BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session AB 193 (Maienschein) - Mental health: conservatorship hearings ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: July 6, 2015 |Policy Vote: JUD. 7 - 0 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: Yes | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: August 17, 2015 |Consultant: Jolie Onodera | | | | ----------------------------------------------------------------- This bill meets the criteria for referral to the Suspense File. Bill Summary: AB 193 would authorize a probate court to order an investigation and recommend a Lanterman-Petris-Short (LPS) conservatorship for an individual for whom a conservatorship has been established under the Probate Code, as specified. This bill would require the county officer providing the conservatorship investigation to file a copy of his or her report with the court making the recommendation. Fiscal Impact: Conservatorship investigations : Potentially significant non-reimbursable local costs (Local Funds) in the mid to high hundreds of thousands of dollars annually for county public guardians to conduct a greater number of conservatorship investigations and reports. Any increase in local costs is not estimated to be eligible for state reimbursement as the Commission on State Mandates (CSM) has determined that state-mandated activities on public guardians are triggered AB 193 (Maienschein) Page 1 of ? only after a county's discretionary decision to establish the office of the public guardian, as specified, and the investigations would be upon order of the court. LPS conservatorship placements and services : Potentially significant to major increases in non-reimbursable local costs (Local Funds) to county behavioral health and mental health departments for additional LPS placements, services, and treatment. The magnitude of these costs would be dependent on the number of new conservatorships and the level of services and treatment provided to each conservatee, which is unknown at this time. To the extent a number of LPS conservatees are Medi-Cal eligible could result in increases in medically necessary specialty mental health services including but not limited to crisis residential treatment and medication support services, resulting in increased Medi-Cal program costs (Federal Fund/General Fund). DSH impact : For LPS conservatorship placements into Department of State Hospital (DSH) facilities, counties would be responsible for all treatment costs. The counties are also billed for actual bed usage according to the bed rate structure developed by DSH. Background: Existing law pursuant to the Probate Code sets forth the judicial procedure required in order to establish a probate conservatorship, for cases in which someone is no longer able to handle his or her own financial and/or personal affairs, and the court appoints an individual (the conservator) to act on behalf of the incapacitated person (the conservatee). The establishment of a conservatorship restricts the conservatee's powers over financial and/or personal care decisions. (Probate Code §§ 1800-2893.) Alternatively, LPS conservatorships are established under the Lanterman-Petris-Short Act and are governed by the Welfare and Institutions Code (WIC). For this type of conservatorship, a conservator is appointed to represent a person who is "gravely disabled" as a result of a mental disorder or impairment by chronic alcoholism, and is unwilling to accept or is incapable of accepting treatment voluntarily. Existing law defines "gravely disabled" to mean that a person is, as a result of a mental disorder or, as a result of impairment by chronic alcoholism, unable to provide for their basic personal needs for food, clothing or shelter. AB 193 (Maienschein) Page 2 of ? Under existing law anyone who, as a result of a mental health disorder, who is either a danger to self or to others or is gravely disabled, can be involuntarily hospitalized in a facility for 72 hours of evaluation and treatment without court intervention (WIC § 5150.) In the case of individuals who are a danger to themselves or others, a peace officer, professional person in charge of a facility, staff member, or other specified professional who has probable cause, may take the person into custody. If there is probable cause to believe that a person is gravely disabled, any person may make the application to the responsible county agency or person. If specified criteria are met, the initial 72-hour hold may be extended up to 30 days. An LPS conservatorship can only be recommended to a conservatorship investigator by a professional from a county agency or facility providing intensive treatment or evaluation services. A conservatorship investigator must investigate all available alternatives to an LPS conservatorship, and make a recommendation to the court for or against conservatorship. This bill would additionally allow a probate court that is overseeing a probate conservatorship to recommend an LPS conservatorship to the investigator. Proposed Law: This bill would authorize a probate court to order an investigation and recommend an LPS conservatorship for an individual for whom a probate conservatorship has been established, as follows: Authorizes a court, after a hearing attended by the proposed conservatee's counsel, to recommend an LPS conservatorship and order the county officer providing conservatorship to conduct an investigation when the court, in consultation with a physician or psychologist providing comprehensive evaluation or intensive treatment, in a probate conservatorship hearing determines, based on evidence presented to the court, that a person for whom a probate conservatorship has been established may be gravely disabled as a result of a mental disorder or impairment by chronic alcoholism and is unwilling or incapable of accepting treatment voluntarily. Requires the officer, if the officer providing the conservatorship investigation concurs with the AB 193 (Maienschein) Page 3 of ? recommendation of the court, to petition the appropriate superior court to establish the LPS conservatorship. Requires the officer providing the conservatorship investigation to file his or her report with the court that made the conservatorship investigation. Requires an existing probate conservator, if the conservatorship is recommended by the court, to disclose any records or information that may facilitate the investigation. Related Legislation: AB 1725 (Maienschein) 2014 was similar to this measure. This bill was held on the Suspense File of the Assembly Committee on Appropriations. Staff Comments: By requiring county officers (public guardians) to conduct an investigation upon the recommendation of the probate court and provide a copy of their reports to the court, this bill imposes a higher level of service on local agencies. While it is unknown with certainty how many referrals for investigations will result should this bill be enacted, based on a survey of counties, it is estimated that costs for additional investigations could cost in the mid to high hundreds of thousands of dollars annually. Staff notes that any increase in local costs is not considered to be eligible for state reimbursement, as the CSM determined in its statement of decision of Public Guardianship Omnibus Conservatorship Reform (07-TC-05), that although the provisions of the statute did in fact impose new duties on county public guardians, they are triggered by the county's discretionary decision to create the office of public guardian and therefore, the requirements do not create a state-mandated program within the meaning of Article XIIIB, section 6 of the California Constitution. Specifically, Government Code § 27430 states the following: (a) In any county the board of supervisors may by ordinance create the office of the public guardian and subordinate position which may be necessary and fix compensation therefor; and, (b) The board of supervisors may by ordinance terminate the office of public guardian. The decision to create the office of public guardian is a local AB 193 (Maienschein) Page 4 of ? discretionary decision based on the county's parens patriae power "to protect incompetent persons." Local legislative bodies have broad discretion in the exercise of their powers, both in determining what the interests of the public require and what measures are reasonably necessary for the protection of those interests. The courts have determined that reimbursement is not required when requirements are triggered by local government's voluntary decision to participate in a program. In addition to the county investigation and administrative costs, this bill could potentially result in a greater number of LPS conservatorships established, subsequently resulting in an increased number of LPS conservatees requiring facility placement and the provision of services and intensive treatment. It is unknown how many investigations initiated by referral of the probate court will ultimately result in a county investigator recommendation for an LPS conservatorship, but placement and services/treatment costs for even a few individuals is likely to exceed several hundred thousand dollars annually. To the extent a percentage of the newly established LPS conservatees is eligible for the Medi-Cal program could also result in increased federal and state funding for these costs for services provided in appropriate settings. -- END --