2003 Legislation
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SENATE BILL NO. 1076 – Child, mental health serv, examiner


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Daily Data Tracking History

S1076....................................................by HEALTH AND WELFARE
CHILDREN - MENTAL HEALTH SERVICES - Amends existing law to further define the
qualifications of a designated examiner for purposes of children's mental
health services.
02/06    Senate intro - 1st rdg - to printing
02/07    Rpt prt - to Health/Wel

Bill Text

  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-seventh Legislature                 First Regular Session - 2003
                                       IN THE SENATE
                                    SENATE BILL NO. 1076
                              BY HEALTH AND WELFARE COMMITTEE
  1                                        AN ACT
  8    Be It Enacted by the Legislature of the State of Idaho:
  9        SECTION  1.  That  Section 16-2403, Idaho Code, be, and the same is hereby
 10    amended to read as follows:
 11        16-2403.  DEFINITIONS. As used in this chapter:
 12        (1)  "Child" means an individual less than eighteen (18) years of age  and
 13    not emancipated by either marriage or legal proceeding.
 14        (2)  "Consistent  with  the least restrictive alternative principle" means
 15    that services are delivered in the setting which places  the  fewest  restric-
 16    tions on the personal liberty of the child, and provides the greatest integra-
 17    tion  with individuals who do not have disabilities, in typical and age appro-
 18    priate, school, community and family environments, which  is  consistent  with
 19    safe, effective and cost-effective treatment for the child and family.
 20        (3)  "Department" means the department of health and welfare.
 21        (4)  "Designated examiner" means a psychiatrist, psychologist, psychiatric
 22    nurse,  or  social worker and such other mental health professionals as may be
 23    designated in accordance with rules promulgated pursuant to the provisions  of
 24    chapter  52, title 67, Idaho Code, by the department of health and welfare has
 25    the meaning provided in section 66-317, Idaho Code.
 26        (5)  "Director" means the director of the state department of  health  and
 27    welfare.
 28        (6)  "Emergency" means a situation in which the child's condition, as evi-
 29    denced  by recent behavior, poses a significant threat to the health or safety
 30    of the child, his family or others, or poses a  serious  risk  of  substantial
 31    deterioration  in  the child's condition which cannot be eliminated by the use
 32    of supportive services or intervention  by  the  child's  parents,  or  mental
 33    health  professionals,  and treatment in the community while the child remains
 34    in his family home.
 35        (7)  "Informed consent to treatment" means a knowing and  voluntary  deci-
 36    sion to undergo a specific course of treatment, evidenced in writing, and made
 37    by  an emancipated child, or a child's parent, or guardian, who has the capac-
 38    ity to make an informed decision, after the staff of  the  facility  or  other
 39    provider  of  treatment  have explained the nature and effects of the proposed
 40    treatment.
 41        (8)  "Involuntary treatment" means treatment, services  and  placement  of
 42    children  provided without consent of the parent of a child, under the author-
 43    ity of a court order obtained pursuant to this  chapter,  as  directed  by  an
  1    order  of  disposition  issued  by  a designated employee of the department of
  2    health and welfare under section 16-2415, Idaho Code.
  3        (9)  "Lacks capacity to make an informed  decision  concerning  treatment"
  4    means that the parent is unable to understand the nature and effects of hospi-
  5    talization  or treatment, or is unable to engage in a rational decision-making
  6    process regarding such  hospitalization  or  treatment,  as  evidenced  by  an
  7    inability  to  weigh  the risks and benefits, despite conscientious efforts to
  8    explain them in terms that the parent can understand.
  9        (10) "Likely to cause harm to himself or to suffer substantial  mental  or
 10    physical  deterioration"  means  that,  as  evidenced  by recent behavior, the
 11    child:
 12        (a)  Is likely in the near future to inflict substantial  physical  injury
 13        upon himself; or
 14        (b)  Is  likely  to  suffer significant deprivation of basic needs such as
 15        food, clothing, shelter, health or safety; or
 16        (c)  Will suffer a substantial increase or persistence of symptoms of men-
 17        tal illness or serious emotional disturbance which is likely to result  in
