-2 and who has a minimum of thirty (30) hours of supervised 34
115	115
116	116
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118		-	~~employment with : (i)~~ A ~~community mental health center (CMHC) which is conducting~~ emergency 1
119		-	~~psychiatric assessments for individuals under consideration for admission to an inpatient~~ mental 2
120		-	~~health facility;~~ or ~~(ii) A~~ licensed hospital ~~which is~~ conducting emergency psychiatric assessment 3
121		-	~~for individuals~~ under consideration for admission to an inpatient mental health facility. 4
	118	+	face-to-face emergency services experience as a psychiatric emergency service worker in Rhode 1
	119	+	Island. Such experience may be gained through employment with a community mental health 2
	120	+	center (CMHC) or licensed hospital conducting emergency psychiatric assessment for individua ls 3
	121	+	under consideration for admission to an inpatient mental health facility. 4
122	122		(16)(18) “Social worker” means a person who has a masters or further advanced degree 5
123	123		from a school of social work, that is accredited by the council of social work education and who is 6
124	124		licensed by the Rhode Island department of health pursuant to chapter 39.1 of title 5. 7
125	125		40.1-5-5. Admission of patients generally — Rights of patients — Patients’ records — 8
126	126		Competence of patients. 9
127	127		(a) Admissions. Any person who is in need of care and treatment in a facility, as herein 10
128	128		defined, may be admitted or certified, received, and retained as a patient in a facility by complying 11
129	129		with any one of the following admission procedures applicable to the case: 12
130	130		(1) Voluntary admission. 13
131	131		(2) Emergency certification. 14
132	132		(3) Civil court certification. 15
133	133		(b) Forms. The director shall prescribe and furnish forms for use in admissions and patient 16
134	134		notification procedures under this chapter. 17
135	135		(c) Exclusions. No person with a psychiatric an intellectual and/or developmental 18
136	136		disability, or person under the influence of alcohol or drugs shall be certified to a facility, as herein 19
137	137		defined, solely by reason of that condition, unless the person also qualified for admission, or 20
138	138		certification, or recertification under the provisions of this chapter. 21
139	139		(d) Examining physician or licensed advanced practice registered nurse (APRN). For 22
140	140		purposes of certification, no examining physician or licensed advanced practice registered nurse 23
141	141		(APRN) as defined in § 40.1-5-2 shall be related by blood or marriage to the person who is applying 24
142	142		for the admission of another, or to the person who is the subject of the application; nor shall he or 25
143	143		she have any interest, contractually, testamentary, or otherwise (other than reasonable and proper 26
144	144		charges for professional services rendered), in or against the estate or assets of the person who is 27
145	145		the subject of the application; nor shall he or she be a manager, trustee, visitor, proprietor, officer, 28
146	146		stockholder, or have any pecuniary interest, directly or indirectly, or, except as otherwise herein 29
147	147		expressly provided, be a director, resident physician, or salaried physician, or licensed advanced 30
148	148		practice registered nurse (APRN) as defined in § 40.1-5-2 or employee in any facility to which it 31
149	149		is proposed to admit the person. 32
150	150		(e) Certificates. Certificates, as required by this chapter, must provide a factual 33
151	151		description of the person’s behavior that indicates that the person concerned is psychiatrically 34
152	152
153	153
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155	155		disabled, creates a likelihood of serious harm, and is in need of care and treatment in a facility as 1
156	156		defined in this chapter. They shall further set forth such other findings as may be required by the 2
157	157		particular certification procedure used. Certificates shall also show that an examination of the 3
158	158		person concerned was made within five (5) days prior to the date of admission or certification, 4
159	159		unless otherwise herein provided. The date of the certificate shall be the date of the commencement 5
160	160		of the examination, and in the event examinations are conducted separately or over a period of 6
161	161		days, then the five-day (5) period above referred to (unless otherwise expressly provided) shall be 7
162	162		measured from the date of the commencement of the first examination. All certificates shall contain 8
163	163		the observations upon which judgments are based, and shall contain other information as the 9
164	164		director may by rule or regulation require. 10
165	165		(f) Rights of patients. No patient admitted or certified to any facility under any provision 11
166	166		of this chapter shall be deprived of any constitutional, civil, or legal right, solely by reason of such 12
167	167		admission or certification nor shall the certification or admission modify or vary any constitutional 13
168	168		or civil right, including, but not limited to, the right or rights: 14
169	169		(1) To privacy and dignity; 15
170	170		(2) To civil service or merit rating or ranking and appointment; 16
171	171		(3) Relating to the granting, forfeiture or denial of a license, permit, privilege, or benefit 17
172	172		pursuant to any law; 18
173	173		(4) To religious freedom; 19
174	174		(5) To be visited privately at all reasonable times by his or her personal physician, attorney, 20
175	175		and clergyperson, and by other persons at all reasonable times unless the official in charge of the 21
176	176		facility determines either that a visit by any of the other persons or a particular visitation time would 22
177	177		not be in the best interests of the patient and he or she incorporates a statement for any denial of 23
178	178		visiting rights in the individualized treatment record of the patient; 24
