BILL ANALYSIS Ó AB 59 Page 1 Date of Hearing: April 28, 2015 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AB 59 (Waldron) - As Amended April 20, 2015 SUBJECT: MENTAL HEALTH SERVICES: ASSISTED OUTPATIENT TREATMENT KEY ISSUES: 1)SHOULD THE JANUARY 1, 2017, DATE, WHEN THE INVOLUNTARY ASSISTED OUTPATIENT MENTAL HEALTH TREATMENT PROGRAM DEMONSTRATION PROJECT (AOT) IS SCHEDULED BY STATUTE TO EXPIRE, BE DELETED SO THAT INVOLUNTARY OUTPATIENT MENTAL HEALTH TREATMENT WOULD BE AUTHORIZED FOR AN INDEFINITE PERIOD IN ALL COUNTIES OF THE STATE, DESPITE LACK OF EMPIRICAL OR SCIENTIFIC EVIDENCE TO SUPPORT SUCH A CHANGE? 2)SHOULD THE REQUIREMENT FOR ANY COUNTY THAT ELECTS TO OFFER AOT TO MAKE A FINDING, PRIOR TO AUTHORIZING AOT, THAT OTHER MENTAL HEALTH PROGRAMS, INCLUDING BUT NOT LIMITED TO CHILDREN'S MENTAL HEALTH PROGRAMS, WILL NOT BE REDUCED AS A RESULT OF THE IMPLEMENTATION OF AOT BE ELIMINATED? 3)SHOULD THE PROFESSIONAL STAFF OF AN AGENCY OR FACILITY THAT PROVIDES A PERSON WITH INVOLUNTARY INPATIENT TREATMENT BE AUTHORIZED, AFTER THE PERSON HAS BEEN RELEASED FROM THAT INPATIENT INVOLUNTARY TREATMENT FACILITY, TO REQUEST THE AB 59 Page 2 COUNTY MENTAL HEALTH DIRECTOR TO FILE A PETITION FOR A COURT ORDER, REQURING THE PERSON TO PARTICIPATE IN AOT? SYNOPSIS The Involuntary Assisted Outpatient Mental Health Treatment Program (AOT), also known as "Laura's Law," was initially adopted in 2001, reauthorized in 2006, and reauthorized again in 2012. The law allows any county that wishes to provide "assisted outpatient treatment services," as defined, to do so. In the past 12 years that AOT has been authorized, nine counties - Nevada, Yolo, San Diego, Orange, Los Angeles, San Francisco, Contra Costa, Placer, and Mendocino - have chosen to implement it. In addition, according to the author, there are formal processes in motion that may lead to adoption before the Board of Supervisors in the following counties: El Dorado, Contra Costa, San Mateo, Kern, Santa Barbara, and Ventura. Indeed, studies of involuntary outpatient programs have shown that the programs have impressive results. For example, a Duke University/North Carolina State University study in the 1990s showed that "subjects who underwent sustained periods of outpatient commitment beyond that of the initial court order had approximately 57% fewer readmissions and 20 fewer hospital days than control subjects." And a 2013 study showed that New York state's AOT law, "Kendra's Law," resulted in substantial cost savings. Still, the program is controversial and a number of groups still oppose it on philosophical grounds and argue that a county's commitment to provide intensive services, not the coercive nature of the services themselves, are what makes a treatment program successful. This bill does three things. First, it permanently deletes the January 1, 2017 sunset on the law so it can be extended indefinitely, which may be premature. Second, it eliminates the requirement for any county that elects to offer AOT to make a finding, prior to authorizing the program, that other mental health programs, including but not limited to children's mental health services, will not be reduced as a result of implementation of AOT, which undermines AB 59 Page 3 the need to assess community needs. Finally, it permits, in any county that has elected to implement the program, the professional staff of the facility where a person has been detained for involuntarily inpatient treatment to request that the county mental health director file a petition for a court order requiring that the person participate in AOT, which may be unnecessary. This bill is supported by NAMI Contra Costa County, but opposed by Disability Rights California and the California Association of Mental Health Peer Run Organizations. SUMMARY: Deletes the repeal date of January 1, 2017, of the AOT program so that the program is authorized to continue for an indefinite basis and makes other changes. Specifically, this bill: 1)Deletes the January 1, 2017, repeal date for the Assisted Outpatient Treatment Demonstration Project Act of 2002, thereby extending the program indefinitely. 2)Eliminates the requirement for any county that elects to offer AOT to make a finding, prior to authorizing the program, that other mental health programs, including but not limited to children's mental health services, will not be reduced as a result of implementation of AOT. 3)Authorizes the professional staff of the agency or facility which has provided a person with intensive inpatient treatment to request that the county mental health director file a petition in the superior court requiring the person to participate in AOT. EXISTING LAW: 1)Permits counties to provide AOT for people with serious mental illnesses when a court determines that a person's recent AB 59 Page 4 history of hospitalizations or violent behavior, and noncompliance with voluntary treatment, indicates the person is likely to become dangerous or gravely disabled without the court-ordered outpatient treatment. (Welfare and Institutions Code Section 5346. All further statutory references are to this Code, unless otherwise indicated.) 2)Requires the board of supervisors of a county, in order to authorize an AOT program in the county to adopt the program by resolution or through the county budget process and make a finding that no voluntary mental health program serving adults, and no children's mental health program, may be reduced as a result of its implementation. (Section 5349.) 