 18        an  inability  to  function in the community without risk to his safety or
 19        well-being or the safety or well-being of  others,  and  which  cannot  be
 20        treated adequately with available home and community-based outpatient ser-
 21        vices.
 22        (11) "Likely  to  cause harm to others" means that, as evidenced by recent
 23    behavior causing, attempting, or threatening such harm with the apparent abil-
 24    ity to complete the act, a child is likely to cause physical injury or  physi-
 25    cal abuse to another person.
 26        (12) "Protection  and  advocacy system" means the agency designated by the
 27    governor as the state protection and advocacy system  pursuant  to  42  U.S.C.
 28    6042 and 42 U.S.C. 10801 et seq.
 29        (13) "Serious emotional disturbance" means an emotional or behavioral dis-
 30    order, or a neuropsychiatric condition  which results in a serious disability,
 31    and  which  requires sustained treatment interventions, and causes the child's
 32    functioning to be impaired in thought, perception, affect or behavior. A  dis-
 33    order  shall  be  considered  to "result in a serious disability" if it causes
 34    substantial impairment of functioning in family, school or community.  A  sub-
 35    stance abuse disorder does not, by itself, constitute a serious emotional dis-
 36    turbance, although it may coexist with serious emotional disturbance.
 37        (14) "Special therapy" means any treatment modality used to treat children
 38    with  serious  emotional disturbances which is subject to restrictions or spe-
 39    cial conditions imposed by the department of health and welfare rules.
 40        (15) "Surrogate parent" means any person appointed to act in the place  of
 41    the  parent of a child for purposes of developing an individual education pro-
 42    gram under the authority of the individuals with disabilities  education  act,
 43    20 U.S.C. 1400 et seq., as amended.
 44        (16) "Treatment  facility"  means a facility or program meeting applicable
 45    licensing standards, that has been approved for  the  provisions  of  services
 46    under this chapter by the department of health and welfare.
 47        SECTION  2.  That  Section  66-317, Idaho Code, be, and the same is hereby
 48    amended to read as follows:
 49        66-317.  DEFINITIONS. As used in this chapter, terms shall have  the  fol-
 50    lowing meanings:
 51        (a)  "Department  director"  means the director of the state department of
 52    health and welfare.
 53        (b)  "Voluntary patient" means an individual admitted to  a  facility  for
  1    evaluation  pursuant to section 18-211 or 20-520, Idaho Code, or admitted to a
  2    facility for treatment pursuant to section 66-318, Idaho Code.
  3        (c)  "Involuntary patient" means an individual committed pursuant to  sec-
  4    tion  18-212,  18-214, 66-329 or 66-1201, Idaho Code, or committed pursuant to
  5    section 16-1608 or 20-520, Idaho Code, and admitted  to  a  facility  for  the
  6    treatment of minors.
  7        (d)  "Licensed  physician"  means an individual licensed under the laws of
  8    this state to practice medicine or a medical officer of the government of  the
  9    United States while in this state in the performance of his official duties.
 10        (e)  "Designated  examiner"  means any person designated by the department
 11    director or designee, pursuant to department rules promulgated  in  accordance
 12    with  the  provisions of chapter 52, title 67, Idaho Code, as specially quali-
 13    fied by training and experience in the diagnosis and treatment  of  mental  or
 14    mentally related illnesses or conditions. Such persons shall be psychiatrists,
 15    licensed  psychologists,  licensed  physicians, a holder of an earned master's
 16    level or higher degree in social work from an accredited program, a registered
 17    nurse with an earned master's level or higher degree  in  psychiatric  nursing
 18    from  an accredited program, or a holder of an earned master's level or higher
 19    degree in psychology from an accredited program.
 20        (f)  "Dispositioner" means a designated examiner employed by or under con-
 21    tract with the department of health and welfare and designated by the  depart-
 22    ment  director to determine the appropriate location for care and treatment of
 23    involuntary patients.
 24        (g)  "Facility" means any public or private hospital, sanatorium, institu-
 25    tion, mental health center or other organization designated in accordance with
 26    rules adopted by the board of health and  welfare  as  equipped  to  initially
 27    hold, evaluate, rehabilitate or to provide care or treatment, or both, for the
 28    mentally ill.
 29        (h)  "Lacks capacity to make informed decisions about treatment" means the