179	179		(6) To be provided with stationery, writing materials, and postage in reasonable amounts 25
180	180		and to have free unrestricted, unopened, and uncensored use of the mails for letters; 26
181	181		(7) To wear one’s own clothes, keep and use personal possessions, including toilet articles; 27
182	182		to keep and be allowed to spend a reasonable sum of money for canteen expenses and small 28
183	183		purchases; to have access to individual storage space for the person’s private use; and reasonable 29
184	184		access to telephones to make and receive confidential calls; provided, however, that any of these 30
185	185		rights may be denied for good cause by the official in charge of a facility or a physician designated 31
186	186		by him or her. A statement of the reasons for any denial shall be entered in the individualized 32
187	187		treatment record of the patient; 33
188	188		(8) To seek independent psychiatric examination and opinion from a psychiatrist or mental 34
189	189
190	190
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192	192		health professional of the patient’s choice; 1
193	193		(9) To be employed at a gainful occupation insofar as the patient’s condition permits, 2
194	194		provided however, that no patient shall be required to perform labor; 3
195	195		(10) To vote and participate in political activity; 4
196	196		(11) To receive and read literature; 5
197	197		(12) To have the least possible restraint imposed upon the person consistent with affording 6
198	198		him or her the care and treatment necessary and appropriate to the patient’s condition; 7
199	199		(13) To have access to the mental health advocate upon request; 8
200	200		(14) To prevent release of his or her name to the advocate or next of kin by signing a form 9
201	201		provided to all patients for that purpose at the time of admission; 10
202	202		(15) To reasonable access to outdoor space with appropriate supervision as clinically 11
203	203		warranted, for individuals who have been hospitalized for thirty (30) consecutive calendar days. If 12
204	204		such access has been denied, a statement of the reasons for denial shall be entered in the 13
205	205		individualized treatment record of the patient after the first denial, which shall be reviewed and 14
206	206		documented at least weekly by the treatment team. 15
207	207		(g) Records. A facility shall maintain for each patient admitted pursuant to this chapter, a 16
208	208		comprehensive medical record. The record shall contain a recorded, individualized treatment plan, 17
209	209		which shall at least monthly be reviewed by the physician of the facility who is chiefly responsible 18
210	210		for the patient’s care, notations of the reviews to be entered in the record. The records shall also 19
211	211		contain information indicating at the time of admission or certification what alternatives to 20
212	212		admission or certification are available to the patient; what alternatives have been investigated; and 21
213	213		why the investigated alternatives were not deemed suitable. The medical record shall further 22
214	214		contain other information as the director may by rule or regulation require. 23
215	215		(h) Competence. A person shall not, solely by reason of the person’s admission or 24
216	216		certification to a facility for examination or care and treatment under the provisions of this chapter, 25
217	217		thereby be deemed incompetent to manage the person’s affairs; to contract; to hold or seek a 26
218	218		professional, occupational, or vehicle operator’s license; to make a will; or for any other purpose. 27
219	219		Neither shall any requirement be made, by rule, regulation, or otherwise, as a condition to 28
220	220		admission and retention, that any person applying for admission shall have the legal capacity to 29
221	221		contract, it being sufficient for the purpose, that the person understand the nature and consequence 30
222	222		of making the application. 31
223	223		40.1-5-7. Emergency certification. 32
224	224		(a) Applicants. 33
225	225		(1) Any physician or licensed advanced practice registered nurse (APRN) as defined in § 34
226	226
227	227
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229	229		40.1-5-2 who, after examining a person, has reason to believe that the person is in need of 1
230	230		immediate care and treatment, and is one whose continued unsupervised presence in the community 2
231	231		would create an imminent likelihood of serious harm by reason of psychiatric disability, may apply 3
232	232		at to a facility for the emergency certification of the person thereto. The medical director, or any 4
233	233		other physician, or a licensed advanced practice registered nurse (APRN) as defined in § 40.1-5-2 5
234	234		employed by the proposed facility for certification, may apply under this subsection if no other 6
235	235		physician or licensed advanced practice registered nurse (APRN) as defined in § 40.1-5-2 is 7
236	236		available and the medical director or physician certifies this fact. If an examination is not possible 8
237	237		because of the emergency nature of the case and because of the refusal of the person to consent to 9
238	238		the examination, the applicant on the basis of his or her observation may determine, in accordance 10
239	239		with the above, that emergency certification is necessary and may apply therefor. In the event that 11
240	240		no physician or licensed advanced practice registered nurse (APRN) as defined in § 40.1-5-2 is 12
241	241		available, a qualified mental health professional as defined herein who believes the person to be in 13
242	242		need of immediate care and treatment, and one whose continued unsupervised presence in the 14
243	243		community would create an imminent likelihood of serious harm by reason of psychiatric disability, 15
244	244		may make the application for emergency certification to a facility. Application shall in all cases be 16
