Debriefing the 2022 WV Regular Legislative Session – Behavioral Health

By Brian J. Skinner, Esq.

Four bills related to behavioral health were passed during the second session of the 85^th West Virginia Legislature. Most significantly, House Bill 4369 updated the telepsychology compact. It added two additional criteria for a psychologist who holds a graduate degree in psychology, which is necessary for him or her to practice Interjurisdictional Telepsychology under the terms and provisions of the compact. First, the graduate program, wherever it may be administratively housed, must be identified clearly and labeled as a psychology program. Second, the program must stand as a recognizable, coherent, organizational entity within the institution.

The bill, approved by the Governor on March 9, 2022, has an effective date of February 21, 2022.

Senate Bill 181 implements the National Suicide Hotline Designation Act of 2020 and the Federal Communication Commission’s rules adopted July 16, 2020, by establishing the three-digit phone number, 988, as the universal number for the National Suicide Prevention and Mental Health Crisis Hotline System. Congress mandated a deadline of July 16, 2022, for 988 to be available nationwide. The bill as introduced included an 11-cent-per-month surcharge on consumer wireless subscribers. As enacted, the legislation does not include the consumer wireless subscriber fee or any other funding mechanism. Consequently, it will be up to the Department of Health and Human Resources to fund the implementation of the system.

Senate Bill 247 mandates that the Bureau for Medical Services develop, seek approval of, and implement a Medicaid state plan amendment necessary to establish a system of certified community behavioral health clinics (CCBHCs).

The Bureau for Medical Services, in partnership with the Department of Health and Human Resources’ Bureau for Behavioral Health, has the duty to establish a state certification system for CCBHCs in accordance with requirements contained in the law. Some of those requirements include:

• A CCBHC system that is consistent with the demonstration program established by Section 223 of the Protecting Access to Medicare Act of 2014 (P.L. 113-93, 42 U.S.C. 1396a note), as amended; and
• Standards and methodologies for a prospective payment system that reimburses each CCBHC under the state Medicaid program on a predetermined, fixed amount per day for covered services rendered to each Medicaid beneficiary.

CCBHCs directly, or indirectly through formal referral relationships with other providers, must offer the following services:

• Crisis mental health services, including 24-hour mobile crisis teams, emergency crisis intervention services, and crisis stabilization;
• Screening, assessment, and diagnosis, including risk assessment;
• Patient-centered treatment planning or similar processes, including risk assessment and crisis planning;
• Outpatient clinic primary care screening and monitoring of key health indicators and health risks;
• Targeted case management;
• Psychiatric rehabilitation services;
• Peer support and counselor services;
• Family support services; and
• Community-based mental health services, including mental health services for members of the armed forces and veterans.

Nonprofit comprehensive community mental health centers, comprehensive intellectual disability facilities, and all other providers included in the Medicaid state plan amendment are eligible to apply for certification as a CCBHC. Participation in the CCBHC system is voluntary.

Senate Bill 419 establishes a pilot project to evaluate the impact of certain post-substance use disorder residential treatments. Within three months of the effective date of the bill, the Bureau for Medical Services must seek an amendment to an existing waiver from the Centers for Medicare and Medicaid Services to support the pilot program where the Bureau may allocate, at a minimum, 15% of its substance-use disorder residential treatment contracts with Medicaid Managed Care Organizations (MCOs), to be paid based on performance-based measures.

Substance-use disorder residential treatment facilities that opt for performance-based contracting must utilize programs that are evidence-based, research-based, and supported by promising practices in providing services to the patient population, including fidelity and quality assurance provisions, and develop a robust post-treatment planning program.

The legislation authorizes an advisory committee to develop the performance-based metrics, for which payment is based on criteria contained in the legislation. The advisory committee will evaluate the pilot program annually for effectiveness, adjust metrics as indicated to improve quality outcomes and assess the pilot for continuation. The pilot terminates after three years unless it is recommended for continued evaluation based upon metrics that indicate the effectiveness of the program.

After determining that a major overhaul of the state’s involuntary commitment process was too heavy of a lift, the Legislature settled for several pilot projects and other initiatives to help determine the best way to address the problems plaguing the current system. House Bill 4377 first seeks to address the concerns of law-enforcement agencies that often are tasked with transporting persons who are involuntarily committed to mental health facilities. The bill requires the Secretary of the Department of Health and Human Resources (DHHR), in collaboration with the Supreme Court of Appeals, Sheriffs’ Association, Prosecuting Attorneys’ Association, Public Defender Services, Behavioral Healthcare Providers Association, Disability Rights of West Virginia, and the Dangerousness Assessment Advisory Board to undertake an evaluation of alternative transportation providers and also develop standards defining the role, scope, regulation, and training necessary for the safe and effective utilization of alternative transportation providers. Recommendations regarding alternative sources of transportation must be submitted to the President of the Senate and the Speaker of the House of Delegates on or before July 31, 2022.

Additionally, DHHR is required to establish a process to conduct retrospective quarterly audits of applications and licensed examiner forms prepared by certifiers for the involuntary civil commitment of persons provided in West Virginia Code §27-5-1 et seq. The process is to determine whether the licensed examiner forms prepared by certifiers are clinically justified and consistent with the requirements of state law and, if not, develop corrective actions to redress identified issues.

The bill also mandates that mental health centers make available, as necessary, a qualified and competent licensed person to conduct prompt evaluations of persons for commitment in accordance with West Virginia Code §27-5-1 et seq. Evaluations must be conducted in person unless an in-person evaluation would create a substantial delay to the resolution of the matter, and then the evaluation may be conducted by videoconference.

The legislation authorizes the Supreme Court of Appeals, mental health facilities, law enforcement, and DHHR to participate in pilot projects in Cabell, Berkeley, and Ohio Counties to implement an involuntary commitment process.

House Bill 4377 makes other changes to the involuntary commitment process, such as allowing hearings to be conducted via videoconferencing unless the individual or his or her attorney object for good cause or unless the magistrate, mental hygiene commissioner, or circuit judge orders otherwise; establishing time-frames; clarifying necessary findings; establishing the legal effect of commitment determined not to be based on mental illness or addiction of a person’s professional licensure, employment, employability, parental rights, and right to possess a firearm; establishing court jurisdiction for final commitment hearings; and requiring that DHHR reimburse the Sheriff, Department of Corrections and Rehabilitation, or other law enforcement agency for the actual costs related to transporting a patient who has been involuntarily committed.

Finally, Senate Bill 595 updates provisions of law regarding the Dangerousness Assessment Review Advisory Board. The board provides opinion, guidance, and informed objective expertise to circuit courts about the appropriate level of custody or supervision necessary to ensure that persons who have been judicially determined to be incompetent to stand trial and not restorable or not guilty by reason of mental illness are in the least restrictive environment available to protect the person, other persons, and the public generally.

The Legislature amended the law to ensure that a board member is not subject to a subpoena to appear at a judicial hearing by virtue of being a member of the board or fulfilling his or her duties under the law. Upon request of the circuit court, the board must make all documents, reports, and other materials used in making its report available to the court or a party in the judicial proceeding regarding placement in redacted form upon the circuit court’s request.

Brian J. Skinner is the former counsel to the West Virginia House of Delegates Judiciary Committee and counsel to the West Virginia Senate Minority Caucus. He was also general counsel to the West Virginia State Health Officer and Commissioner for the Bureau for Public Health. He has almost two-decades of experience as a strategic advisor and chief legal counsel to both executive and legislative branch public officials.