BILL ANALYSIS Ó
AB 1193
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Date of Hearing: April 28, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 1193
(Eggman) - As Introduced February 27, 2015
SUBJECT: MENTAL HEALTH SERVICES: ASSISTED OUTPATIENT TREATMENT
KEY ISSUES:
1)GIVEN THAT A NUMBER OF COUNTIES HAVE OPTED TO FULLY IMPLEMENT
THE ASSISTED OUTPAITENT TREATMENT PROGRAM (AOT), ALSO KNOWN AS
"LAURA'S LAW," SHOULD ALL COUNTIES IN THE STATE BE REQUIRED TO
OFFER AOT, UNLESS THEY OPT OUT OF THE REQUIREMENT TO DO SO?
2)SHOULD ALL COUNTIES BE REQUIRED TO ADOPT THE AOT PROGRAM
WITHOUT HOLDING ANY PUBLIC HEARINGS, UNLESS THEY DECIDE NOT TO
OFFER THE PROGRAM?
3)SHOULD THE JANUARY 1, 2017 DATE, WHEN THE INVOLUNTARY
OUTPATIENT MENTAL HEALTH TREATMENT PROGRAM DEMONSTRATION
PROJECT IS SCHEDULED BY STATUTE TO EXPIRE, BE EXTENDED UNTIL
JANUARY 1, 2022, FIVE YEARS AFTER ITS CURRENT SUNSET DATE?
4)SHOULD ANY SUPERIOR COURT JUDGE BE ABLE TO INITIATE THE
PROCESS FOR OBTAINING A COURT ORDER FOR ASSISTED OUTPATIENT
TREATMENT OF A PERSON APPEARING BEFORE THE JUDGE, EVEN THOUGH
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THE JUDGE MAY NOT BE FAMILIAR WITH EITHER THAT PERSON'S MENTAL
HEALTH HISTORY, OR ALL OF THE OPTIONS FOR LESS INTRUSIVE
MENTAL HEALTH TREATMENT PROGRAMS THAT MAY BE AVAILABLE IN THE
COUNTY?
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,
but requires the county wishing to offer the program to make
certain findings, including that no voluntary mental health
program serving adults, and no children's mental health program,
will be reduced as a result of the implementation of AOT. The
program has been authorized for over 10 years and a number of
small and large counties have either implemented AOT, or
approved implementation: Nevada, Yolo, San Diego, Orange, San
Francisco, Los Angeles, Contra Costa, Placer, and Mendocino.
Given the positive, but somewhat limited "on the ground"
experience with AOT in California, the bill proposes three
significant changes to the program. First, it makes AOT an
opt-out program, allowing a county that does not wish to
implement the program to pass a resolution of the county board
of supervisors stating the reasons for opting out and any facts
or circumstances relied on in making that decision. Second, it
extends for five years the date when the program is set to
sunset, from January 1, 2017 until January 1, 2022. Third, it
allows any superior court judge to request that the mental
health director evaluate the person for AOT. This bill is
sponsored by the California Psychiatric Association and
supported by California Chapter of the American College of
Emergency Physicians, California Hospital Association, NAMI
Contra Costa County, and the National Association of Social
Workers. It is opposed by the California State Association of
Counties (Oppose unless amended), California Association of
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Social Rehabilitation Agencies, County Behavioral Health
Directors Association of California (Oppose unless amended),
Disability Rights California, and Urban Counties Caucus (Oppose
unless amended).
SUMMARY: Delete the provisions in current law that authorize,
but do not require counties in the state to participate in the
Assisted Outpatient Treatment Demonstration Project Act of 2002,
known as Laura's Law, extend the repeal date of January 1, 2017
until January 1, 2022, and allow any superior court judge to
refer a person appearing before the judge for AOT evaluation.
Specifically, this bill:
1)Deletes the provisions that authorize a county to participate
in the Assisted Outpatient Treatment Demonstration Project Act
of 2002, and instead requires all counties with available
funding to implement the program, unless they opt out of
implementation.
2)Extends the January 1, 2017, repeal date for the Assisted
Outpatient Treatment Demonstration Project Act of 2002 until
January 1, 2022, thereby extending the program for an
additional five years.