245	245		made to the facility that, in the judgment of the applicant at the time of application, would impose 17
246	246		the least restraint on the liberty of the person consistent with affording the person the care and 18
247	247		treatment necessary and appropriate to the person’s condition. 19
248	248		(2) Whenever an applicant who is not employed by a community mental health center 20
249	249		established pursuant to chapter 8.5 of this title, has reason to believe that either the Rhode Island 21
250	250		state psychiatric hospital or the Eleanor Slater hospital is the appropriate facility for the person, the 22
251	251		application shall be directed to the community mental health center that serves the area in which 23
252	252		the person resides, if the person is a Rhode Island resident, or the area in which the person is 24
253	253		physically present, if a nonresident, and the qualified mental health professional(s) at the center 25
254	254		shall make the final decision on the application to either the Rhode Island state psychiatric hospital 26
255	255		or the Eleanor Slater hospital or may determine whether some other disposition should be made. 27
256	256		(b) Applications. An application for certification hereunder shall be in writing and filed 28
257	257		with the facility to which admission is sought. The application shall be executed within five (5) 29
258	258		days prior to the date of filing and shall state that it is based upon a personal observation of the 30
259	259		prospective patient by the applicant within the five-day (5) period. It shall include a description of 31
260	260		the applicant’s credentials and the behavior that constitutes the basis for his or her judgment that 32
261	261		the prospective patient is in need of immediate care and treatment and that a likelihood of serious 33
262	262		harm by reason of psychiatric disability exists, and shall include, as well, any other relevant 34
263	263
264	264
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266	266		information that may assist the admitting physician and/or licensed advanced practice registered 1
267	267		nurse (APRN) as defined in § 40.1-5-2 at the facility to which application is made. The application 2
268	268		shall state whether the facility, in the judgment of the applicant at the time of application, would 3
269	269		impose the least restraint on the liberty of the person consistent with affording him or her the care 4
270	270		and treatment necessary and appropriate to his or her condition. Whenever practicable, prior to 5
271	271		transporting or arranging for the transporting of a prospective patient to a facility, the applicant 6
272	272		shall telephone or otherwise communicate with the facility to describe the circumstances and 7
273	273		known clinical history to determine whether it is the proper facility to receive the person, and to 8
274	274		give notice of any restraint to be used or to determine whether restraint is necessary. 9
275	275		(c) Confirmation; discharge; transfer. Within one hour after reception at a facility, the 10
276	276		person regarding whom an application has been filed under this section shall be seen by a physician 11
277	277		or licensed advanced practice registered nurse (APRN) as defined in § 40.1-5-2. As soon as 12
278	278		possible, but in no event later than twenty-four (24) hours after reception, a preliminary 13
279	279		examination and evaluation of the person by a psychiatrist, or a physician under the psychiatrist’s 14
280	280		supervision, and/or licensed advanced practice registered nurse (APRN) as defined in § 40.1-5-2 15
281	281		shall begin. The psychiatrist, physician under the supervision of the psychiatrist, and/or licensed 16
282	282		advanced practice registered nurse (APRN) as defined in § 40.1-5-2 conducting the preliminary 17
283	283		examination and evaluation shall not be an applicant hereunder. The preliminary examination and 18
284	284		evaluation shall be completed within seventy-two (72) hours from its inception by the psychiatrist, 19
285	285		physician under the supervision of the psychiatrist, and/or licensed advanced practice registered 20
286	286		nurse (APRN) as defined in § 40.1-5-2. If the psychiatrist, physician under the supervision of the 21
287	287		psychiatrist, and/or licensed advanced practice registered nurse (APRN) as defined in § 40.1-5-2 22
288	288		determines that the patient is not a candidate for emergency certification, the patient shall be 23
289	289		discharged. If the psychiatrist(s) psychiatrist, physician under the supervision of the psychiatrist, 24
290	290		and/or licensed advanced practice registered nurse (APRN) as defined in § 40.1-5-2 determines that 25
291	291		the person who is the subject of the application is in need of immediate care and treatment and is 26
292	292		one whose continued unsupervised presence in the community would create an imminent likelihood 27
293	293		of serious harm by reason of psychiatric disability, the psychiatrist, physician under the supervision 28
294	294		of the psychiatrist, and/or licensed advanced practice registered nurse (APRN) as defined in § 40.1-29
295	295		5-2 determines shall confirm the admission for care and treatment under this section of the person 30
296	296		to the facility, provided the facility is one that would impose the least restraint on the liberty of the 31
297	297		person consistent with affording the person the care and treatment necessary and appropriate to the 32
298	298		person’s condition and that no suitable alternatives to certification are available. If at any time the 33
299	299		official in charge of a facility, or the official’s designee, determines that the person is not in need 34
300	300
301	301
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303	303		of immediate care and treatment, or is not one whose continued unsupervised presence in the 1
304	304		community would create an imminent likelihood of serious harm by reason of psychiatric disability, 2
