LCAR rejects forced medication rule change


BRATTLEBORO -- A proposal by the Department of Mental Health to change the rules regarding the state's emergency involuntary medication guidelines was rejected by the Legislative Committee on Administrative Rules, or LCAR, Thursday.

In the wake of changes to Vermont's mental health system following the closure of the State Hospital in Waterbury, the Mental Health Department was looking for broader authority for who could restrain, seclude, or order emergency involuntary medication to patients under the custody of the Commissioner of Mental Health.

Since Tropical Storm Irene forced the closure of the State Hospital in August 2011, patients have been treated at a number of locations around the state, including at the Brattleboro Retreat.

Currently the state only allows a physician who has met with the patient to prescribe medication against the patient's will in the event of an emergency. The Commissioner of Mental Health asked LCAR to change the state rule to allow a licensed nurse, a physician's assistant, or other licensed mental health officials to be able to order the emergency involuntary medication. Federal rules allow the other mental health professionals to force medication in the event of an emergency. The new rule would have also allowed a licensed health professional, who did not conduct an exam on the patient, to order emergency involuntary medication.

But LCAR, in a 6-1 vote, rejected that request Thursday.

Brattleboro Retreat Senior Vice President for Government Relations Peter Albert said the Retreat supported the Department of Mental Health's request to change the rule.

"The Retreat supports the work that Department of Mental Health did over the past number of months. They had many meetings with a variety of stakeholders and reached a series of good compromises that focus on patient care and protection," Albert said . "Their position of following CMS regulations is sound as CMS provides very stringent requirements in this area that have been vetted over a number of years and are familiar to hospitals. Moving forward we do not know what this means but we will be meeting with other hospitals and DMH to review. In the meantime we will continue to follow CMS guidelines and work diligently to both provide care to people in need and be absolutely respectful of their rights."

Rep. Richard Marek, D-Newfane and Vice Chairman of LCAR, said the committee voted down the proposed change largely because it would have gone against Act 79, the law that establishes the rights of patients under the commissioner's care.

When the Legislature passed Act 79 to establish new rules for Vermont's decentralized mental health system the law said patients in the new facilities deserve the same rights and protections the State Hospital patients had.

Marek said the proposed rule would have changed that.

Marek, in an interview Friday, said that it is LCAR's job to make sure proposed rule changes meet the law, which the proposed rule change did not.

Marek said it was not in LCAR's purview to decide whether statutes were adequate or appropriate.

"This rule would have expanded the universe of persons permitted to authorize involuntary medication," Marek said. "It would have extended the power of the commissioner beyond the statutory authority."

Marek said the Department of Mental Health argued that when Vermont's most acutely mentally ill patients were all in the State Hospital there was a full staff on call 24 hours a day.

Under the state's new decentralized system it is more likely that an emergency could crop up without the patient's doctor being immediately available.

Marek said it is likely the Legislature will take the issue up during the 2014 session, but he said it was not in LCAR's power to change the rule when it went against the law, as it is written.

"It is very important that these patients have the same rights they would have had in the state hospital," Marek said. "As a policy it might make perfect sense to broaden the prescriber's authority, but that is a policy decision and LCAR does not do that."

Jill Olson, vice president of policy and legislative affairs at the Vermont Association of Hospitals and Health Systems said the hospitals she represents, including the Retreat, were in favor of the rule change.

The proposed change would have aligned Vermont's rule with the federal Centers for Medicaid and Medicare standard, she said.

Olson said the two sides agreed that ultimately seclusion, restraint and involuntary emergency medication should only be used in an emergency when there is a threat of harm to either the patient or doctor.

"VAHHS supported the rule presented to LCAR by the Department of Mental Health," Olson said. "It was aligned with the current federal standards under which hospitals already operate. IN addition it would have created a constructive Vermont approach to reviewing the use of emergency involuntary procedures, bringing together clinicians and individuals with experience with mental illness."

Olson said the Department of Mental Health and those who were advocating for the change have not yet had a chance to talk about their next steps following Thursday's ruling.

"While LCAR's discussion naturally focused on the issues of disagreement, it's important to note that there were many provisions on which stakeholders achieved consensus," Olson said. "Most importantly, we all share the goal of reducing the use of emergency involuntary procedures and ensuring that their use is limited to when patients present an imminent risk of harming themselves or others."

Howard Weiss-Tisman can be reached at; or 802-254-2311, ext. 279. You can follow Howard on Twitter @HowardReformer.


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