 30    inability, by reason of mental illness, to achieve a rudimentary understanding
 31    after  conscientious efforts at explanation of the purpose, nature, and possi-
 32    ble significant risks and benefits of treatment.
 33        (i)  "Inpatient treatment facility" means a facility in which an  individ-
 34    ual  receives  medical  and  mental  treatment  for not less than a continuous
 35    twenty-four (24) hour period.
 36        (j)  "Supervised residential facility" means a facility,  other  than  the
 37    individual's  home, in which the individual lives and in which there lives, or
 38    are otherwise on duty during the  times  that  the  individual's  presence  is
 39    expected,  persons who are employed to supervise, direct, treat or monitor the
 40    individual.
 41        (k)  "Likely to injure himself or others" means either:
 42        (1)  A substantial risk that physical harm will be inflicted by  the  pro-
 43        posed  patient upon his own person, as evidenced by threats or attempts to
 44        commit suicide or inflict physical harm on himself; or
 45        (2)  A substantial risk that physical harm will be inflicted by  the  pro-
 46        posed  patient upon another as evidenced by behavior which has caused such
 47        harm or which places another person or persons in reasonable fear of  sus-
 48        taining such harm.
 49        (l)  "Mentally  ill" means a person, who as a result of a substantial dis-
 50    order of thought, mood, perception,  orientation,  or  memory,  which  grossly
 51    impairs  judgment,  behavior,  capacity  to  recognize  and  adapt to reality,
 52    requires care and treatment at a facility.
 53        (m)  "Gravely disabled" means a person who, as the result of  mental  ill-
 54    ness,  is  in danger of serious physical harm due to the person's inability to
 55    provide for any of his basic needs for nourishment, or essential medical care,
  1    or shelter or safety.
  2        (n)  "Outpatient commitment" means a court order  directing  a  person  to
  3    comply  with specified mental health treatment requirements, not involving the
  4    continuous supervision of a person in an inpatient setting, that  are  reason-
  5    ably  designed  to alleviate or to reduce a person's illness or disability, or
  6    to maintain or prevent deterioration of the person's mental or emotional func-
  7    tioning. The specified requirements may include, but need not be  limited  to,
  8    taking  prescribed medication, reporting to a facility to permit monitoring of
  9    the person's condition, or participating in individual or group therapy or  in
 10    educational  or  vocational   programs. Outpatient commitment may be up to one
 11    (1) year.
 12        SECTION 3.  That Section 66-329, Idaho Code, be, and the  same  is  hereby
 13    amended to read as follows:
 15    PROCEDURE. (a) Proceedings for the involuntary care and treatment of  mentally
 16    ill  persons  by  the department of health and welfare may be commenced by the
 17    filing of a written application with a court of competent  jurisdiction  by  a
 18    friend, relative, spouse or guardian of the proposed patient, or by a licensed
 19    physician,  prosecuting  attorney, or other public official of a municipality,
 20    county or of the state of Idaho, or the director of any facility in which such
 21    patient may be.
 22        (b)  The application shall state the name and last known  address  of  the
 23    proposed patient; the name and address of either the spouse, guardian, next of
 24    kin  or  friend  of  the proposed patient; whether the proposed patient can be
 25    cared for privately in the event commitment is not ordered;  if  the  proposed
 26    patient  is,  at the time of the application, a voluntary patient; whether the
 27    proposed patient has applied for release pursuant  to  section  66-320,  Idaho
 28    Code;  and  a  simple and precise statement of the facts showing that the pro-
 29    posed patient is mentally ill and either likely to injure himself or others or
 30    is gravely disabled due to mental illness.
 31        (c)  Any such application shall be accompanied by a certificate of a  des-
 32    ignated  examiner stating that he has personally examined the proposed patient
 33    within the last fourteen (14) days and is of the  opinion  that  the  proposed
 34    patient  is:  (i)  mentally ill; (ii) likely to injure himself or others or is
 35    gravely disabled due to mental illness;  and  (iii)  lacks  capacity  to  make
 36    informed  decisions  about  treatment, or a written statement by the applicant
 37    that the proposed patient has refused to submit to examination by a designated
 38    examiner.
 39        (d)  Upon receipt of an  application  for  commitment,  the  court  shall,