305	305		or suitable alternatives to certification are available, the official shall immediately discharge the 3
306	306		person. In addition, the official may arrange to transfer the person to an appropriate facility if the 4
307	307		facility to which he or she has been certified is not one that imposes the least restraint on the liberty 5
308	308		of the person consistent with affording him or her the care and treatment necessary and appropriate 6
309	309		to his or her condition. 7
310	310		(d) Custody. Upon the request of an applicant under this section, to be confirmed in 8
311	311		writing, it shall be the duty of any peace officer of this state or of any governmental subdivision 9
312	312		thereof to whom request has been made, to take into custody and immediately transport the person 10
313	313		to the designated facility for admission thereto. 11
314	314		(e) Ex parte court order. An applicant under this section may present a petition to any 12
315	315		judge of the district court or any justice of the family court, in the case of a person who is the subject 13
316	316		of an application who has not yet attained his or her eighteenth birthday, for a warrant directed to 14
317	317		any peace officer of the state or any governmental subdivision thereof to take into custody the 15
318	318		person who is the subject of the application and immediately transport the person to a designated 16
319	319		facility. The application shall set forth that the person who is to be certified is in need of immediate 17
320	320		care and treatment and the person’s continued unsupervised presence in the community would 18
321	321		create an imminent likelihood of serious harm by reason of psychiatric disability, and the reasons 19
322	322		why an order directing a peace officer to transport the person to a designated facility is necessary. 20
323	323		(f) Notification of rights. No person shall be certified to a facility under the provisions of 21
324	324		this section unless appropriate opportunity is given to apply for voluntary admission under the 22
325	325		provisions of § 40.1-5-6 and unless the person, or a parent, guardian, or next of kin, has been 23
326	326		informed, in writing, on a form provided by the department, by the official in charge of the facility: 24
327	327		(1) That he or she has a right to the voluntary admission; (2) That a person cannot be certified until 25
328	328		all available alternatives to certification have been investigated and determined to be unsuitable; 26
329	329		and (3) That the period of hospitalization or treatment in a facility cannot exceed ten (10) days 27
330	330		under this section, except as provided in subsection (g) of this section. 28
331	331		(g) Period of treatment. A person shall be discharged no later than ten (10) days measured 29
332	332		from the date of his or her admission under this section, unless an application for a civil court 30
333	333		certification has been filed and set down for a hearing under the provisions of § 40.1-5-8, or the 31
334	334		person remains as a voluntary patient pursuant to § 40.1-5-6. 32
335	335		40.1-5-8. Civil court certification. 33
336	336		(a) Petitions. A verified petition may be filed in the district court, or family court in the 34
337	337
338	338
339	339		LC002292/SUB A - Page 10 of 18
340	340		case of a person who has not reached his or her eighteenth (18th) birthday, for the certification to a 1
341	341		facility of any person who is alleged to be in need of care and treatment in a facility, and whose 2
342	342		continued unsupervised presence in the community would create a likelihood of serious harm by 3
343	343		reason of psychiatric disability. The petition may be filed by any person with whom the subject of 4
344	344		the petition may reside; or at whose house the person may be; or the father or mother, husband or 5
345	345		wife, brother or sister, or the adult child of the person; the nearest relative if none of the above are 6
346	346		available; or the person’s guardian; or the attorney general; or a local director of public welfare; or 7
347	347		the director of the department of behavioral healthcare, developmental disabilities and hospitals; 8
348	348		the director of the department of human services; or the director of the department of corrections; 9
349	349		the director of the department of health; the warden of the adult correctional institutions; or the 10
350	350		superintendent of the boys Rhode Island training school for youth, or his or her designated agent; 11
351	351		or the director of any facility, or the facility director’s designated agent of any of the foregoing 12
352	352		departments or facilities, whether or not the person shall have been admitted and is a patient at the 13
353	353		time of the petition. A petition under this section shall be filed only after the petitioner has 14
354	354		investigated what alternatives to certification are available and determined why the alternatives are 15
355	355		not deemed suitable. 16
356	356		(b) Contents of petition. The petition shall state that it is based upon a personal 17
357	357		observation of the person concerned by the petitioner within a ten-day (10) period prior to filing. It 18
358	358		shall include a description of the behavior that constitutes the basis for the petitioner’s judgment 19
359	359		that the person concerned is in need of care and treatment and that a likelihood of serious harm by 20
360	360		reason of psychiatric disability exists. In addition, the petitioner shall indicate what alternatives to 21
361	361		certification are available; what alternatives have been investigated; and why the investigated 22
362	362		alternatives are not deemed suitable. 23
363	363		(c) Certificates and contents thereof. A petition hereunder shall be accompanied by the 24
364	364		certificates of two (2) physicians, at least one of whom shall be a psychiatrist, or one physician and 25
365	365		one licensed advanced practice registered nurse (APRN) as defined in § 40.1-5-2, unless the 26
