BILL ANALYSIS Ó
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: AB 1340
AUTHOR: Achadjian
AMENDED: April 3, 2014
HEARING DATE: June 11, 2014
CONSULTANT: Diaz
SUBJECT : Enhanced treatment programs.
SUMMARY : Establishes enhanced treatment programs (ETPs) within
the Department of State Hospital system to be licensed by the
Department of Public Health to provide additional treatment to
patients with histories of violent behavior. Allows ETPs to lock
patient doors externally when clinically necessary and other
specified requirements are met. Requires patients in ETPs to
receive treatment from a team of professionals, as specified;
determinations to be in writing and provided to patients and
their advocates; and transfers of patients to occur as timely as
possible, as specified. Allows patient treatment teams to
determine at any time that a patient no longer requires
treatment in an ETP, as specified.
Existing law:
1.Establishes the Department of State Hospitals (DSH) as the
lead agency charged with overseeing and managing the state's
five state hospitals: Atascadero, Coalinga, Metropolitan,
Napa, and Patton.
1.Provides for the involuntary commitment of mentally ill
persons to a state hospital, such as when the patient is
deemed incompetent to stand trial (IST) or not guilty by
reason of insanity (NGI), or the patient is a mentally
disordered offender (MDO).
2.Requires DSH, prior to admission of a patient committed as IST
or NGI to Metropolitan or Napa, to evaluate each patient for
risk.
3.Designates Napa and Metropolitan to only treat low-to-moderate
risk patients; requires high-risk patients to only be treated
at Atascadero or Patton, a correctional facility, or other
secure facility; and, designates Coalinga for mostly sexually
violent predators (SVP).
Continued---
AB 1340 | Page 2
4.Makes a violation of any law or regulation pertaining to
health facilities, including acute psychiatric hospitals, a
misdemeanor, and upon conviction is punishable by a fine not
to exceed $1,000 or imprisonment in a county jail for a period
not to exceed 180 days, or by both the fine and imprisonment.
This bill:
1.Establishes ETPs, commencing July 1, 2015, and subject to
available funding, under the jurisdiction of DSH to provide
24-hour inpatient care for mentally disordered, incompetent,
or other patients who have been committed to DSH and have been
assessed to be at high risk for most dangerous behavior, as
defined, and cannot be effectively treated within an acute
psychiatric hospital, a skilled nursing facility, or an
intermediate care facility, including medical, nursing,
rehabilitative, pharmacy, and dietary service. Specifies that
it is not the Legislature's intent for ETPs to supplant the
aforementioned facilities.
2.Requires an ETP to meet licensure requirements for acute
psychiatric hospitals commencing July 1, 2015 and until
January 1, 2018. Requires the Department of Public Health
(DPH) to license ETPs, on and after January 1, 2018, to
provide treatment for patients at high risk for the most
dangerous behavior as part of a continuum of care based on the
individual patient's treatment needs. Requires DSH and DPH to
jointly develop regulations governing ETPs.
3.Requires ETPs to meet the following:
a. Maintain staff-to-patient ratios of
one-to-five,
b. Limit each room to one patient,
c. Require each patient room to allow visual
access by staff 24 hours a day,
d. Require each patient room to have a bathroom,
e. Allow each patient room door to lock
externally only when clinically indicated and
determined to be the least restrictive environment for
provision of the patient's care and treatment.
Specifies that a locked door is not considered
seclusion; and,
f. Provide emergency egress for patients.
4.Requires ETPs to adopt and implement policies and procedures
consistent with DSH regulations that provide:
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a. Policies and procedures for admission into an
ETP,
b. Clinical assessment and review focused on
behavior, history, dangerousness, and clinical need
for patients to receive treatment in an ETP,
c. A process for identifying which ETP along a
continuum of care best meets the patient's needs, and
d. Treatment plans with regular clinical review
and reevaluation of placement back into a standard
treatment environment, including discharge and
reintegration planning.
5.Requires that ETP patients are guaranteed the same rights as
patients not in an ETP, with the exception of placement in a
room with a door that may be locked externally.
6.Requires DSH, commencing January 1, 2018, and until January 1,
2026, to monitor ETPs, evaluate outcomes, and report the
findings and recommendations to the Legislature every two
years.
7.Allows a state hospital psychiatrist or psychologist to refer
a patient to an ETP for temporary placement and risk
assessment upon determining the patient may be at high risk
for most dangerous behavior and when treatment is not possible
in a standard treatment environment. Allows the referral to
occur at any time after the patient is admitted to a DSH
facility with notice to the patient's advocate at the time of
referral.
8.Requires, within three business days of placement in an ETP, a
dedicated forensic evaluator, not on the patient's treatment
team, to complete an initial evaluation of the patient that
includes an interview of the patient's treatment team, an
analysis of diagnosis, past violence, current level of risk,
and the need for enhanced treatment.
