BILL ANALYSIS Ó
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: AB 2531
AUTHOR: Allen
AMENDED: April 30, 2012
HEARING DATE: June 20, 2012
CONSULTANT: Rubin
SUBJECT : State hospitals: prohibited items.
SUMMARY : Permits a state hospital under the jurisdiction of the
Department of Mental Health (DMH) to develop a list of items
that are considered contraband and prohibited on hospital
grounds, requires each hospital to form a contraband committee
to develop the list, and specifies the update, review, posting,
and provision of the list.
Existing law:
1.Gives DMH jurisdiction over five state hospitals: Atascadero
State Hospital (ASH), Coalinga State Hospital (CSH),
Metropolitan State Hospital (MSH), Napa State Hospital (NSH),
and Patton State Hospital (PSH).
2.Requires DMH to govern the state hospitals under its
jurisdiction by uniform rule and regulation with regard to the
conduct and management of the hospitals.
3.Requires DMH to take care of the interests of each state
hospital under its jurisdiction and maintain an effective
inspection of the hospital.
4. Permits the Director of DMH to prohibit the possession
or use of tobacco products on the grounds of a state
hospital upon the request of the hospital's director.
5.Makes the possession of a wireless communication device,
tobacco products, and money with the intent to deliver to a
patient in the state hospital a misdemeanor, punishable by a
fine of $1,000 or less for each item.
This bill:
1.Permits a state hospital under the jurisdiction of DMH to
develop a list of items that are deemed contraband and
prohibited on hospital grounds and to control and eliminate
contraband on hospital grounds.
Continued---
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2.Requires a state hospital to form a contraband committee,
comprised of hospital management and employees designated by
the hospital's director, to develop the list of contraband
items, and requires the list to be developed with the
participation of patient representatives, or the patient
government of the hospital if one is available, and the Office
of Patients' Rights (OPR).
3.Requires the contraband list to be subject to review and
approval by the Director of DMH or his or her designee.
4.Requires the contraband list to be updated and subject to
review by the Director of DMH, or his or her designee, no less
than every six months.
5.Requires the contraband list to be posted prominently in every
unit of the hospital and throughout the hospital, provided to
a patient upon request, and posted on the hospital's website.
6.Permits each state hospital and DMH to implement, interpret,
or make specific this bill's provisions without taking
regulatory action.
FISCAL EFFECT : According to the Assembly Committee on
Appropriations, this bill has a negligible state fiscal effect.
PRIOR VOTES :
Assembly Health: 19- 0
Assembly Appropriations:17- 0
Assembly Floor: 75- 0
COMMENTS :
1.Author's statement. This bill is aimed at addressing the
increasing problem of the influx of contraband items into
state hospitals, and would allow each state hospital in
California to develop a list of contraband items not allowed
on state hospital grounds. For many years, each hospital
enforced its own individual policies regarding contraband -
items forbidden for possession by patients. In 2009, as a
result of a challenge by a patient at one of the state
hospitals, the Office of Administrative Law (OAL) determined
that DMH's existing contraband policy constituted an
underground regulation. As a result, DMH rescinded the policy
and has no contraband lists in place. To ensure the safety of
the staff, patients, and visitors, each state hospital must be
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able to prevent the possession of dangerous or harmful items
on hospital grounds. Such a mechanism does not currently exist
in statute.
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 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 patients and staff. This legislation is
necessary because it will provide the state hospital system
with a sufficient and individualized mechanism to control the
flow of contraband, which will help ensure the safety and
security of staff and patients.
2.State hospitals under DMH jurisdiction. The five state
hospitals under DMH's jurisdiction serve different populations
and needs. According to a report on oversight and
accountability at state hospitals by the Legislative Analyst's
Office, as of January 2012, ASH treats an all-male,
maximum-security, forensic patient population of over 1,000;
CSH houses over 900 patients, most of whom are sexually
violent predators; MSH houses over 400 patients that do not
have histories of escape, sex crimes, or murder; NSH is a low-
to moderate-security hospital of just under 100 patients; and
PSH treats approximately 1,500 forensic patients and is
primarily a forensic hospital. The report indicated that in
the last decade, state hospitals have seen a shift in their
population, with the forensic population increasing steadily
and the civil commitments in decline; according to DMH, the
forensic population is now approximately 92 percent of the
hospital system. Under the Governor's 2012-2013 budget plan,
community mental health functions and related state functions
would be eliminated or shifted to other departments, offices,
and commissions; since the administration of state hospitals
is mainly what would remain, the Governor has proposed to
change the department's name from DMH to the Department of
State Hospitals, with the intent that this new structure would
allow the Administration to better focus on the fiscal and
programmatic issues unique to state hospitals.
3.OAL. OAL evaluates whether or not an action by a state agency
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complies with California administrative law governing how
state agencies adopt regulations. A 2009 determination by OAL
(No. 19) concerned a DMH Special Order titled "Contraband,"
effective on January 1, 2002, which required executive
directors of individual state hospitals to either develop a
list of items that are considered contraband or a list of
items that are considered allowable to be made available to
patients and to the public. In addition, executive directors
are required to adopt policies on specific subjects, including
procedures for the inspection of patients, their property and
living areas, general hospital areas, and of staff and
visitors to effectively ensure that contraband is not present.
In February 2009, a petition was submitted to OAL challenging
the Special Order, and OAL issued a determination that the
Special Order should have been adopted pursuant to the
Administrative Procedures Act and thus constitutes an
underground regulation. OAL had earlier made determinations
that Administrative Directives issued by DMH or a state
hospital under its jurisdiction regarding contraband
constitute underground regulations (e.g. 2008 OAL
Determinations 23 and 31).
4.OPR. According to its website, DMH is required to enter a
multi-year contract with a nonprofit organization, OPR, to
provide investigative and advocacy services to persons with
mental disabilities, including direct advocacy services in
state hospitals. OPR's website explains that the contract is
to ensure that the treatment and legal rights of people
receiving mental health treatment is maintained. Under this
contract, OPR is operated by Disability Rights California, a
nonprofit agency that provides legal and other advocacy
assistance to people with disabilities.
5.Related legislation. AB 2399 (Allen) would require each state
hospital to update its injury and illness prevention plan
(IIPP) at least once a year, establish an IIPP committee to
recommend updates to the plan, and develop an incident
reporting system to report patient assaults on employees and
provide feedback to the committee. AB 2399 is pending in the
Senate Health Committee.
6.Prior legislation. SB 796 (Blakeslee), Chapter 201, Statutes
of 2011, makes the delivery of wireless communication devices,
tobacco products, and money to state hospital patients a
misdemeanor, punishable by a fine of up to $1,000 per
prohibited item.
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AB 3010 (Blakeslee), Chapter 505, Statutes of 2008, permits
DMH to ban the sale and use of tobacco products on state
hospital grounds.
7.Support. DMH, the sponsor, writes that this bill would
improve state hospital security by granting them the authority
to deal with their contraband problems immediately when they
arise and ensure the rights of patients and staff by requiring
each hospital list to be updated with the input of employees
and patient representatives. The California Psychological
Association states that this bill is a straightforward measure
that is a step in the right direction in providing a better
environment for state-employed psychologists.
SUPPORT AND OPPOSITION :
Support: Department of Mental Health (sponsor)
California Psychological Association
Oppose: None received.
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