PA changed its standard for involuntary mental health treatment earlier this year. So why aren’t counties using it?

More
Brain illustration with cracks.

(Illustration by Remy Davison/PublicSource)

Involuntary mental health treatment is a highly controversial issue among practitioners, advocates and those who have sought and received treatment. Some argue that involuntary treatment is the only way to guarantee that certain people get the help they need. Others say it infringes on a person’s civil rights and can push them away from seeking help in the future.

In April, Pennsylvania changed the standards required for someone to receive assisted outpatient treatment [AOT] — a technical term for a kind of involuntary treatment, such as mandated therapy or day programs while living in the community. Until last year, a person had to be deemed “a clear and present danger” to themselves or others, and AOT was mainly used as a step-down from involuntary inpatient treatment. Now a person can qualify for AOT if there is “clear and convincing evidence that the person would benefit” from it.

Pennsylvania is one of the last states to change its standard in this manner and, so far, every county has opted out of implementing it, citing issues like costs and concerns about how the new AOT law would work in practice.

The legislative change sparked a new round of statewide conversations on if and how involuntary treatment methods should be utilized. To learn more about the potential impact of the change, we spoke to experts from both sides about the key points of the debate.

What types of involuntary treatment options exist in Pennsylvania?

The state’s Mental Health Procedures Act outlines the mental health treatment options allowed in Pennsylvania, including involuntary treatment. Like most states, Pennsylvania permits three types of involuntary, court-ordered treatment: emergency evaluation, extended involuntary treatment and assisted outpatient treatment.

Emergency evaluation (aka “a 302”): This is typically the first step of involuntary treatment. When a person is believed to be a danger to themselves or others due to mental illness, they can be taken to a hospital and evaluated by a physician. A physician or police officer can authorize the medical evaluation without a warrant, or a petitioner — often a person’s loved one or a mental health professional — can sign a 302 form petitioning the county mental health administrator to issue a warrant.

A 302-related evaluation can last up to 120 hours, after which the person is either released or, if the doctor finds that the person needs extended treatment, a hearing can be held to extend the person’s involuntary treatment.

Extended involuntary treatment: After an emergency evaluation, if a doctor decides that a person needs to spend more days in the hospital, a 303 hearing is held and a mental health review officer can sign an order issuing extended emergency hospital treatment up to 20 days. If further treatment is still necessary after 20 days, a 304b hearing is held and treatment can be extended for up to 90 additional days. After the additional 90 days, a 305 hearing can be held to extend treatment for up to 180 more days. More information about types of extended involuntary treatment in Allegheny County can be found on the Department of Human Services website.

Assisted outpatient treatment [AOT] (aka involuntary outpatient treatment): When a court orders a person to adhere to a mental health treatment plan while living in the community, rather than being hospitalized. Treatment plans can include medication, therapy, attendance of daylong or partial-day programs, housing or supervised living services, substance abuse treatment and more.

The new AOT law

Pennsylvania was the 47th state to adopt AOT standards with less strict criteria. According to the memo of the Pennsylvania bill, sponsored by state Rep. Thomas Murt, R-Montgomery, its goal was to allow for less restrictive treatment settings and the chance to intervene sooner “before someone becomes dangerous and tragedy strikes.”

Until recently, Frankie Berger was the director of advocacy at the Treatment Advocacy Center, a Washington, D.C.-area nonprofit that has lobbied for AOT legislation in dozens of states. “It was so important to get that work done legislatively in Pennsylvania,” she said, because the state previously had “the strictest criteria in the entire country.”

“What this law did is it created that less restrictive alternative to be able to use it for people who are really sick, so they have specific criteria that has to be met, but it is less restrictive than what would be required to have an inpatient hospitalization involuntarily,” said Berger, who left the organization on Oct. 2.

Berger said another key component of AOT orders is that they hold service providers accountable for treating difficult-to-treat patients. “Part of that order makes the behavioral health provider actually responsible in the community and to the court for providing those difficult to treat patients with services,” she said. “If there’s an AOT order, they’re obligated to provide that person the treatment and services that they should be.”