3)Authorizes a judge in a superior court to request that the
county mental director investigate whether it would be
appropriate to file a petition seeking a court order for AOT
relating to a person who appears before that judge.
EXISTING LAW:
1)Permits counties to provide AOT for people with serious mental
illnesses when a court determines that a person's recent
history of hospitalizations or violent behavior, and
noncompliance with voluntary treatment, indicates the person
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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 a court, after finding that an individual meets the
criteria for assisted outpatient treatment, and there is no
appropriate and feasible less restrictive alternative, 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).)
4)Sunsets this authorization on January 1, 2017. (Section
5349.5(a).)
5)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).)
6)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).)
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7)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
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.)
8)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.)
9)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
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restrictive level of care necessary to ensure the person's
recovery and stability in the community. The law is only
operative in those counties where the county board of
supervisors, by resolution or budget action, authorizes its
application and makes a finding that no voluntary mental health
program serving adults, and no children's mental health program,
will be reduced in order to implement the law.
According to the author, "Assisted outpatient treatment is a
community-based treatment program to assist individuals who, as
a result of their severe mental illness, are unable to access
community mental health services voluntarily. In fact, AOT is a
less restrictive alternative to involuntary hospitalization,
where an individual suffering from a severe mental illness is
detained for up to 72 hours if they have presented a danger to
themselves or others."
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
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
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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
AOT commitments.
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In the past ten years that AOT has been authorized, eight
counties - Nevada, Yolo, San Diego, Orange, San Francisco,
Contra Costa, Placer, and Mendocino -- have chosen to fully
implement the program. (A ninth county, Los Angeles, 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.
County hearings - one person's bureaucratic hurdle is another
person's public process. According to the author, the
procedural requirements in current law are an obstacle for
counties that wish to implement AOT programs. The author
states:
Since Assisted Outpatient Treatment (AOT) was approved by
the legislature in 2002, only nine counties have
implemented it. . . . The current opt-in process makes AOT
implementation difficult for counties to participate in,
evidences [sic.] by the fact that only a fraction of
counties have implemented AOT. Implementing AOT statewide
will ensure that those at highest risk for hospitalization
can obtain the necessary treatment services to keep them in
the community. While this bill implements Laura's Law
statewide it does provide for counties to retain control by
allowing them to opt out of participation in Laura's Law if
they so choose.
While it is true, as the author contends, that only a small
percentage of the counties in the state have gone through the
process to approve AOT, it is unclear why others have not done
so (i.e. an issue of procedure or policy). As the Duke Study
shows, AOT programs require "a substantial commitment of
treatment resources to be effective." It could be that counties
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do not have the personnel or financial resources to implement
AOT in a manner that would be successful. If so, then it is
appropriate for counties not to adopt the program.
Many counties may have considered and rejected implementation of
AOT. This bill would force those counties to either implement a
program they have previously rejected, or to hold another public
hearing to reject adoption of the program they have already
rejected in a public process. As the Urban Counties Coalition
writes in opposition to the bill (unless it is amended to revert
to the opt-in system in current law):
[W]e are opposed to the provision which would make it
mandatory for every county to adopt Laura's Law unless the
county elects not to participate through a resolution.
Since the enactment of Laura's Law, it has been permissive
due to the potential additional costs and policy issues
that can vary among counties. In urban counties, 5 counties
have adopted Laura's Law in the past two years (Contra
Costa, Los Angeles, Orange, San Diego, and San Francisco),
therefore, we do not believe this section of the bill is
necessary. In addition, this bill would mandate counties
adopt Laura's Law which would create a new burden on
counties that may have already heard this issue recently in
public hearings.
