BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON APPROPRIATIONS
                             Senator Ricardo Lara, Chair
                            2015 - 2016  Regular  Session

          AB 193 (Maienschein) - Mental health:  conservatorship hearings
          
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          |Version: July 6, 2015           |Policy Vote: JUD. 7 - 0         |
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          |Urgency: No                     |Mandate: Yes                    |
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          |Hearing Date: August 17, 2015   |Consultant: Jolie Onodera       |
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          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  







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            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.








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          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  








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               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  








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          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.


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