Several mental health advocacy organizations opposed the law. In a 2017 letter, representatives of Disability Rights Pennsylvania, Mental Health Association in Pennsylvania, Pennsylvania Mental Health Consumers’ Association and NAMI Keystone PA voiced their concerns. Among them were the bill’s absence of funding for services and court processes and its “look back period,” which allows a person’s mental health history as far back as four years to be considered. “It is unclear why dangerous acts that occurred up to 48 months ago is relevant to the person’s current need for treatment,” the letter said. The organizations also expressed the concern that the new legislation would “substantially increase the number of people subject to involuntary treatment.”

Similar AOT legislation, commonly known as “Laura’s Law,” was passed in California in 2002. Counties were also able to choose whether to implement the law, and were slow to do so; 2008 was the first year a county opted in. As of February, 20 of California’s 58 counties have approved the law’s implementation. Counties, however, have faced fierce opposition from advocacy organizations like Disability Rights California that say involuntary treatment doesn’t work and infringes on civil rights.

Dan Eisenhauer, Dauphin County’s mental health administrator, is the immediate past president of the Pennsylvania Association of County Administrators of Mental Health and Developmental Services [PACA MH/DS]. He said the law did not originally include the provision that has allowed all counties to opt-out but that it was added once it passed the state House and was in the Senate.

“I’ve never heard of a law being optional, period,” Eisenhauer said.

Sarah Eyster is the director of the mental health division of Rehabilitation and Community Providers Association, which represents health and human services providers in the state. She said the law created an unfunded mandate, which is why counties were given the option to opt out. “It has to be properly outlined and funded to be able to move forward,” Eyster said.

The standard is likely not changing in Allegheny County.

“Assisted outpatient treatment [AOT] is not and has never been available in Allegheny County as an involuntary treatment. Currently, there are no plans to offer AOT in Allegheny County,” a representative of the Allegheny County Department of Human Services stated in an email to PublicSource. The county declined an interview request.

Berger called the fact that no counties have implemented the law “ridiculous.” She said Allegheny County is particularly equipped to implement AOT, as it already provides many of the services AOT would require. For instance, Allegheny County has an assertive community treatment team, which includes health professionals like psychiatrists, therapists and social workers that travel to patients in a treatment delivery vehicle.

“Somebody really needs to step up in Pennsylvania and at least try it,” Berger said of the new law.

According to the statement provided by Allegheny County’s Department of Human Services, the “services listed in the AOT language are all available in Allegheny County and delivered through local contracted providers.” More information on the services Allegheny County offers can be found here.

Why aren’t counties using it?

Just because no counties are implementing the new law doesn’t mean they won’t in the future. Counties choose whether to opt out or implement the policy on an annual basis, with the next deadline in January.

“It’s not off the table,” Eisenhauer said.

According to Eisenhauer, the Pennsylvania Office of Mental Health and Substance Abuse Services was charged with providing the forms and instructions on how to implement the new law. The office only distributed the finalized instructions shortly before the mid-April deadline to opt out, Eisenhauer said, giving county administrators little time to interpret the forms or discuss them with their attorneys or service providers. “I think I speak for most counties when I say that was certainly a primary factor of why it wasn’t implemented,” Eisenhauer said.

Pennsylvania Department of Human Services [DHS] spokesperson Ali Fogarty said the finalized AOT instruction forms were distributed in early April. According to Fogarty, the opt-out form was distributed in January.

Erin James, another DHS spokesperson, wrote in an email to PublicSource that a webinar on AOT was held for county administrators in March, and a second webinar will be held in November. According to James, DHS plans to release more information on AOT guidelines by November.

Berger said concerns about service costs are misguided. “The reality is … almost every single person who would meet criteria for AOT would have it fully paid for by Medicaid,” Berger said. According to the Treatment Advocacy Center, the population that is eligible for AOT is seriously ill and typically qualifies for Medicaid. Berger said the only additional costs of implementing AOT would be civil court costs, as many counties already have the necessary services in place. Services could include outpatient treatment programs, substance abuse treatment programs and peer support groups.