3)Allows the following individuals to request that the county mental health director file a motion for a court order requiring a person to participate in AOT: a) Any person 18 years of age or older with whom the person who is the subject of the petition resides. b) Any person who is the parent, spouse, or sibling or child 18 years of age or older of the person who is the subject of the petition. c) The director of any public or private agency, treatment facility, charitable organization, or licensed residential care facility providing mental health services to the person who is the subject of the petition in whose institution the subject of the petition resides. d) The director of a hospital in which the person who is the subject of the petition is hospitalized. e) A licensed mental health treatment provider who is either supervising the treatment of, or treating for a AB 59 Page 5 mental illness, the person who is the subject of the petition. f) A peace officer, parole officer, or probation officer assigned to supervise the person who is the subject of the petition. (5346(b)(2).) 1)Allows a court, upon petition of the county mental health director and after finding that an individual meets the criteria for assisted outpatient treatment and there is no appropriate and feasible less restrictive level of care necessary to ensure the person's recovery and stability in the community, to order the individual to receive assisted outpatient treatment for an initial period not to exceed six months. If the director of the assisted outpatient program determines that the individual requires further assisted outpatient services, requires that director, prior to expiration of the time period of the treatment, to apply to the court for an extension of the services, not to exceed 180 days. (Section 5346(d), (g).) 2)Sunsets this authorization on January 1, 2017. (Section 5349.5(a).) 3)Grants any person subject to a petition for an order of assisted outpatient treatment the right to legal counsel at all steps of the hearing process. (Section 5346(d)(4)(C).) 4)Requires the Department of Health Services to submit a report and evaluation to the Governor and the Legislature of all counties implementing an assisted outpatient treatment program by July 1, 2015. (Section 5349.5(b).) 5)Establishes the Lanterman-Petris Short Act (LPS Act), which authorizes a person to be involuntarily detained for inpatient mental health treatment when, as a result of a mental AB 59 Page 6 disorder, the person is a danger to him or herself or to others, or is "gravely disabled". Defines "gravely disabled" to mean a condition in which a person, as a result of a mental disorder, is unable to provide for his or her basic personal needs for food, clothing or shelter. (Sections 5008 (h)(1)(A) and 5150.) 6)Allows, under the LPS Act, a person who is gravely disabled to be involuntarily detained for further inpatient mental health treatment for an additional 14 days, as provided, which can be extended for 14 days if the person presents an imminent threat of taking his or her own life or 30 days if the county has authorized the program and the person remains gravely disabled. (Section 5250, 5257, 5260.) 7)Allows, under the LPS Act, a court to order an imminently dangerous person to be confined for further inpatient intensive health treatment for an additional 180 days, as provided. (Section 5300 et seq.) FISCAL EFFECT: As currently in print this bill is keyed fiscal. COMMENTS: The AOT Demonstration Project allows courts in participating counties to order a person into an AOT program if the court finds that the individual either meets existing involuntary commitment requirements pursuant to Section 5150 (is gravely disabled, or is a danger to self or others), or the person meets non-5150 criteria, including that the person has refused treatment; their mental health condition is substantially deteriorating; and AOT would be the least restrictive level of care necessary to ensure the person's recovery and stability in the community. The law is only operative in those counties in which the county board of supervisors, by resolution, authorizes its application and makes a finding that no voluntary mental health program serving AB 59 Page 7 adults, and no children's mental health program, was reduced in order to implement the law. According to the author, "'Laura's Law' provides family members with important tools for initiating outpatient treatment for severely mentally ill adults who are incapable of seeking help on their own. It helps to identify when a patient's condition is significantly worsening and to intervene before the patient becomes too ill and is subject to involuntary civil confinement. AB 59 will authorize county participation in the Assisted Outpatient Treatment Demonstration Project without requiring counties to make findings that no existing mental health programs will be reduced as a result of AOT implementation. This bill streamlines the process for a county to opt into Laura's law and removes a time consuming barrier to ensure more counties have access to mental health treatment." Indeed, studies of involuntary outpatient programs have shown that the programs have impressive results. For