9.Requires, within seven business days of placement in an ETP
and with 72-hours' notice to the patient and patient's
advocate, a forensic needs assessment panel (FNAP) to conduct
a placement evaluation meeting with the referring psychiatrist
or psychologist, the patient and patient's advocate, and the
dedicated forensic evaluator who performed the initial
evaluation. Requires a determination to be made as to whether
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the patient clinically requires ETP treatment. Allows the FNAP
to delay its decision for an additional seven business days if
a patient shows improvement during placement in the ETP.
10.Specifies that the threshold standard treatment in an ETP is
met if a psychiatrist or psychologist who uses standard
forensic methodologies for clinically assessing violence risk,
including an analysis of past violence and use of valid and
reliable violence risk assessment testing, determines that a
patient meets the definition of a patient at risk for most
dangerous behavior and ETP treatment can meet the identified
needs of the patient.
11.Requires the FNAP to review all material presented at the
placement evaluation meeting and to certify the patient for 90
days of ETP treatment or direct the patient be returned to a
standard treatment environment. Requires a patient's transfer,
if the ETP treatment will be provided at a facility other than
the current hospital, to take place as soon as transportation
can be reasonably arranged and no later than 30 days after the
decision is made. Requires the determination to be in writing
and provided to the patient and patient's advocate as soon as
possible but no later than three business days after the
decision.
12.Requires upon admission to an ETP a forensic needs assessment
team (FNAT) psychologist, who is not on the patient's
treatment team, to perform an in-depth violence risk
assessment and make a treatment plan based on the assessment
within 14 business days of placement in the ETP. Requires
formal treatment plan reviews to occur on a monthly basis and
to include a full report on the patient's behavior while in
the ETP. Requires an ETP patient to receive treatment from a
team consisting of a psychologist, psychiatrist, nurse,
psychiatric technician, clinical social worker, rehabilitation
therapist, and any other staff necessary, and to meet no less
than once a week to assess the patient's response to ETP
treatment.
13.Requires the FNAP to convene a treatment placement meeting
prior to the expiration of the 90-day treatment and with
72-hours' notice to the patient and patient's advocate with a
psychologist from the treatment team, a patient advocate, the
patient, and the FNAT psychologist who performed the in-depth
violence risk assessment, to determine if the patient may
return to a standard treatment environment or if the patient
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5
clinically requires continued ETP treatment.
a. Requires the patient to be certified for one
year of ETP placement if the FNAP determines the
patient clinically requires continued ETP treatment.
Requires the determination to be in writing and
provided to the patient and the patient's advocate
within 24 hours of the meeting. Requires the FNAP to
review the patient's treatment summary every 90 days
to determine if the patient no longer clinically
requires ETP treatment. Requires this determination to
be in writing and provided to the patient and
patient's advocate within three business days of the
meeting.
b. Requires the FNAP to identify appropriate
placement within a standard environment in a state
hospital and for the patient to be transferred within
30 days if the FNAP determines that the patient is
ready to be treated in a standard treatment
environment.
14.Requires the FNAP, prior to the expiration of the one-year
certification of ETP placement and with 72-hours' notice to
the patient and patient's advocate, to convene a treatment
placement meeting with the treatment team, the patient
advocate, the patient, and the FNAT psychologist who performed
the in-depth violence risk assessment. Requires the FNAP to
determine if a patient clinically requires continued ETP
treatment. Requires a patient to be certified for ETP
treatment for an additional year if the FNAP determines the
patient clinically requires continued ETP placement. Requires
the determination to be in writing and provided to the patient
and patient's advocate within three business days of the
meeting.
15.Requires a recommendation be made to the FNAP or FNAT to
transfer a patient out of an ETP if at any point during ETP
placement a patient's treatment team determines the patient no
longer clinically requires ETP treatment.
16.Allows the process of assessment, determination, and
documentation outlined above to continue until the patient no
longer clinically requires ETP treatment or until the patient
is discharged from the state hospital.
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17.Defines "FNAP" as a panel that consists of a psychiatrist, a
psychologist, and the medical director of the hospital or
facility, none of whom are involved in the patient's treatment
or diagnosis at the time of the hearing or placement meetings.
Defines "FNAT" as a panel of psychologists with expertise in
forensic assessment or violence risk assessment, each of whom
are assigned an ETP case or group of cases. Defines "patient
at high risk of most dangerous behavior" as an individual who
has a history of physical violence and currently poses a
demonstrated danger of inflicting substantial physical harm
upon others in an inpatient setting, as determined by the
in-depth violence risk assessment.
FISCAL EFFECT : The current version of this bill has not been
analyzed by a fiscal committee.
PRIOR VOTES : Prior votes not applicable to current version.