But Eyster pointed out the potential for costs beyond treatment itself.

“Who’s going to pay for police to go to someone’s home when they don’t show up [for treatment]? Who is going to pay for the ‘no-shows’ when people don’t go to their appointments because you can only bill for the ‘shows?’” Eyster said. “From the provider perspective, it’s just another area of no money.”

In an email to PublicSource, Berger wrote that police “only get involved if the person meets criteria for an emergency examination … or if they do not show up to a court hearing.”

Eisenhauer said PACA MH/DS agreed with the intent of the bill but “in the end, it was completely unworkable.” One concern was how to evaluate if someone should receive AOT. Right now, the law is vague on how and when an evaluation would occur. According to Eisenhauer, the stance of PACA MH/DS is that an emergency room evaluation should not be how individuals are evaluated for AOT because, under the new law, they do not have to meet the same standard of posing a danger as someone who qualifies for inpatient treatment.

Eisenhauer said that if a person meets the criteria for AOT outlined in the law, the court should be able to authorize an AOT order and a mental health professional should be able to  begin treatment instead of requiring the person to undergo an emergency evaluation in a hospital.

Eisenhauer also expressed concerns over the law’s four-year look back period, which he called “exceedingly long.”

“Whatever was going on in your mental health history four years ago should not necessarily be relevant to your mental health today,” Eisenhauer said.

How effective is AOT?

Studies have not been able to definitively evaluate how effective AOT is.

How AOT is implemented varies widely by place and individual context, which makes comparative research difficult. Some studies, like two conducted by Duke University in 1999 and 2009, have shown that AOT is effective in reducing hospital readmission; others, like a 2013 Oxford study in the United Kingdom, found no difference.

The American Psychiatric Association's resource document on AOT states that its effectiveness is mixed. “However, rather than framing the question as to whether outpatient commitment orders ‘are effective’ — as if comparing Drug A to Drug B — it appears to be more appropriate to ask, ‘Under what conditions, and for whom, can involuntary outpatient commitment orders be effective?’” the report concludes.

Should involuntary treatment exist?

Activists and mental health advocacy organizations have made several arguments against AOT and other forms of involuntary treatment. They question the effectiveness and ethics of forcing a person into treatment.

Alyssa Cypher, the executive director of local self-described “radical” mental health nonprofit Inside Our Minds, said she believes in ending all involuntary and coercive treatment methods. “I don’t think we should be using mental health treatment as an outcome or punishment in our legal system,” she said.

Cypher said the individuals she works with typically fall into one of two categories: those who decided to stop receiving mental health services because they found them to be harmful, and those who would like to receive services but haven’t been able to access them. She noted high costs, an insufficient number of available appointments and insurance red tape as common barriers to access.

“When we force people to get that treatment, I think we’re focusing on the wrong debate here,” Cypher said. “I wish we would move our focus to how can we make mental health treatment available, affordable, accessible to everyone who wants it.”

Jack Rozel, president of the American Association for Emergency Psychiatry, said involuntary treatment should be a last resort. But in his view, it’s sometimes the only way to get people needed treatment.

Rozel, an associate professor of psychiatry at the University of Pittsburgh, is also the medical director of resolve Crisis Services — a mental health services provider that is free for Allegheny County residents.

He generally supports the new AOT law. “We have substantial gaps in our net of treatment and resources in our country and in our state, and this fills in some of those gaps reasonably well. So I think it’s worth having available. I think it’s worth studying more so we can figure out how to improve it,” Rozel said.

Still, Rozel recognizes that forcing people into treatment has the potential to backfire. “There’s that risk that if we overuse the involuntary intervention, we’re going to turn some number of individuals away from the treatment that could ultimately be really beneficial to them.”

Juliette Rihl is a reporter for PublicSource. She can be reached at juliette@publicsource.org.

This story was fact-checked by Harinee Suthakar.

The Staunton Farm Foundation has provided funding to PublicSource to cover issues related to mental and behavioral health.

Comments are closed.