Legal Updates

Independent Medical Exams in L&I Claims

Legislation passed in Washington state during the 2022–2023 session made changes to the independent medical exam (IME) process, including recording of mental health exams. The Washington State Department of Labor & Industries is in the process of rulemaking around recording of IMEs. A public hearing is scheduled for February 6, 2024.

US Supreme Court to Decide Case of Expert Admissibility

The U.S. Supreme Court heard oral arguments on January 10, 2024 in the case of Smith v. Arizona.  It will be of interest to forensic experts because it involves a challenge to the admissibility of drug-analysis testimony when the testifying expert relied on data generated by a non-testifying expert.  The case has implications for a wide-range of forensic experts.

The question before the Court: Does the Confrontation Clause of the Sixth Amendment permit the prosecution in a criminal trial to present testimony by a substitute expert conveying the testimonial statements of a non-testifying forensic analyst?

For more information:  Smith v. Arizona | Oyez

Changes to Federal Rule of Evidence 702

An amended Rule 702 for testimony by expert witnesses went into effect on December 1, 2023.

The new rule, as amended, states: A witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

  1. the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
  2. the testimony is based on sufficient facts or data;
  3. the testimony is the product of reliable principles and methods; and
  4. the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

This reinforces the court as the “gatekeeper” and that the proponent of the expert testimony is tasked with establishing that the reliability requirements are met to a “more likely than not’ standard. This language also calls on the court to consider the conclusion the expert has drawn from their methodology.

Second Temporary Extension of COVID-19 Telemedicine Flexibilities for Prescription of Controlled Medications

The U.S. Drug Enforcement Agency, together with the Substance Abuse and Mental Health Services Administration (SAMHSA) issued a Second Temporary Extension of COVID-19 Telemedicine Flexibilities for Prescription of Controlled Medications. Key provisions include:

  • The telemedicine flexibilities for prescriptions of controlled substances put into place during the Public Health Emergency (PHE) will remain in effect through December 31, 2024.
  • These telemedicine flexibilities authorize practitioners to prescribe schedule II-IV controlled medications via audio-video telemedicine encounters, including III-V narcotic controlled medications approved by FDA for treatment of opioid use disorder via audio-only telemedicine encounters.
  • This includes any practitioner-patient telemedicine relationships that have been or will be established up to December 31, 2024.
  • New standards are expected by fall 2024.

Additional resource:  DEA Extends Telehealth Flexibilities Another Year

2023 Washington state legislative updates

During the 2023 session, the Washington State legislature reviewed many bills with implications for behavioral health. Undergraduate Sarah Forslund, with CMHPL Director Dr. Jennifer Piel, summarized several new laws that were passed this session. Additional details on these and other bills considered by the state legislature are available on the legislature’s website. The effective date for most passed legislation is July 23, 2023.

2SSB 5120 Establishing 23-hour crisis relief centers in Washington state

Senate Bill 5120 directs the Department of Health to certify or license 23-hour crisis relief centers to provide behavioral health care to adults in crisis. Crisis relief centers are expected to accept walk-in patients, people brought in by first responders, and people referred through the 988 system regardless of their behavioral health acuity. The goal is to provide increased access to care for persons experiencing a behavioral health condition.

 

E2SHB 1134 Implementing the 988 behavioral health crisis response and suicide prevention system

House Bill 1134 includes measures to enhance promotion and services related to implementation of the 988 behavioral health crisis response and suicide prevention system, in an effort to streamline clinical interventions and access to resources for people experiencing a behavioral health crisis. Among provisions identified in the bill are requirements for call centers related to training, development and promotion of informational materials for different demographics, and liability protections for crisis workers. Implementation of the 988 has facilitated care for persons experiencing behavioral health crises. This law will provide additional measures to enhance existing services.

SB 5228 Providing occupational therapy services for persons with behavioral health disorders

Senate Bill 5228 provides that behavioral health administrative service organizations and managed care organizations may use their funding to deliver occupational therapy services to individuals receiving treatment for a behavioral health disorder with one of those organizations.