example, a Duke University/North Carolina State University study in the 1990s showed that "subjects who underwent sustained periods of outpatient commitment beyond that of the initial court order had approximately 57% fewer readmissions and 20 fewer hospital days than control subjects." That same study, however, showed that "sustained outpatient commitment reduced hospital readmissions only when combined with a higher intensity of outpatient treatment" and concluded that "use of outpatient commitment is not a substitute for intensive treatment; it requires a substantial commitment of treatment resources to be effective." Counties have a financial incentive to implement AOT programs, according to other recent studies. For example, a 2013 study showed that New York state's AOT law, "Kendra's Law," resulted AB 59 Page 8 in substantial cost savings. "In the New York City sample, net costs declined 43% in the first year after assisted outpatient treatment began and an additional 13% in the second year. In the five-county sample, costs declined 49% in the first year and an additional 27% in the second year." (Swanson et al, Am J Psychiatry 2013; 170:1423-1432.) County Experience with implementation of AOT. The AOT Demonstration Project was first implemented in Nevada County. According to the treatment provider that provides AOT services in Nevada County, Turning Point Community Programs, initiating the AOT process begins with a referral submitted by family members, relatives, cohabitants, treatment providers or their supervisors, or peace officers. If the person meets the AOT eligibility requirements, a preliminary care plan is developed. If the individual voluntarily engages with the treatment after initial contact, a petition is no longer necessary and the patient no longer meets the criteria for AOT referral. However if the client declines the preliminary care plan, the AOT team proceeds with a petition and a public defender is assigned to the client. The court must be notified within 10 days of the intervention, and a hearing must be set within five days of the filing of the petition and the judge either grants or rejects the AOT petition. If ordered, AOT is valid for up to 180 days. According to Nevada County, in the seven years the county has implemented Laura's Law, 37 AOT commitments have been ordered by the court, and six individuals have failed to complete their orders due to hospitalization, incarceration, or death. Nevada County indicates that the number of hospitalization days for program participants has been cut in half, and no patient has encountered problems with law enforcement since their commitment. In Orange County, two individuals have been ordered to fulfill an AOT commitment. The other county programs have been recently implemented and do not yet have any court ordered AB 59 Page 9 AOT commitments. In the past ten years that AOT has been authorized, nine counties - Nevada, Yolo, San Diego, Orange, San Francisco, Contra Costa, Placer, and Mendocino -- have chosen to fully implement it. (Los Angeles County has implemented AOT on a limited basis). In addition, according to the author, there are formal processes in motion that may lead to adoption before the Board of Supervisors in the following counties: El Dorado, Contra Costa, San Mateo, Kern, Santa Barbara, and Ventura. Removal of the sunset provision. The AOT program was originally scheduled to expire by law on January 1, 2008, but was reauthorized in 2006, and reauthorized again in 2012. The 2012 legislation, Assembly Bill 1569 (Allen, Chapter 441, Statutes of 2102) was controversial. It was opposed by all of the groups that oppose this bill, but also many others that do not oppose this bill that removes the sunset in its entirety, including the American Civil Liberties Union of California, California Council of Community Mental Health Agencies, California Mental Health Planning Council, Mental Health America of California, and the National Association for Rights Protection and Advocacy. Based upon the fact that fewer groups oppose this much more far-reaching bill, it appears that the AOT program is more widely accepted and less controversial that it was at one time, but is not without critics. Disability Rights California has "concerns about AOT programs and we believe that voluntary services are more effective and should be expanded, we believe that the sunset provision is important to protect the rights of people with mental health disabilities in California." Meanwhile, the California Association of Mental Health Peer Run Organizations questions whether AOT is as effective as less coercive alternative treatments and writes: AB 59 Page 10 Clearly it is the services that make the difference and produce positive results. Through the MHSA (Prop 63), California has put its money into a voluntary network of community services that are person centered and holistic and based on the recovery model. The results of a 2012 UCLA study of MHSA Full Service Partnerships found that every dollar spent on mental health services in California saved roughly $0.88 in costs to the criminal justice and health and housing services by reducing the number of arrests, incarcerations, ER visits, and hospitalizations. These same kinds of results were found in the Petris Center Evaluation, May 2010; a large reduction in homelessness, a rise in the