COMMENTS :
1.Author's statement. According to data from DSH, violent acts
by state hospital patients have increased substantially in
recent years, including the tragic homicide of Napa
psychiatric technician Donna Gross in 2010, as well as patient
murders at Patton in 2013 and Atascadero in 2014. In 2012,
there were nearly 7,000 combined incidents of violence against
both staff and patients. Clearly, there is much work to be
done to ensure that state hospitals are providing a safe and
secure environment for both staff and patients alike. This
bill expands the range of available clinical treatment by
establishing ETPs for patients determined to be at the highest
risk for violence. The goal of ETPs is to deliver
concentrated, evidence-based clinical therapy and treatment in
a secure environment designed to improve these patients'
conditions so that they may be safely returned to the standard
treatment environment. Providing these individuals with
enhanced treatment apart from the general population will
protect state hospital staff and patients, decrease the level
of violence, and provide more effective treatment to those
patients with the most aggressive behavior.
2.Background. According to DSH, the state hospital patient
population has shifted over the past 20 years, from a 20
percent forensic population in 1994 to the current 96 percent.
Forensic patients are committed for a variety of reasons,
including IST, NGI, mentally disordered offenders (MDO), and
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SVP. There are 4,967 patients at Atascadero, Coalinga,
Metropolitan, Napa, and Patton state hospitals comprising
1,350 NGI; 1,283 IST; 1,154 MDO; 897 SVP; 258 mentally ill
California Department of Corrections and Rehabilitation
commitments; and 25 mentally disordered sex offenders. DSH
states that despite the significant change, there is no
current legal, regulatory, or physical infrastructure in place
for state hospitals to effectively and safely treat patients
who have demonstrated severe psychiatric instability or
extremely aggressive behavior.
3.Incidents of violence. According to DSH, in 2013, there were a
total of 3,344 patient-on-patient assaults and 2,586
patient-on-staff assaults at state hospitals. Of the total
patient population, 62 percent are non-violent, 36 percent
committed 10 or fewer violent acts, and 2 percent committed 10
or more violent acts. Of all the violent acts committed, 65
percent are committed by those with 10 or fewer violent acts,
and 35 percent are committed by those with 10 or more violent
acts. A small subset of the population, 116 people, commits
the majority of aggressive acts. Assaults for the previous
years are as follows: 3,803 patient-on-patient and 3,026
patient-on-staff in 2012; 4,022 patient-on-patient and 2,814
patient-on-staff in 2011; and 4,627 patient-on-patient and
2,703 patient-on-staff in 2010.
The Division of Occupational Safety and Health, known as
Cal/OSHA, within the California Department of Industrial
Relations, has had significant and ongoing involvement with
DSH as a result of insufficient protections for staff.
According to a Los Angeles Times article from March 2, 2012,
Cal/OSHA has issued nearly $100,000 in fines against Patton
and Atascadero, alleging that they have failed to protect
staff and have deficient alarm systems. These citations are
similar to citations levied in 2011 against Napa and
Metropolitan. Cal/OSHA found an average of 20 patient-caused
staff injuries per month at Patton from 2006 through 2011 and
eight per month at Atascadero from 2007 through 2011,
including severe head trauma, fractures, contusions,
lacerations, and bites. DSH states they have been working
closely with Cal/OSHA to resolve the issues and take all
necessary corrective measures to protect staff at all of the
state hospital facilities.
4.Enhanced treatment unit (ETU) pilot project. DSH issued a
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report in May 2013, Enhanced Treatment Unit: Annual Outcome
Report, on the pilot project at Atascadero, which has operated
since December 2011, but does not allow for locked doors. The
goal of the ETU is to decrease psychiatric symptoms of some of
the most violent patients in order to enable DSH to
simultaneously assist the patients in their recovery, thereby
increasing the safety of the facility. Patients must meet
certain criteria, based on the patient's mental illness and
psychiatric symptoms, before being admitted to the ETU. DSH
reviews patient referrals to determine if patients meet the
following entrance criteria:
a. The patient engages in pathology-driven
behaviors;
b. The patient engages in recurrent
aggressive behaviors that have been unresponsive to
mainstream therapeutic interventions; or,
c. The patient commits a serious
assaultive act that results in serious injury.
The report concludes that the ETU has been successful in
decreasing aggressive incidents and that the program as a
whole is likely effective. Some of the contributing factors
cited include added staff with expertise in treating difficult
patients and decreased staff-to-patient ratios; added presence
of the Department of Police Services (Atascadero state
hospital law enforcement); and the "calm milieu" of the ETU,
which is attributed to the added staff with greater expertise
in treating difficult and violent patients, i.e. the staff
reacts to an incident in a manner that does not escalate the
situation that would result in a violent act. While
successful, DSH states that the Atascadero ETU accepts only
those with Axis 1 diagnoses, such as schizophrenia, major
depression, bipolar, and schizoaffective disorder. The
Atascadero ETU intentionally avoids patients with Axis 2
diagnoses, which are various types of personality disorders
that are often present in the patients involved in predatory
violence. Patients with Axis 2 diagnoses have been involved in
three recent murders of staff and patients, and are the
patients the ETPs will treat.