366	366		petitioner is unable to afford, or is otherwise unable to obtain, the services of a physician or 27
367	367		physicians or licensed advanced practice registered nurse (APRN) as defined in § 40.1-5-2 qualified 28
368	368		to make the certifications. The certificates shall be rendered pursuant to the provisions of § 40.1-5-29
369	369		5, except when the patient is a resident in a facility, the attending physician and one other physician 30
370	370		at least one of whom shall be a psychiatrist, or the attending physician and a licensed advanced 31
371	371		practice registered nurse (APRN) as defined in § 40.1-5-2 from the facility may sign the certificates, 32
372	372		and shall set forth that the prospective patient is in need of care and treatment in a facility and 33
373	373		would likely benefit therefrom, and is one whose continued unsupervised presence in the 34
374	374
375	375
376	376		LC002292/SUB A - Page 11 of 18
377	377		community would create a likelihood of serious harm by reason of psychiatric disability together 1
378	378		with the reasons therefor. The petitions and accompanying certificates shall be executed under 2
379	379		penalty of perjury, but shall not require the signature of a notary public thereon. 3
380	380		(d) Preliminary hearing. 4
381	381		(1) Upon a determination that the petition sets forth facts constituting reasonable grounds 5
382	382		to support certification, the court shall summon the person to appear before the court at a 6
383	383		preliminary hearing, scheduled no later than five (5) business days from the date of filing. This 7
384	384		hearing shall be treated as a priority on the court calendar and may be continued only for good 8
385	385		cause shown. In default of an appearance, the court may issue a warrant directing a police officer 9
386	386		to bring the person before the court. 10
387	387		(2) At the preliminary hearing, the court shall serve a copy of the petition upon the person 11
388	388		and advise the person of the nature of the proceedings and of the person’s right to counsel. If the 12
389	389		person is unable to afford counsel, the court forthwith shall appoint the mental health advocate for 13
390	390		him or her. If the court finds that there is no probable cause to support certification, the petition 14
391	391		shall be dismissed, and the person shall be discharged unless the person applies for voluntary 15
392	392		admission. However, if the court is satisfied by the testimony that there is probable cause to support 16
393	393		certification, a final hearing shall be held not less than seven (7) days, nor more than twenty-one 17
394	394		(21) days, after the preliminary hearing, unless continued at the request of counsel for the person, 18
395	395		and notice of the date set down for the hearing shall be served on the person. Copies of the petition 19
396	396		and notice of the date set down for the hearing shall also be served immediately upon the person’s 20
397	397		nearest relatives or legal guardian, if known, and to any other person designated by the patient, in 21
398	398		writing, to receive copies of notices. The preliminary hearing can be waived by a motion of the 22
399	399		patient to the court if the patient is a resident of a facility. 23
400	400		(e) Petition for examination. 24
401	401		(1) Upon motion of either the petitioner or the person, or upon its own motion, the court 25
402	402		may order that the person be examined by a psychiatrist appointed by the court. The examination 26
403	403		may be conducted on an outpatient basis and the person shall have the right to the presence of 27
404	404		counsel while it is being conducted. A report of the examination shall be furnished to the court, the 28
405	405		petitioner, and the person and his or her counsel at least forty-eight (48) hours prior to the hearing. 29
406	406		(2) If the petition is submitted without two (2) physicians’ certificates as required under 30
407	407		subsection (c), the petition shall be accompanied by a motion for a psychiatric examination to be 31
408	408		ordered by the court. The motion shall be heard on the date of the preliminary hearing set by the 32
409	409		court pursuant to subsection (d), or as soon thereafter as counsel for the subject person is engaged, 33
410	410		appointed, and ready to proceed. The motion shall be verified or accompanied by affidavits and 34
411	411
412	412
413	413		LC002292/SUB A - Page 12 of 18
414	414		shall set forth facts demonstrating the efforts made to secure examination and certification by a 1
415	415		physician or physicians pursuant to § 40.1-5-8(c) and shall indicate the reasons why the efforts 2
416	416		failed. 3
417	417		(3) After considering the motion and testimony as may be offered on the date of hearing 4
418	418		the motion, the court may deny the application and dismiss the petition, or upon finding: (i) That 5
419	419		there is a good cause for the failure to obtain one or more physician’s certificates in accordance 6
420	420		with subsection (c); and (ii) That there is probable cause to substantiate the allegations of the 7
421	421		petition, the court shall order an immediate examination by two (2) qualified psychiatrists, or by 8
422	422		one psychiatrist and one physician, or by one physician and one licensed advanced practice 9
423	423		registered nurse (APRN) as defined in § 40.1-5-2 pursuant to subsection (e)(1). 10
424	424		(f) Professional assistance. A person with respect to whom a court hearing has been 11
425	425		ordered under this section shall have, and be informed of, a right to employ a mental health 12
426	426		professional of the person’s choice to assist the person in connection with the hearing and to testify 13
427	427		on the person’s behalf. If the person cannot afford to engage such a professional, the court shall, 14
428	428		on application, allow a reasonable fee for the purpose. 15
429	429		(g) Procedure. Upon receipt of the required certificates and/or psychiatric reports as 16
430	430		applicable hereunder, the court shall schedule the petition for final hearing unless, upon review of 17
