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New Bills Filed

The filing deadline for bills to be filed in the Commonwealth of Massachusetts was Friday, January 20, 2023. Late files are still allowed so many people are keeping an eye out for other concerns.

If you are interested to better understand how a Bill goes from filed to law (or not), please CLICK HERE for a detailed summary from Mass Legal Services..

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Top Concerns: Bills That Pose a Clear Threat

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Bill SD. 1472. An Act to provide critical community health services.

This bill is filed by Senator Cindy Friedman.

At present, it is considered by many as the biggest threat related to Involuntary Outpatient Commitment, and it is very strongly supported by AOT NOW, a Massachusetts group pushing Involuntary Outpatient Commitment.

AOT NOW is an especially dangerous group because they make highly misleading claims like that Involuntary Outpatient Commitment (what they call "AOT") will never lead to someone being forced to take medication against their will. They do this to try and undercut the arguments from advocates that know that this sort of law is all about force. They are able to make the claim because Involuntary Outpatient Commitment does not mean someone will come to your house and stick you with a needly or otherwise forcibly drug you. Instead, if you refuse medications, they may involuntarily bring you to a psychiatric facility where the drugs can then be forced on you. The end result is the same, and the denial that "AOT" is about force is dishonest.

A critical section of this legislation is as follows:

(a) Any physician licensed pursuant to section 2 of chapter 112, the department of mental health, the superintendent of a medical facility or residence where the individual receives medical care, or the medical director of the Bridgewater state hospital, or the spouse, blood relative, legal relative, legal guardian or individual partner in a substantive dating relationship, shall be authorized to petition for an order of a critical community health service treatment plan in the district court in whose jurisdiction a facility is located that shall provide such services, for any individual who:

(1) has a primary diagnosis of a serious mental illness;

(2) is at least 18 years old; and

(3) meets the following criteria:

(i) is gravely disabled;

(ii) has a history of lack of compliance with treatment for mental illness that, prior to the filing of the petition, has been a significant factor in: (A) necessitating, at least twice within the previous 36 months, hospitalization or receipt of mental health services in a forensic or department of correction facility or house of corrections or the Bridgewater state hospital; or (B) the commission of one or more acts of serious violent behavior toward self or others or threats of, or attempts at, serious physical harm to self or others within the previous 36 months;

(iii) is in need of, based on the individual’s treatment history and current behavior, critical community health services in order to prevent a relapse or deterioration that would likely result in serious harm to the individual or others; and

(iv) is likely to benefit from critical community health services.

It should be noted that - based on how this is written - threatening suicide in the last 36 months in combination with being disabled and given a serious psychiatric diagnosis could qualify someone for Involuntary Outpatient Commitment under this Bill.

Note: This Bill has also been filed as HD. 3314 by Representative Matthew Muratore.



Bill HD.1809. An Act to strengthen emergency restraint for persons suffering dangerous or violent mental illness.

This bill is filed by Representative Kay Khan. Kay is known for her persistence in trying to pass Involuntary Outpatient Commitment which is also euphemistically known as Assisted Outpatient Treatment or AOT. (When we say euphemistically we are referring to the effort to make a force-laden, harmful approach sound like something else that is benign and helpful.)

In fact, although this bill is not overtly named as an "AOT" bill, it may in fact be one that is trying to sneak Involuntary Outpatient Commitment into law.

The summary of the bill is as follows: Amends GL 123:12 (emergency restraint and hospitalization) by authorizing the hospitalization of a person who is violent, homicidal or poses a risk of serious physical harm to another for up to 72 hours; allows such hospitalization on the statement of a person placed in reasonable fear of violent behavior; entitles anyone hospitalized in this matter to counsel; prohibits release of such persons prior to 3 days; subjects such persons to supervision by a licensed independent clinical social worker or by a mental health worker affiliated with a police department for 7 days; entitles such mental health workers to information about treatment provided; allows such mental health workers to seek expedited readmission in cases of mental illness relapse or likelihood of danger.

Although written to suggest that it is always clear-cut as to when to determine someone is violent (or at risk of being violent), that's frequently not the case. Such assessments are highly subjective, and often influenced by factors like race and gender, as well as disagreement with providers about treatment recommendations. Ultimately, this raises numerous questions. For example:

▪ By what standards will someone be determined to be potentially 'violent'? Will acts that an individual considers self-defense when faced with threat of force be defined in that manner?
▪ Given the deadly outcomes of police involvement, why explicitly tie supervision of an individual classified in this manner to the police if in fact they're also found to be struggling with an emotional crisis and are deemed safe to return to the community?
▪ Does the way this is written automatically increase bias against black and brown community members who are already most likely to be harmed or killed by police in situations involving emotional crisis? (Note: The Bill allows for a choice between an independent clinical social worker or one connected to the police, but who will get to choose, and will it be tied to an individual's own resources and socioeconomic status?)
By what standards will someone be determined to be potentially 'violent'? Will acts that an individual considers self-defense when faced with threat of force be defined in that manner?
Given the deadly outcomes of police involvement, why explicitly tie supervision of an individual classified in this manner to the police if in fact they're also found to be struggling with an emotional crisis and are deemed safe to return to the community?
Does the way this is written automatically increase bias against black and brown community members who are already most likely to be harmed or killed by police in situations involving emotional crisis? (Note: The Bill allows for a choice between an independent clinical social worker or one connected to the police, but who will get to choose, and will it be tied to an individual's own resources and socioeconomic status?)