 40    within  forty-eight  (48)  hours appoint another designated examiner to make a
 41    personal examination of the proposed patient or if the  proposed  patient  has
 42    not  been  examined,  the  court shall appoint two (2) designated examiners to
 43    make individual personal examinations of the proposed patient  and  may  order
 44    the  proposed patient to submit to an immediate examination. If neither desig-
 45    nated examiner is a physician, the court shall order a physical examination of
 46    the proposed patient. At least one (1) designated examiner shall be a psychia-
 47    trist, licensed physician or licensed psychologist; no more than one (1)  des-
 48    ignated  examiner may be a physician not practicing psychiatry, a holder of an
 49    earned master's level or higher degree in social work from an accredited  pro-
 50    gram,  a  registered  nurse  with an earned master's level or higher degree in
 51    psychiatric nursing from an accredited program,  or  a  holder  of  an  earned
 52    master's  level or higher degree in psychology from an accredited program. The
 53    designated examiners shall report to the court their findings within the  fol-
  1    lowing  seventy-two  (72)  hours  as  to  the mental condition of the proposed
  2    patient and his need for custody,  care,  or  treatment  by  a  facility.  The
  3    reports shall be in the form of written certificates which shall be filed with
  4    the court. The court may terminate the proceedings and dismiss the application
  5    without  taking  any further action in the event the reports of the designated
  6    examiners are to the effect that the proposed patient is not mentally ill  or,
  7    although  mentally  ill,  is  not likely to injure himself or others or is not
  8    gravely disabled due to mental illness. If the proceedings are terminated, the
  9    proposed patient shall be released immediately.
 10        (e)  If the designated examiner's certificate states  a  belief  that  the
 11    proposed patient is mentally ill and either likely to injure himself or others
 12    or  is  gravely disabled  due to mental illness, the judge of such court shall
 13    issue an order authorizing any health officer, peace officer, or director of a
 14    facility to take the proposed patient to a facility in the community in  which
 15    the proposed patient is residing or to the nearest facility to await the hear-
 16    ing  and  for good cause may authorize treatment during such period subject to
 17    the provisions of section 66-346(a)(4), Idaho  Code.  Under  no  circumstances
 18    shall  the  proposed  patient  be  detained  in a nonmedical unit used for the
 19    detention of individuals charged with or convicted of penal offenses.
 20        (f)  Upon receipt of such application and  designated  examiners'  reports
 21    the  court  shall appoint a time and place for hearing not more than seven (7)
 22    days from the receipt of such designated examiners' reports and thereupon give
 23    written notice of such time and place of such hearing together with a copy  of
 24    the  application,  designated  examiner's certificates, and notice of the pro-
 25    posed patient's right to be represented by an attorney, or if indigent, to  be
 26    represented  by  a court-appointed attorney, to the applicant, to the proposed
 27    patient, to the proposed patient's spouse, guardian, next of  kin  or  friend.
 28    With  the consent of the proposed patient and his attorney, the hearing may be
 29    held immediately. Upon motion of the proposed patient  and  attorney  and  for
 30    good cause shown, the court may continue the hearing up to an additional four-
 31    teen  (14)  days during which time, for good cause shown, the court may autho-
 32    rize treatment.
 33        (g)  An opportunity to be represented by  counsel  shall  be  afforded  to
 34    every proposed patient, and if neither the proposed patient nor others provide
 35    counsel,  the  court shall appoint counsel in accordance with chapter 8, title
 36    19, Idaho Code, no later than the time the  application  is  received  by  the
 37    court.
 38        (h)  The  hearing shall be held at a facility, at the home of the proposed
 39    patient, or at any other suitable place not likely to have a harmful effect on
 40    the proposed patient's physical or mental health. Venue for the hearing  shall
 41    be  in  the  county  of  residence of the proposed patient, unless the patient
 42    waives the right to have venue fixed there.
 43        (i)  In all proceedings under this section, any existing provision of  the
 44    law prohibiting the disclosure of confidential communications between the des-
 45    ignated examiner and proposed patient shall not apply and any designated exam-