431	431		the reports and certificates, the court concludes that the certificates and reports do not indicate, with 18
432	432		supporting reasons, that the person who is the subject of the petition is in need of care and treatment; 19
433	433		that his or her unsupervised presence in the community would create a likelihood of serious harm 20
434	434		by reason of psychiatric disability; and that all alternatives to certification have been investigated 21
435	435		and are unsuitable, in which event the court may dismiss the petition. 22
436	436		(h) Venue. An application for certification under this section shall be made to, and all 23
437	437		proceedings pursuant thereto shall be conducted in, the district court, or family court in the case of 24
438	438		a person who has not yet reached his or her eighteenth (18th) birthday, of the division or county in 25
439	439		which the subject of an application may reside or may be, or when the person is already a patient 26
440	440		in a facility, in the district court or family court of the division or county in which the facility is 27
441	441		located, subject, however, to application by any interested party for change of venue because of 28
442	442		inconvenience of the parties or witnesses or the condition of the subject of the petition or other 29
443	443		valid judicial reason for the change of venue. 30
444	444		(i) Hearing. A hearing scheduled under this section shall be conducted pursuant to the 31
445	445		following requirements: 32
446	446		(1) All evidence shall be presented according to the usual rules of evidence that apply in 33
447	447		civil, non-jury cases. The subject of the proceedings shall have the right to present evidence in his 34
448	448
449	449
450	450		LC002292/SUB A - Page 13 of 18
451	451		or her own behalf and to cross examine all witnesses against him or her, including any physician 1
452	452		or licensed advanced practice registered nurse (APRN) as defined in § 40.1-5-2 who has completed 2
453	453		a certificate or filed a report as provided hereunder. The subject of the proceedings shall have the 3
454	454		further right to subpoena witnesses and documents, the cost of such to be borne by the court where 4
455	455		the court finds upon an application of the subject that the person cannot afford to pay for the cost 5
456	456		of subpoenaing witnesses and documents. The court shall utilize the generally applicable rules of 6
457	457		evidence for civil, non-jury cases to determine the admissibility of evidence at the hearing, 7
458	458		including the qualification and requirements for expert witnesses. The authority given to APRNs 8
459	459		to file petitions under this chapter shall not be determinative of their qualification as an expert 9
460	460		witness. 10
461	461		(2) A verbatim transcript or electronic recording shall be made of the hearing that shall be 11
462	462		impounded and obtained or examined only with the consent of the subject thereof (or in the case of 12
463	463		a person who has not yet attained his or her eighteenth (18th) birthday, the person’s parent, 13
464	464		guardian, or next of kin) or by order of the court. 14
465	465		(3) The hearing may be held at a location other than a court, including any facility where 15
466	466		the subject may currently be a patient, where it appears to the court that holding the hearing at 16
467	467		another location would be in the best interests of the subject thereof. 17
468	468		(4) The burden of proceeding and the burden of proof in a hearing held pursuant to this 18
469	469		section shall be upon the petitioner. The petitioner has the burden of demonstrating that the subject 19
470	470		of the hearing is in need of care and treatment in a facility; is one whose continued unsupervised 20
471	471		presence in the community would create a likelihood of serious harm by reason of psychiatric 21
472	472		disability; and what alternatives to certification are available, what alternatives to certification were 22
473	473		investigated, and why these alternatives were not deemed suitable. 23
474	474		(5) The court shall render a decision within forty-eight (48) hours after the hearing is 24
475	475		concluded. 25
476	476		(j) Order. If the court at a final hearing finds by clear and convincing evidence that the 26
477	477		subject of the hearing is in need of care and treatment in a facility, and is one whose continued 27
478	478		unsupervised presence in the community would, by reason of psychiatric disability, create a 28
479	479		likelihood of serious harm, and that all alternatives to certification have been investigated and 29
480	480		deemed unsuitable, it shall issue an order committing the person to the custody of the director for 30
481	481		care and treatment or to an appropriate facility. In either event, and to the extent practicable, the 31
482	482		person shall be cared for in a facility that imposes the least restraint upon the liberty of the person 32
483	483		consistent with affording the person the care and treatment necessary and appropriate to the 33
484	484		person’s condition. No certification shall be made under this section unless and until full 34
485	485
486	486
487	487		LC002292/SUB A - Page 14 of 18
488	488		consideration has been given by the certifying court to the alternatives to in-patient care, including, 1
489	489		but not limited to, a determination of the person’s relationship to the community and to the person’s 2
490	490		family; of his or her employment possibilities; and of all available community resources, alternate 3
491	491		available living arrangements, foster care, community residential facilities, nursing homes, and 4
492	492		other convalescent facilities. A certificate ordered pursuant to this section shall be valid for a period 5
493	493		of six (6) months from the date of the order. At the end of that period the patient shall be discharged, 6
494	494		unless the patient is discharged prior to that time, in which case the certification shall expire on the 7