Perhaps of greatest concern, the bill includes the following language:

If, in the opinion of a social worker or other mental health worker who has supervision over a person committed and then released under this section, that person is relapsing into mental illness such that he or she again presents a danger of serious harm, or is otherwise not compliant with treatment or supervision, that social worker or mental health worker shall have authority to petition for expedited readmission to the facility from which the person was released. Such petition shall not require initiating a new proceeding under this section.

This language sounds very much like what gets called "AOT," particularly because it gives power to detain someone not only based on their actions, but based on their lack of doing what a provider has told them they should do (that is, they are "not compliant with treatment").

Note: This bill has also been filed in the Senate under SD.1764 by John Cronin.



Bill SD.1122, An Act to provide more timely treatment of inpatient mental health care

This Bill primarily consists of notes as to what to add or 'strike out' of existing law, and thus is particularly hard to follow. However, close review suggests that these seemingly minor edits are geared toward making it easier for facilities to secure long-term commitments, and speeding the time to obtain a Rogers Order. While the Rogers decision was originally a protection against force, it has been twisted over the years and in this context it means making it easier for hospitals to secure a Rogers to force someone to take drugs classes as antipsychotics. (CLICK HERE to read more about the original intent of the Rogers decision.)

For example, Section 4 of SD.1122 states "Said section 5 of said chapter 123, as so appearing, is hereby further amended by striking out, in line 15, the words “unless counsel requests a delay”

In reviewing this, it's important to know that the full text of Section 5 is as follows:

"Section 5. Whenever the provisions of this chapter require that a hearing be conducted in any court for the commitment or further retention of a person to a facility or to the Bridgewater state hospital or for medical treatment including treatment with antipsychotic medication, it shall be held as hereinafter provided. Such person shall have the right to be represented by counsel and shall have the right to present independent testimony. The court shall appoint counsel for such person whom it finds to be indigent and who is not represented by counsel, unless such person refuses the appointment of counsel. The court may provide an independent medical examination for such indigent person upon request of his counsel or upon his request if he is not represented by counsel. The person shall be allowed not less than two days after the appearance of his counsel in which to prepare his case and a hearing shall be conducted forthwith after such period unless counsel requests a delay. Notice of the time and place of hearing shall be furnished by the court to the department, the person, his counsel, and his nearest relative or guardian. The court may hold the hearing at the facility or said hospital."

We have underlined the portion that SD.1122 intends to strike out. In other words, individuals at risk of long-term commitment or being assigned a Rogers Order would lose their right to request longer than two days to prepare their defense.

Those of us involved with psychiatric facilities and even community-based clinical treatment are all too aware how many abuses there already are of Rogers Orders. Some psychiatric facilities seemingly automatically seek Rogers Orders for almost anyone who lands on their unit. The principle of 'substituted judgement' is routinely misunderstood and misused. People who are assigned Rogers Orders are routinely not told about their rights to request a review, not included in their own Rogers renewal hearings, and forced to continue to take certain psychiatric drugs even when exhibiting signs of neurological damage.

Removal of any rights or due process is a serious problem.

Note: This Bill has also been filed in the House under HD. 832 by Kay Khan.

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An Additional Note of Concern: DMH Contracts for More Hospital Beds

On December 21, 2022, the Massachusetts Department of Mental Health issued a new Request for Response (RFR) for 65 new psychiatric inpatient beds:

"In response to increased demand for inpatient continuing care behavioral health beds in the Commonwealth of Massachusetts, the Department of Mental Health (DMH) is seeking a qualified inpatient psychiatric hospital(s) to provide 65 Continuing Care inpatient level beds for civil admissions. The sixty-five (65) continuing care beds may be all within one hospital or may be split across two hospitals; provided, however, that the beds shall be on units dedicated exclusively to this contract and the minimum capacity for any single hospital will be 30 beds. Awards may be made to one or more providers.

This will be a closed referral program. Referrals to the Unit(s) (hereinafter reference to Unit includes both singular and plural) may only come from DMH’s State Medical Director, or the Medical Director of the Office of Inpatient Management. Patients admitted to the Unit will require intensive psychiatric rehabilitation services as well as sophisticated risk assessment and management, as provided in applicable DMH policies. Patients referred to the Unit will generally meet DMH’s continuing care service authorization requirements and may come from anywhere within the state. A Contractor must accept all referrals within its stated capacity."