5.Report on inmates in state hospitals. According to an article
published in the Los Angeles Times on May 30, 2014, "Report
faults prison care of state's mentally ill inmates," a report
filed in U.S. District Court by special master Matthew Lopes
indicates that state hospitals returned some patients to
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prison too soon, drugged instead of counseled patients, and
only rarely gave one-on-one therapy. Atascadero was noted to
have discharged prisoners based on length of stay rather than
on their mental conditions and immediately dropped staffing
levels and access to group therapy once federal oversight of
the hospital ended. The report further indicates that
psychiatrists feared retaliation from administrators if they
did not sign discharge papers even though they may have felt
that prisoners required more treatment. The report cites the
use of seclusion and restraints to curb violence, indicating
that patients were strapped to their beds 76 times during an
eight-month period in 2013, usually for less than 24 hours but
in some cases for nearly four days.
6.Double referral. This bill has been double referred. Should it
pass out of this committee, it will be referred to the Senate
Public Safety Committee.
7.Prior legislation. AB 2399 (Allen), Chapter 751, Statutes of
2012, required each of the five state hospitals to update its
injury and illness prevention plan (IIPP) at least once a
year, establish an IIPP committee to provide recommendations
for updates to the plan, and develop an incident reporting
procedure for assaults on employees.
SB 60 (Evans) of 2011 would have required the former
Department of Mental Health (now DSH) to conduct a security
and violence risk assessment, as specified, of each patient
upon admission to a state hospital. SB 60 was held in the
Assembly Appropriations Committee.
SB 391 (Solis), Chapter 294, Statutes of 1997, provided for
patient risk assessments for inmates committed to Napa or
Metropolitan for certain Penal Code violations and requires
patients subject to assessments who are determined to be a
high security risk to be treated in the most secure state
hospital facilities.
8.Support. The sponsors of the bill argue that ETPs will provide
additional individualized care to patients with histories of
highly aggressive behavior, until they are deemed safe to
return to the general population, in the safest possible
treatment environment while upholding patients' rights.
9.Opposition. Disability Rights California (DRC) argues that
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this bill would allow patients to be locked in a room similar
to a prison cell without being afforded adequate due process,
such as a hearing before a judge with appointed counsel and
without the ability to appeal placement in an ETP. DRC also
states that many provisions in this bill are vague and
overbroad, giving great deference to DSH with little or no
oversight or explanation of terms.
10.Policy comments.
a. Are provisions too broad? Opponents raise concerns
about certain provisions, such as "when clinically
indicated" (in relation to when a patient's door may be
locked) and "standard forensic methodologies" (to
indicate that a psychologist or psychiatrist met the
threshold standard for determining a patient requires ETP
treatment). Patient advocates fear that absent an
adequate due process for the patient, including the right
to appeal referral to an ETP, DSH will arbitrarily define
those terms. DSH staff has indicated that ETPs will be
based on evidence-based practices, which have been
submitted for peer review to CNS Spectrums. In line with
this intent, the author may wish to reference specific
tools and/or criteria for forensic methodologies and
clinical indication.
b. Can ETPs be considered seclusion? Though this bill
indicates that locked doors will not be considered
seclusion, a 1992 report, On the Seclusion of Psychiatric
Patients (Brown and Tooke), found instances of seclusion
to manage workload when too many agitated patients were
admitted and during times when staffing was low on
evenings, nights, weekends, or at changes of shifts,
suggesting that ward conditions rather than patient
condition governs seclusion. A 2004 study from the
University of Ottawa, The Mentally Ill and Social
Exclusion: A Critical Examination of the Use of Seclusion
from the Patient's Perspective, cited patients' wide
array of negative emotions associated with their
seclusion, such as fear, anger, sadness, shame, and
feeling abandoned. Though this bill specifies that,
except for externally locking doors, ETP patients will be
afforded the same rights as general population patients,
the author may wish to clarify how an ETP will differ
from seclusion.
11.Technical amendment.
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11
a. On page 12, line 26, delete "(2)" and insert:
(1)
SUPPORT AND OPPOSITION :
Support: SEIU Local 1000 (sponsor)
Union of American Physicians and Dentists/AFSCME-Local
206
California Association of Psychiatric Technicians
(sponsor)
American Federation of State, County and Municipal
Employees Local 2620
Oppose: Disability Rights California
Legal Services for Prisoners with Children
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