 

SSB 5300 Concerning continuity of coverage for prescription drugs prescribed for the treatment of behavioral health conditions

This law prohibits a health carrier from substituting a non-preferred drug with a preferred drug within a plan year, if the prescription is for the treatment of an enrollee’s serious mental illness, the enrollee is medically stable, and the provider continues to prescribe the drug. The goal is to maintain patients on their antipsychotic, antidepressant, antiepileptic medication, or other prescribed medication that has been effective to treat a serious mental illness.

E2SHB 1715 Enacting comprehensive protections for victims of domestic violence and other violence involving family members or intimate partners

House Bill 1715 was introduced with goal of bolstering protections for victims of domestic violence with changes to civil proceedings, domestic violence protections, and regulations around firearms and dangerous weapons. Some of these amendments include training for law enforcement and judicial officers to use trauma-informed techniques at various stages of their interactions with victims of domestic violence. The law establishes a pilot program for domestic violence high risk teams. The law also appropriates funds for the University of Washington (UW), with external stakeholder input, to establish a Center of Excellence in Research, Policy, and Practice to Reduce Domestic Violence. The UW School of Public Health is leading the planning with assistance from faculty and others across schools at the university.

 

HB 1696 Concerning stalking-related offenses

The bill modifies the scope of conduct that constitutes the crime of Stalking. Among changes, the crime includes inflicting “substantial emotional distress” to a victim of stalking or placing the victim in fear of injury. The victim’s fear of injury was an element of the prior crime of Stalking. The definition of victims’ “substantial emotional distress” includes reactions such as anxiety, apprehension, or loss of ability to concentrate or other symptoms which negatively impact their quality of life. The law also incorporated cyberstalking. A person who experiences a stalking-related offense may develop anxiety or other behavioral health condition, which may require medical or other professional treatment.

 

2SHB 1028 Supporting crime victims and witnesses by promoting victim-centered, trauma-informed responses in the legal system

House Bill 1028 created a Sexual Assault Forensic Examination Best Practices Advisory Group and steps to better address victims and witnesses of gender-based violence crimes. Support within the legal system includes training individuals to interact with victims of gender-based violence that appropriately addresses the victim’s trauma. The law includes provisions for trauma-informed training of peace officers, disclosure authorizations, evidentiary procedures for use of a victim’s social medial account to demonstrate consent, and procedures for collection of biological samples in certain settings. Behavioral health clinicians and victims’ rights advocates have pushed for increasing training and implementing trauma-informed services for these people.

 

ESHB 1394 Creating a developmentally appropriate response to youth who commit sexual offenses

House Bill 1394 decreases the period of time a juvenile is required to remain on the juvenile sex registry and, in some cases, extinguishes the requirement to register at all. This law also tasks the Department of Children, Youth, and Families to develop and implement a grant program for attorneys to apply for funding for sex offender evaluation and treatment programs. The definition of “certified affiliate sex offender treatment provider” is also expanded under this law to include clinicians with specific associate licenses.

SSB 5006 Clarifying waiver of firearm rights

Senate Bill 5006 amends the previous law regarding unlawful firearm possession to include further clarification on the waiver of firearm rights. If a person obtains a firearm after a voluntary waiver of firearm rights has been filed and accepted while the waiver is still in effect, that is considered an infraction. Additionally, when filing a waiver, an individual may provide the name of someone (including a behavioral health clinician) to be notified in case they attempt to purchase a firearm or apply to have the waiver revoked. Although it encourages behavioral health clinicians to discuss voluntary waiver of firearm rights with patients, the law does not obligate clinicians named by a person filing a waiver to take any specific actions, thereby limiting liability concerns.

 

SHB 1240 Establishing firearms-related safety measures to increase public safety

House Bill 1240 prohibits the manufacture, importation, distribution, sale, or offer for sale of any assault weapons in Washington State, with few exceptions. Although there is already a federal lawsuit challenging its constitutionality, the impetus of the law was to reduce incidences of gun violence, including suicide.