Based on the RFR it is clear that these will be longer term facilities where people will be held for months or longer. In combination with legislation poised to reduce due process and increase use of force, this mix is especially concerning.

Learn more about this RFR HERE (scroll down and click on 'CCU RFR' in the list of file attachments)

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Top Successes: Bills That Gives Us Hope

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SD.1413: An Act establishing peer-run respite centers throughout the Commonwealth

This Bill is sponsored by Senator Joanne Commerford in the Senate, and also appears as HD.1612 as sponsored by Representatives Lindsay Sabadosa and Smitty Pignatelli in the House.

This Bill proposes 14 peer-run respites - at least one per county in Massachusetts - including two LGBTQIA+ peer-run respite pilots based in Hampden and Suffolk Counties.

Development of this Bill was led by a small work group made up of Wildflower's own Sera Davidow and Ephraim Akiva, Mental Health Legal Advisors Committee attorneys Sarah Yousuf and Michael Recco, and advocate, Thomas Brown.

We will be seeking your support to get your local legislators to sign on, and more in the coming weeks so stay tuned!



HD.3255: An Act relative to ending unnecessary hospitalizations and reducing emergency department boarding

This bill is co-sponsored by Representatives Marjorie Decker and Lindsay Sabadosa. Not only does it seek to reduce the number of times someone is even brought to an Emergency Department (identifying that as an act of last resort), but it is yet another Bill in which alternatives such as peer respite show up.

Some of the language includes:

"A mental health professional may only seek involuntary hospitalization of an individual if no less restrictive alternative exists to reduce the likelihood of serious harm by reason of mental illness, as defined in section 1. To prevent unnecessary hospitalization, a mental health professional shall exhaust community-based treatment alternatives, including, but not limited to: (i) the nationally-mandated 988 Suicide and Crisis Lifeline; (ii) the Behavioral Health Help Line of the Roadmap for Behavioral Health Reform; (iii) services offered through Community Behavioral Health Centers including mobile crisis intervention, behavioral health urgent care, and community crisis stabilization; (iv) peer respite and other peer-run alternatives to emergency department visits and hospitalization; (v) Children’s Behavioral Health Initiative (CBHI) or Behavioral Health Services for Children and Adolescents (BHCA) services; (v) family supports; and (vi) technologically-supported behavioral health services, prior to seeking involuntary transportation, restraint and hospitalization pursuant to this section. The mental health professional shall document on the application for hospitalization that the mental health professional has exhausted community-based alternatives, the reasons for the restraint of such person and any other relevant information that may assist the admitting physician or physicians."

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Other Bills to Watch

The following is a list of Bills that need further investigation to determine whether they're good, bad, or neutral and/or where they're going to head.

▪ HD502, An Act to identify and eliminate racial and sexual orientation and gender identity disparities in mental health, Rep. Marjorie Decker
▪ HD542, An Act to further define medical necessity determinations, Rep. Michael Kushmerek
▪ HD605, An Act removing barriers to behavioral health services, Rep. Adam Scanlon
▪ HD772, An Act relative to creating intensive stabilization and treatment units within the Department of Mental Health, Rep. Patricia A. Haddad
▪ SD583, An Act relative to creating intensive stabilization and treatment units within the Department of Mental Health, Sen. Marc R. Pacheco
▪ SD873, An Act for supportive care for serious mental illness, Sen. John Cronin
▪ SD2119, An Act to review hospitalization and emergency restraints in involuntary commitment, Sen. Paul Mark
HD502, An Act to identify and eliminate racial and sexual orientation and gender identity disparities in mental health, Rep. Marjorie Decker
HD542, An Act to further define medical necessity determinations, Rep. Michael Kushmerek
HD605, An Act removing barriers to behavioral health services, Rep. Adam Scanlon
HD772, An Act relative to creating intensive stabilization and treatment units within the Department of Mental Health, Rep. Patricia A. Haddad
SD583, An Act relative to creating intensive stabilization and treatment units within the Department of Mental Health, Sen. Marc R. Pacheco
SD873, An Act for supportive care for serious mental illness, Sen. John Cronin
SD2119, An Act to review hospitalization and emergency restraints in involuntary commitment, Sen. Paul Mark
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PLEASE NOTE: As Bills were just posted - and late files may still happen - this may not be a complete list of all Bills worth watching. We will do our best to alert you as we become aware of others.

Special thanks to Rick Glassman at the Disability Law Center not only for all his work to track and keep on top of these Bills as they emerge and move forward, but to his commitment to sharing what he learns and working collaborative to seek justice.

 
 
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