BILL ANALYSIS Ó AB 2531 Page 1 Date of Hearing: April 24, 2012 ASSEMBLY COMMITTEE ON HEALTH William W. Monning, Chair AB 2531 (Allen) - As Introduced: February 24, 2012 SUBJECT : State hospitals: prohibited items. SUMMARY : Authorizes each of the five state hospitals under the jurisdiction of the Department of Mental Health (DMH) to develop a list of items that are deemed contraband and prohibited on hospital grounds and requires each hospital to establish a contraband committee, comprised of hospital management and designated employees, to develop the list. Specifically, this bill : 1)Permits each state hospital, for its safety and security, to develop a list of items that are deemed contraband and prohibited on hospital grounds, and control and eliminate contraband on hospital grounds. 2)Requires each state hospital to form a contraband committee, composed of hospital management and employees designated by the hospital's director, to develop the list. Requires the list to be developed with the participation of patient representatives, or the patient government of the hospital, if one exists, and the Office of Patients' Rights (OPR). 3)Makes the list subject to review and approval by the Director of DMH or his or her designee. 4)Requires the list to be updated and subject to review and approval by the Director of DMH or his or her designee at least every six months. 5)Specifies that the list shall be posted prominently in every unit of the hospital and throughout the hospital, and provided to a patient upon request. 6)Authorizes each state hospital and DMH to implement, interpret, or make specific the requirements of this bill without taking regulatory action. EXISTING LAW : AB 2531 Page 2 1)Charges DMH with managing the care and treatment of mentally ill patients at California's five state mental hospitals: Atascadero (ASH); Coalinga (CSH); Metropolitan (MSH); Napa (NSH); and, Patton (PSH). 7)Designates NSH and MSH to only treat low-to-moderate risk patients and requires high-risk patients to only be treated at ASH or PSH, a correctional facility, or other secure facility. 8)Requires DMH, in state regulation, to adopt uniform rules and regulations for the conduct and management of the state hospitals, including prohibiting patients from possessing certain items. 2)Permits the Director of DMH to prohibit the possession or use of tobacco products on the grounds of a state hospital, upon receiving a request from the director of the state hospital, as specified. 9)Prohibits, in state regulation, wireless communication devices, as specified, within a state hospital. 10)Makes, with specified exceptions, a person who possesses with the intent to deliver, or who delivers, to a patient in a state hospital a wireless communication device, tobacco products or currency, except as authorized, guilty of a misdemeanor, punishable by a maximum fine of $1,000 for each item. FISCAL EFFECT : This bill has not yet been analyzed by a fiscal committee. COMMENTS : 1)PURPOSE OF THIS BILL . DMH is sponsoring this bill to grant each state hospital the ability to develop an individualized list of contraband items that are forbidden for possession by patients. DMH writes that an effective contraband policy was routinely enforced at each of the five facilities until 2009 when the Office of Administrative Law (OAL) ruled that the policy constituted an underground regulation. DMH rescinded the policy in response to the OAL ruling and currently has no contraband lists in effect. DMH states that each state hospital must be able to prevent the possession of dangerous or harmful items on hospital grounds in order to ensure the AB 2531 Page 3 safety of staff, patients, and visitors. This bill seeks to provide a mechanism for state hospitals to create, update, and enforce their own contraband lists, independent of the regulatory process. 2)BACKGROUND . DMH oversees the operation of the five state hospital campuses as well as two acute psychiatric programs that provide treatment to a combined patient population of over 5,000. There has been a dramatic shift in the patient population at state hospitals in the last decade as the number of patients committed by way of the criminal justice system has risen while the number of patients referred by counties under civil commitments has declined. DMH reports that the forensic population now comprises 92% of the state hospital system. DMH reports that contraband items are a constant and sizeable problem within the state hospital system. In the 2010-11 fiscal year, more than 3,000 items of contraband were confiscated system-wide, ranging from shanks, razors, and lighters to illegal drugs, cigarettes, and alcohol. Contraband items led to 123 hospital lockdowns over the same period. DMH indicates that contraband items represent a significant source of danger to staff and patients, not only because some items may be used as weapons, but also because contraband items are often the cause of incidents of aggression between the patients and staff. 