495	495		date of the discharge. 8
496	496		(k) Appeals. 9
497	497		(1) A person certified under this section and/or a person with regard to whom a petition for 10
498	498		instructions is granted pursuant to § 40.1-5-8(l) shall have a right to appeal from a final hearing to 11
499	499		the supreme court of the state within thirty (30) days of the entry of an order of certification and/or 12
500	500		instructions. The person shall have the right to be represented on appeal by counsel of his or her 13
501	501		choice or by the mental health advocate if the supreme court finds that the person cannot afford to 14
502	502		retain counsel. Upon a showing of indigency, the supreme court shall permit an appeal to proceed 15
503	503		without payment of costs, and a copy of the transcript of the proceedings below shall be furnished 16
504	504		to the subject of the proceedings, or to the person’s attorney, at the expense of the state. The 17
505	505		certifying court hearing judge shall advise the person of all the person’s rights pursuant to this 18
506	506		section immediately upon the entry of an order of certification. 19
507	507		(2) Appeals under this section shall be given precedence, insofar as practicable, on the 20
508	508		supreme court dockets. The district and family courts shall promulgate rules with the approval of 21
509	509		the supreme court to insure the expeditious transmission of the record and transcript in all appeals 22
510	510		pursuant to this chapter. 23
511	511		(l) Submission to NICS database. 24
512	512		(1) The district court shall submit the name, date of birth, gender, race or ethnicity, and 25
513	513		date of civil commitment to the National Instant Criminal Background Check System (NICS) 26
514	514		database of all persons subject to a civil court certification order pursuant to this section within 27
515	515		forty-eight (48) hours of certification. 28
516	516		(2) Any person affected by the provisions of this section, after the lapse of a period of three 29
517	517		(3) years from the date such civil certification is terminated, shall have the right to appear before 30
518	518		the relief from disqualifiers board. 31
519	519		(3) Upon notice of a successful appeal pursuant to subsection (k), the district court shall, 32
520	520		as soon as practicable, cause the appellant’s record to be updated, corrected, modified, or removed 33
521	521		from any database maintained and made available to the NICS and reflect that the appellant is no 34
522	522
523	523
524	524		LC002292/SUB A - Page 15 of 18
525	525		longer subject to a firearms prohibition as it relates to 18 U.S.C. § 922(d)(4) and 18 U.S.C. § 1
526	526		922(g)(4). 2
527	527		(m) Equitable authority. (1) In addition to the powers heretofore exercised enumerated 3
528	528		in this section, the district and family courts are hereby empowered, in furtherance of their 4
529	529		jurisdiction under this chapter title including, but not limited to, chapters 5, 5.3 and/or 22 of title 5
530	530		40.1, to grant petitions for instructions for the provision or withholding of medical and/or 6
531	531		psychiatric treatment as justice and equity may require. 7
532	532		(2) In addition to the authority described in subsection (m)(1) of this section, the district 8
533	533		and family courts shall have authority to grant petitions for instructions for the provision or 9
534	534		withholding of medical and/or psychiatric treatment as justice and equity may require with regard 10
535	535		to: 11
536	536		(i) Persons who are detainees or inmates at the adult correctional institutions who have a 12
537	537		psychiatric disability; or 13
538	538		(ii) Who are residents of the Rhode Island training school for youth who have a psychiatric 14
539	539		disability. 15
540	540		(3) In order to grant relief under subsection (m)(1) or (m)(2) of this section, the hearing 16
541	541		judge shall find by clear and convincing evidence that: 17
542	542		(i) The person who is subject to the petition has a psychiatric or developmental and/or 18
543	543		intellectual disability; 19
544	544		(ii) The person who is subject to the petition is unable to provide or withhold informed 20
545	545		consent as to the treatment(s) prayed for in the petition; 21
546	546		(iii) The person who is subject to the petition does not have a known representative who 22
547	547		has the legal authority to provide or withhold informed consent on the person’s behalf; and 23
548	548		(iv) To a reasonable degree of medical certainty, the benefits of the proposed treatment(s) 24
549	549		outweigh the risks. 25
550	550		40.1-5-9. Right to treatment — Treatment plan. 26
551	551		(a) Any person who is a patient in a facility pursuant to this chapter shall have a right to 27
552	552		receive the care and treatment that is necessary for and appropriate to the condition for which he or 28
553	553		she was admitted or certified and from which he or she can reasonably be expected to benefit. Each 29
554	554		patient shall have an individualized treatment plan. This plan shall be developed by appropriate 30
555	555		mental health professionals, including a psychiatrist and/or licensed advanced practice registered 31
556	556		nurse (APRN) as defined in § 40.1-5-2, and implemented as soon as possible — in any event no 32
557	557		later than five (5) days after a patient’s voluntary admission or involuntary court certification. Each 33
558	558		individual treatment plan shall be made in accordance with the professional regulations of each 34
559	559
560	560
561	561		LC002292/SUB A - Page 16 of 18
562	562		facility, and by way of illustration and, not limited to the following, shall contain: 1
563	563		(1) A statement of the nature of the specific problems and specific needs of the patient; 2
564	564		(2) A statement of the least restrictive treatment conditions necessary to achieve the 3
565	565		purposes of certification or admission; 4
566	566		(3) A description of intermediate and long-range treatment goals; and 5