Opt-in versus opt-out. Despite the fact that AOT remains
controversial in some communities and certainly some advocacy
groups, the author seeks to remove the provision in current law
which makes the program optional ("upon adoption of a resolution
or budget act by the board of supervisors of a county and 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"). Instead, this bill would make
the program mandatory, unless the county board of supervisors
adopts a resolution opting out of the program. While the
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author's goal of statewide adoption of AOT is admirable, clearly
not all counties wish to adopt the program. In light of the
author's well-meaning desire to encourage counties to consider
adoption of the program while acknowledging the right of
counties to reject the program, perhaps it would be appropriate
to require a county that has not yet held a public hearing to
consider adoption of AOT to do so. This would promote county
consideration of the program, while taking into consideration
the fact that some counties have already determined that AOT is
inappropriate and should not be forced to reopen their
decisions. Based upon these concerns, the following amendment
is suggested to the author:
Page 14, at lines 14 - 17: strike out in their entirety
Page 14, at line 18, strike out "circumstances relied on in
making that decision." And insert the following:
This article shall be operative in those counties in which
the county board of supervisors, by resolution or through
the county budget process, authorizes its application.
(a) Any county which has not held a public hearing by
January 1, 2017 to determine whether this article shall
be operative shall do so by January 1, 2018. At the
hearing, the board of supervisors shall consider the
options available in the county for providing services to
persons whose recent history of hospitalization or
violent behavior, and noncompliance with voluntary
treatment, indicate that they may be likely to become
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dangerous or gravely disabled, including but not limited
to the following:
1) Options for providing services other than
court-ordered outpatient treatment.
2) Whether any voluntary mental health
program serving adults, or any children's mental
health program, may be reduced as a result of the
implementation of this article.
Extension 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:
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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 and the importance of receiving more data
about the implementation successes and failures, the Committee
may find it prudent to reauthorize this program for another
relatively short period, such as the five years suggested by the
author.
Additional portal necessary for entry into AOT via the county
courts? 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
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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.
f) A peace officer, parole officer, or probation officer
assigned to supervise the person who is the subject of the
petition. (5346(b)(2).)
All of these individuals are very familiar with either the
person who is the potential subject of an AOT petition, or the
county's mental health resources, or both. On the other hand,
this bill would authorize a "judge of a superior court before
whom the person who is the subject of the petition appears" to
request the county mental director to investigate whether it
would be appropriate to file a petition for AOT relating to that
person. A judge (who could be presiding over a traffic, family,
juvenile, probate, or criminal matter) may not be familiar with
either the person and his or her mental health history, or the
resources available for mental health treatment of that person
in the county. Therefore, the Committee may question whether
this language is too broad and whether it would be more
appropriate to limit this provision to judges who are familiar
with the mental health background of the individual appearing
before them and the mental health resources available in their
county.
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Disability Rights California writes, "Existing law provides a
list of individuals who may request that a county mental health
department file an AOT petition, based on the individual's
knowledge of and connection to the person who will be the
subject of the petition. This bill would add to this list a
Superior Court judge before whom the subject of the petition
appears. A judge presiding over an unrelated legal matter would
not necessarily have sufficient information about the individual
who is subject to the petition to request that an AOT petition
be filed. Adding to the existing list of people who can request
a petition increases the possibility that the petitions may be
filed without adequate basis, therefore further limiting
individual rights."
Based upon these concerns, the following amendment is suggested
to the current language in the bill:
(G) A judge of a superior court court's mental health
court, reentry court, or other collaborative justice court
available for improving the mental health of the defendant,
or a probate court before whom the person who is the
subject of the petition appears as the subject of a
proceeding pursuant to Section 5352.
Related pending legislation. AB 59 (Melendez) Removes the
sunset on Laura's Law so that the program is indefinitely
extended and eliminates the requirement that the board of
supervisors in a county must find, 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, and allows the
professional staff of the facility where a person has been
detained for involuntarily inpatient treatment to recommend a
petition for AOT for that person.
AB 193 (Maienschein) Allows probate courts to recommend a
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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 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
California Psychiatric Association (sponsor)
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California Chapter of the American College of Emergency
Physicians
California Hospital Association
NAMI Contra Costa County
National Association of Social Workers
Opposition
California State Association of Counties (Oppose unless amended)
California Association of Social Rehabilitation Agencies
County Behavioral Health Directors Association of California
(Oppose unless amended)
Disability Rights California
Urban Counties Caucus (Oppose unless amended)
Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334
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