 46    iner who shall have examined the proposed patient shall be a competent witness
 47    to testify as to the proposed patient's condition.
 48        (j)  The  proposed  patient,  the applicant, and any other persons to whom
 49    notice is required to be given shall be afforded an opportunity to  appear  at
 50    the  hearing, to testify, and to present and cross-examine witnesses. The pro-
 51    posed patient shall be required to be present at the hearing unless the  court
 52    determines  that  the mental or physical state of the proposed patient is such
 53    that his presence  at  the  hearing  would  be  detrimental  to  the  proposed
 54    patient's health or would unduly disrupt the proceedings. A record of the pro-
 55    ceedings  shall be made as for other civil hearings. The hearing shall be con-
  1    ducted in as informal a manner as may be consistent  with  orderly  procedure.
  2    The court shall receive all relevant and material evidence consistent with the
  3    rules of evidence.
  4        (k)  If,  upon  completion of the hearing and consideration of the record,
  5    the court finds by clear and convincing evidence that the proposed patient:
  6        (1)  is mentally ill; and
  7        (2)  is, because of such condition, likely to injure himself or others, or
  8        is gravely disabled due to mental illness;
  9    the court shall order the proposed patient committed to  the  custody  of  the
 10    department  director for an indeterminate period of time not to exceed one (1)
 11    year. The department director,  through  his  dispositioner,  shall  determine
 12    within  twenty-four  (24) hours the least restrictive  available facility con-
 13    sistent with the needs of each patient committed under this section for obser-
 14    vation, care, and treatment.
 15        (l)  Nothing in this chapter or in any rule adopted pursuant thereto shall
 16    be construed to authorize the detention or involuntary admission to a hospital
 17    or other facility of an individual who:
 18        (1)  has epilepsy, a developmental disability, a physical disability, men-
 19        tal retardation, is impaired by chronic alcoholism or drug abuse, or aged,
 20        unless in addition to such condition, such person is mentally ill;
 21        (2)  is a patient  under  treatment  by  spiritual  means  alone,  through
 22        prayer, in accordance with the tenets and practices of a recognized church
 23        or  religious  denomination  by a duly accredited practitioner thereof and
 24        who asserts to any authority attempting to detain him  that  he  is  under
 25        such treatment and who gives the name of a practitioner so treating him to
 26        such authority; or
 27        (3)  can be properly cared for privately with the help of willing and able
 28        family  or  friends,  and  provided,  that such persons may be detained or
 29        involuntarily admitted if such persons are is mentally ill and presents  a
 30        substantial  risk  of  injury to himself or others if allowed to remain at
 31        liberty.
 32        (m)  The order of commitment shall  state  whether  the  proposed  patient
 33    lacks  capacity  to  make  informed  decisions  about  treatment, the name and
 34    address of the patient's attorney and either the patient's  spouse,  guardian,
 35    adult next of kin, or friend.
 36        (n)  If the patient has no spouse or guardian and if the patient has prop-
 37    erty  which  may not be cared for pursuant to chapter 5, title 66, Idaho Code,
 38    or by the patient while confined at a facility,  the  court  shall  appoint  a
 39    guardian  ad litem for the purpose of preserving the patient's estate, pending
 40    further guardianship or conservatorship proceedings.
 41        (o)  The commitment shall continue until the commitment is terminated  and
 42    shall be unaffected by the patient's conditional release or change in disposi-
 43    tion.

Statement of Purpose / Fiscal Impact

                     STATEMENT OF PURPOSE

                             RS 12387

Currently the professional disciplines to be a Designated Examiner
are not consistent within Idaho Code 16-2403, 66-317 and 66-329. 
Idaho Code 16-2403 allows the Department to designate "other mental
health professionals" to be examiners besides those included in
statute, but Idaho Code 66-317 restricts the qualifications to
designated professional disciplines. 

These changes will create consistency between Idaho code 16-2403,
66-317 and 66-329 and enable the Department to create rules to
govern the appointment of examiners for adults as well as for

                         FISCAL IMPACT


Name:        Decker L. Sanders
Agency:      Health and Welfare
Phone:       334-5934

Statement of Purpose/Fiscal Impact                     S 107