 

SHB 1562 Reducing the risks of lethality and other harm associated with gun violence, gender-based violence, and other types of violence

House Bill 1562 amends the crime of Unlawful Possession of a Firearm to include a revised definition of “firearm”, and adds definitions for “domestic violence”, and “sex offense.” The law revises the eligibility for firearm rights following criminal convictions and expands the crimes that prohibit individuals from possessing firearms. It also amends provisions for persons found not guilty by reason of insanity.

E2SSB 5440 Providing timely competency evaluations and restoration services to persons suffering from behavioral health disorders

This bill includes a number of different provisions related to competence to stand trial, several of which are mentioned here. The law introduces “clinical intervention specialists” as a licensed professionals with prescribing authority who will provide direct clinical services and consultation to jails for persons waiting for competency to stand trial services. The law requires judges to determine if there is a genuine doubt as to the defendant’s trial competency before ordering a competency evaluation by a forensic evaluator. Among other provisions, the court may order revocation of a person’s driver’s license for one year for persons charged with a serious traffic offense and found to be incompetent to stand trial; the law includes provisions for reinstatement of the license. For non-felony crimes, the court shall consider appropriate alternatives to inpatient competency restoration, including diversion programs. Additional duties for forensic navigators now include assessing defendants for appropriateness for assisted outpatient treatment and providing updates on the status of individuals’ participation in diversion or outpatient services. DSHS is tasked with developing a process to connect persons found not competent to stand trial due to intellectual disability, developmental disability, dementia, or traumatic brain injury to community-based services.

 

2SSB 5134 Concerning reentry services and supports

Senate Bill 5134 concerns community reentry for incarcerated persons. It outlines the minimum sum of money to be provided to detainees upon release from confinement from a state correctional facility. With this bill, the legislature passed revisions that would have expanded the Department of Corrections required discharge planning services by adding a number of case management linkage services. The Governor partially vetoed the bill that passed the legislature due to inadequate funding and capacity to absorb the work within the Department of Corrections, including the case management services. The Governor did direct the Department of Corrections to provide 90-day supplies of necessary prescribed medications upon release, as clinically appropriate.

 

SS 5087 Removing language from the Revised Code of Washington that has been identified by the justices of the supreme court or judges of the superior courts as defects and omissions in the laws pursuant to Article IV, section 25 of the Washington state Constitution

Although the Washington Supreme Court struck down the state’s death penalty as unconstitutional under state law in 2018, the state legislature had not abolished the death penalty. This law abolishes the death penalty in Washington, as well as removes several prior laws that the state supreme court determined to be invalid or unconstitutional. Among states with the death penalty, some have recently considered limitations for persons with serious mental illness. It is unconstitutional to punish someone by death who was a juvenile at the time of the criminal offense, is intellectually disabled, or incompetent to be executed. Washington is the 23rd state to abolish the death penalty.

 

SHB 1068 Concerning injured workers’ rights during compelled medical examinations

House Bill 1068 authorizes employees to audio and video record compelled independent medical examinations in workers’ compensation cases, including during psychiatric examinations. Prior law precluded recording of psychiatric examinations in Labor and Industries evaluations. The worker must not alter the recording, and the worker must provide a copy of the recording to the Department of Labor and Industries. The law details that reasonable steps must be taken to ensure the recording does not interfere with the examination.

2SSB 5502 Ensuring access to substance use disorder treatment

Bill 5502 requires offenders to undergo assessment and, if deemed necessary, treated for substance use disorder in order to transfer to a graduated reentry program. The graduated reentry program allows the Department of Corrections to transfer individuals, after serving specified times of confinement, to an approved address with monitoring when certain eligibility requirements are met. With this, Department of Corrections will be responsible for assisting incarcerated persons in enrolling in appropriate substance use treatment.

 

2SHB 1168 Providing prevention services, diagnoses, treatment, and support for prenatal substance exposure

House Bill 1168 outlines the steps for Health Care Authority (HCA) to enhance services for children and families that are involved (or at risk of involvement) in the child welfare system with prenatal exposure to substances. The HCA must contract with providers with expertise in comprehensive prenatal exposure treatment and trauma-informed services.