3)PRIOR CONTRABAND POLICY . Prior to the OAL determination in 2009, DMH's contraband policy specified that any item constituting safety or security concerns could be denied or confiscated and any item received that was not included on an allowable property or contraband list was subject to return to sender or donation to charity. The system-wide policy required all allowable items to be from an approved source based on a thorough inspection by hospital staff. At the time, each hospital maintained its own contraband list as each facility's needs varied based on the patient population and the physical infrastructure of the hospital campus. For example, DMH points out that the safety and security priorities at CSH, a closed campus with a patient population comprised primarily of sexually violent predators, differ from those at NSH, an open campus whose population largely consists of low-to-moderate risk criminal offenders. As a result, each hospital had different methods and timing for updating its AB 2531 Page 4 list, ranging from once per year (ASH) to as often as once per month (CSH). However, DMH adds that each hospital retained the ability to update its list as needed in the event of an emergency. DMH asserts that, in order to provide a safe, secure and therapeutic environment, the state hospital system must have an effective way to control the items possessed by patients. DMH states that it is pursuing the authority for each hospital to establish contraband policies through legislation rather than the regulatory process because the administrative process of enacting regulations is often lengthy, usually a year or more, and each hospital needs flexibility to develop and continuously update its own contraband list, rather than going through the process of enacting a regulation each time a new item needs to be added to the list. DMH also notes that, unlike the regulatory process, this bill provides for the direct involvement of patients and patients' rights groups in the development of the contraband policies. 4)OPR . The OPR provides investigative and advocacy services to persons with mental disabilities who are receiving treatment in a facility under the jurisdiction of DMH. The OPR provides direct advocacy services in the state hospitals as well as training and technical assistance to all county patients' rights advocates. OPR is charged with ensuring that all patients are informed of their rights in a language and manner that is easily understood by the patient upon admission to a facility and annually thereafter; when there is a change in the patient's legal status; and, when the patient is transferred to another unit or facility. 5)PROPOSED DEPARTMENT OF STATE HOSPITALS . The Governor's 2012-13 State Budget proposes to eliminate DMH and create a new Department of State Hospitals. The Governor's plan would shift community mental health programs and related state functions to other departments, offices, and commissions and eliminate some programs entirely. Under the Governor's plan, the workload that would remain at DMH would mainly be the administration of the state hospitals. The Governor's Administration states that a new and separate department is needed to oversee these facilities in order to comprehensively focus on mitigating significant health and public safety issues, centralize administrative functions, and address core patient population management and fiscal administration. It AB 2531 Page 5 is unknown how the proposal to establish this new department will interact with this bill. 6)SUPPORT . The California Association of Psychiatric Technicians, which represents direct care mental health nursing professionals at state hospitals, writes in support that this bill improves safety and security by allowing each facility to create and update a consistent list of contraband and to establish facility-specific committees aimed at eliminating the dangers posed by contraband. The California Statewide Law Enforcement Association writes that the introduction of dangerous items and substances in these facilities has significantly increased as a result of the forensic nature of the patient population and DMH needs the flexibility provided in this bill to ban or restrict specific items from these facilities to improve safety. The California Psychological Association adds that this bill is a positive step toward providing a safer work environment for employees. 7)RELATED LEGISLATION . AB 2399 (Allen) requires each of the state hospitals to update its injury and illness prevention plan (IIPP) at least once a year and establish an IIPP committee to provide recommendations for updates to the plan. AB 2399 was heard in this committee on April 17, 2012, and passed with a vote of 10-0. 8)PRIOR LEGISLATION . a) SB 796 (Blakeslee), Chapter 201, Statutes of 2011, makes the delivery of wireless communication devices, tobacco, and money to state hospital patients a misdemeanor, punishable by a fine of up to $1,000 per prohibited item. b) AB 3010 (Blakeslee), Chapter 505, Statutes of 2008, permits DMH to ban the sale and use of tobacco products on state hospital grounds. 9)AUTHOR'S AMENDMENT . The author will be accepting an amendment in committee to require the contraband list to be posted on each facility's Internet Website. REGISTERED SUPPORT / OPPOSITION : Support AB 2531 Page 6 Department of Mental Health (sponsor) California Association of Psychiatric Technicians California Psychological Association California Statewide Law Enforcement Association Opposition None on file. Analysis Prepared by : Cassie Royce / HEALTH / (916) 319-2097