proportion of consumers living independently, less use of mental health related emergency services, less incarcerations, and a rise in employment. AB 34 and 2034, the pilot programs that the full service partnerships are modeled on, produced the same kind of positive results. Given these concerns, the Committee may want to consider whether this bill's proposal to delete the January 1, 2017 sunset date and extend the program indefinitely is premature. Importance of a finding by the board of supervisors that other treatment programs will not be affected. Current law requires the board of supervisors of a county, in order to authorize an AOT program in the county, to adopt the program by resolution or through the county budget process and make a finding that no voluntary mental health program serving adults, and no children's mental health program, will be reduced as a result of its implementation. (Section 5349.) This bill would do away with that requirement. Disability Rights California writes, "Existing law requires the board of supervisors when implementing an AOT program make a AB 59 Page 11 finding that no voluntary mental health programs will be reduced as a result of the AOT program. This bill would remove that mandate, potentially threatening access and availability to mental health services for individuals who seek them on a voluntary basis." Given concerns among many consumers of health services, including mental health services, at the local level, the Committee may want to consider whether removal of this requirement is warranted. Parties who are authorized to request a petition to initiate AOT process. Current law allows specific individuals to request that the county mental health director file a motion for a court order requiring a person to participate in AOT: a) Any person 18 years of age or older with whom the person who is the subject of the petition resides. b) Any person who is the parent, spouse, or sibling or child 18 years of age or older of the person who is the subject of the petition. c) The director of any public or private agency, treatment facility, charitable organization, or licensed residential care facility providing mental health services to the person who is the subject of the petition in whose institution the subject of the petition resides. d) The director of a hospital in which the person who is the subject of the petition is hospitalized. e) A licensed mental health treatment provider who is either supervising the treatment of, or treating for a mental illness, the person who is the subject of the petition. AB 59 Page 12 f) A peace officer, parole officer, or probation officer assigned to supervise the person who is the subject of the petition. (5346(b)(2).) Disability Rights California writes, "Existing law provides that certain people who are involved in providing mental health treatment to an individual, including a licensed mental health treatment provider and the director of a hospital, public or private agency, treatment facility, charitable organization or licensed residential care facility, may request that the county mental health department file an AOT petition on behalf of that individual. This bill would add the "professional staff" of an agency or facility that provided involuntary treatment to an individual to that list. It is unclear who would constitute "professional staff" under this provision. To the extent this category goes beyond the existing requirements, it increases the possibility that the petitions may be filed without adequate basis, therefore further limiting individual rights." Related pending legislation. AB 1193 (Eggman) Mandates AOT in all counties, unless they opt out of the program by proclamation of the county board of supervisors, extends the sunset until 2022, and allows judges to recommend a petition for anyone appearing in the judge's court. AB 193 (Maienschein) - allows probate courts to recommend a referral for an LPS conservatorship to the county officer providing conservatorship investigations. Previous legislation. AB 2266 (Waldron, 2014) would have increased the maximum period of imposed outpatient treatment under the AOT Demonstration Project from six months to one year. AB 2266 failed in the Assembly Judiciary Committee. AB 59 Page 13 AB 1265 (Conway, 2013) would have increased the maximum period of imposed outpatient treatment under the AOT Demonstration Project from six months to one year. AB 1265 also failed in the Assembly Judiciary Committee. AB 1569 (Allen), Chapter 441, Statutes of 2012, extended authorization for "Laura's Law" to January 1, 2017 and required DHCS to submit a report to the Legislature regarding the program by July 1, 2015. AB 1421 (Thomson), Chapter 1017, Statutes of 2002, authorized counties to provide court-ordered outpatient treatment services for people with serious mental illnesses when a court finds that a person's recent history of hospitalizations or violent behavior, coupled with noncompliance with voluntary treatment, indicate the person is likely to become dangerous or gravely disabled without the court-ordered outpatient treatment. REGISTERED SUPPORT / OPPOSITION: Support NAMI - Contra Costa County Opposition California Association of Mental Health Peer Run Organizations AB 59 Page 14 Disability Rights California Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334