The HCA must support these providers through education, training, and coaching. Outcome data will be collected to further inform ways to increase access to diagnoses, treatment, services, and support for children who were exposed to substances before birth and their families. Behavioral health clinicians may be involved in treatment and providing education for families and children who experience prenatal substance exposure.

 

SB 1255 Reducing stigma and incentivizing health care professionals to participate in a substance use disorder monitoring and treatment program

The Nursing Care Quality Assurance Commission is the disciplinary authority for nurses in Washington and may refer license holders to Washington Health Professional Services (WHPS) for voluntary substance use treatment and monitoring, when applicable, as an alternative or in conjunction with disciplinary actions. In effort to encourage participation in substance use treatment and monitoring, this law clarifies and limits public disclosure of enforcement actions taken against a nurse participating in such a program. The law also requires the Nursing Commission to establish a stipend program to assist license holder participation in WHPS with related out-of-pocket expenses. This law aims to reduce stigma around getting treatment for substance abuse disorders.

 SSB 5189 Establishing behavioral health support specialists

Senate Bill 5189 requires the Department of Health in collaboration with the University of Washington Department of Psychiatry, to establish rules for certification of Behavioral Heath Support Specialists (BHSS). A BHSS is a new type of behavioral health professional who will deliver brief behavioral interventions under the supervision of a credentialed provider with the ability to assess, diagnose, and treat behavioral health conditions. A BHSS will not be certified to make diagnoses but can track and monitor treatment response using measurement-based care. The University, with other stakeholders, developed a training curriculum and guidelines for BHSS. With this law, the Health Care Authority must also take necessary steps to ensure Medicaid coverage of BHSS services. The goal is to improve access to evidence-based interventions for persons with mental health conditions.

 

SHB 1069 Adopting the mental health counselor compact

House Bill 1069 enacts the Mental Health Counselor Compact in Washington State. The Compact is an agreement among states which allows a licensed professional counselor residing in their home state to practice in a remote state. Both the home state and remote state must be members of the Compact, and a counselor must reside and be licensed in their home state to practice in another member state. As of January 1, 2023, the Compact had 17 member states. With ease of interstate practice, the goal is to increase public access to professional counseling.

ESSB 5179 Increasing access to the provisions of the Washington death with dignity act

The Death with Dignity Act was established in 2008 in Washington State. Under this Act, an individual with a terminal illness with six months or less to live may request medication to self-administer to end their life when additional requirements are met, including the decision is made competently and voluntarily. Under prior law, if either the attending physician or consulting physician determined that the patient may have a psychiatric condition that impairs the patient’s judgment, the patient is referred for counseling with a psychiatrist or psychologist. Among other things, this law expands the types of providers who may provide counseling under the Act, including independent social workers, mental health counselors, and psychiatric advanced registered nurse practitioners.

 

New DEA training requirement: Effective June 27, 2023

In March 2023, the U.S. Drug Enforcement Agency (DEA) released details of a new training requirement for DEA-registered practitioners. The Medication Access and Training Expansion Act created a mandatory one-time, eight-hour training requirement for DEA registrants “on the treatment and management of patients with opioid or other substance use disorders.”

As of June 27, 2023, clinicians will be prompted to affirm completion of the new training requirement on their next scheduled DEA registration submission — whether an initial application or renewal. This is a one-time requirement and does not have to be repeated for subsequent license renewals.

Some clinicians will be exempt from the eight-hour training requirements, including those who are board-certified in addiction medicine or addiction psychiatry via the American Board of Medical Specialties, the American Board of Addiction Medicine, or the American Osteopathic Association. There are also some exemptions for recent graduates of medical, physician assistant, or advanced practice nursing schools who completed a comprehensive curriculum that satisfies the training requirement.

A number of organizations are providing training that can be used to fulfill the new DEA training requirement. Previous training completed as part of obtaining an X waiver may also be counted toward the requirement. The American Medical Association has resources and training links to help clinicians meet the requirement.