567	567		(4) A statement and rationale for the plan of treatment for achieving these intermediate and 6
568	568		long-range goals. 7
569	569		(b) The individualized treatment plan shall become part of the patient’s record in 8
570	570		accordance with § 40.1-5-5(g), and the subject of periodic review in accordance with § 40.1-5-10. 9
571	571		In implementing a treatment plan on behalf of any patient, the official in charge of any facility, or 10
572	572		his or her designee(s), may, when it is warranted, authorize the release of the patient for such 11
573	573		periods of time and under such terms and conditions that he or she deems appropriate. 12
574	574		40.1-5-10. Periodic institutional review proceedings. 13
575	575		(a) In general. Each patient admitted or certified to a facility pursuant to the provisions of 14
576	576		this chapter shall be the subject of a periodic review of his or her condition and status to be 15
577	577		conducted by a review committee composed of at least one psychiatrist, or licensed advanced 16
578	578		practice registered nurse (APRN) as defined in § 40.1-5-2, and other mental health professionals 17
579	579		involved in treating the patient. The committee shall be composed of no fewer than three (3) persons 18
580	580		and shall be appointed by the director of the facility or his or her designated agent. The reviews 19
581	581		shall minimally involve an evaluation of the quality of care the patient is receiving, including an 20
582	582		evaluation of the patient’s treatment plan, and the making of any recommendations for the 21
583	583		improvement of the care or for the revision of the treatment plan, including alternative available 22
584	584		living arrangements, foster care, community residential facilities, nursing homes, and other 23
585	585		convalescent facilities. At every fourth review, one member of the committee shall be a member of 24
586	586		the hospital’s facility's utilization review committee appointed by that committee’s chairperson. 25
587	587		(b) Frequency. The review proceedings shall take place at least once within each ninety-26
588	588		day (90) period during which a person is a patient in the facility. 27
589	589		(c) Results of review. The results of each review shall be entered in the patient’s medical 28
590	590		record, presented orally to the patient within twenty-four (24) hours, and confirmed by written 29
591	591		notice to the patient and his or her guardian, or with the patient’s consent, to his or her next of kin, 30
592	592		within seventy-two (72) hours. In the event the director of the facility is not a member of the 31
593	593		committee, the notice shall be transmitted to him or her as well. Where the committee determines 32
594	594		that further care in the facility is required, the notice to the patient shall include an explanation of 33
595	595		the patient’s rights to pursue discharge as elsewhere provided in this chapter. 34
596	596
597	597
598	598		LC002292/SUB A - Page 17 of 18
599	599		40.1-5-11. Discharge — Recertification. 1
600	600		(a) The official in charge of any facility, or his or her designated agent, on having his or 2
601	601		her reasons noted on the patient’s records, shall discharge any patient certified or admitted pursuant 3
602	602		to the provisions of this chapter, when: 4
603	603		(1) Suitable alternatives to certification or admission are available; 5
604	604		(2) The patient is, in the judgment of the official, recovered; 6
605	605		(3) The patient is not recovered, but discharge, in the judgment of the official, will not 7
606	606		create a likelihood of serious harm by reason of psychiatric disability. 8
607	607		(b) When a patient discharge is requested and if the discharge is denied, the reasons therefor 9
608	608		shall be stated, in writing, and noted in the patient’s record and a copy thereof shall be given to the 10
609	609		person applying for the release. 11
610	610		(c) At the expiration of the six-month (6) period set forth in § 40.1-5-8(j), or any subsequent 12
611	611		six-month (6) period following recertification pursuant to this section, the patient shall be 13
612	612		unconditionally released unless a recertification petition is filed by the official in charge of a 14
613	613		facility, or his or her designated agent, within no less than fifteen (15) days seven (7) and no more 15
614	614		than thirty (30) days prior to the scheduled expiration date of a six-month (6) period. A hearing 16
615	615		must be held pursuant to the petition and a decision rendered before the expiration of the six-month 17
616	616		(6) period. A recertification hearing shall follow all of the procedures set forth in § 40.1-5-8 and 18
617	617		recertification may be ordered only if the petitioner proves by clear and convincing evidence that 19
618	618		the conduct and responses of the patient during the course of the previous six-month (6) period 20
619	619		indicate that the patient is presently in need of care and treatment in a facility; is one whose 21
620	620		continued unsupervised presence in the community would create a likelihood of serious harm by 22
621	621		reason of psychiatric disability; and that all alternatives to recertification have been investigated 23
622	622		and deemed unsuitable. 24
623	623		SECTION 2. This act shall take effect upon passage. 25
624	624		========
625	625		LC002292/SUB A
626	626		========
627	627
628	628
629	629		LC002292/SUB A - Page 18 of 18
630	630		EXPLANATION
631	631		BY THE LEGISLATIVE COUNCIL
632	632		OF
633	633		A N A C T
634	634		RELATING TO BEHAVIORAL HEALTHCARE, DEVEL OPMENTAL DISABILITIES AND
635	635		HOSPITALS -- MENTAL HEALTH LAW
636	636		***
637	637		This act would include licensed advanced practice registered nurses (APRN), certified in 1
638	638		psychiatric/mental health, as qualified to certify the need for mental health treatment in certain 2
639	639		patients. 3
640	640		This act would take effect upon passage. 4
641	641		========
642	642		LC002292/SUB A
643	643		========
	644	+