BILL ANALYSIS Ó
AB 1300
Page 1
Date of Hearing: April 28, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 1300
(Ridley-Thomas) - As Amended April 23, 2015
As Proposed to be Amended
SUBJECT: MENTAL HEALTH: INVOLUNTARY COMMITMENT
KEY ISSUE: SHOULD NON-DESIGNATED HOSPITALS AND THE PHYSICIANS,
AND PROFESSIONAL STAFF WHO WORK IN THOSE HOSPITALS, BE GIVEN
QUALIFIED IMMUNITY FOR THEIR DECISIONS RELATED TO THE EVALUATION
OF WHETHER A PERSON IS A DANGER TO SELF OR OTHERS AND THEREFORE
APPROPRIATELY DETAINED FOR A 72-HOUR MENTAL HEALTH HOLD TO
PROTECT NON-DESIGNATED HOSPITALS AND THEIR PROFESSIONAL STAFF
FROM ORDINARY NEGLIGENCE, BUT NOT FROM GROSS NEGLIGENCE OR
WANTON OR WILLFULL MISCONDUCT?
SYNOPSIS
This bill, co-sponsored by the California Hospital Association,
California Chapter of the American College of Emergency
Physicians, and California Emergency Nurses Association, makes a
number of changes, most of which are technical, to the law
governing involuntary commitment to mental health facilities
pursuant to Welfare and Institutions Code Sections 5150 and
5152. Many of the bill's technical aspects were addressed in
the analysis of the Assembly Health Committee, which recently
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approved the bill by an 18-0 vote (with one abstention). There
are two main issues before this Committee. First, should the
72-hour detention period for the hold pursuant to Section 5150
of the Welfare and Institutions Code start when the person is
detained by a peace officer, or when the person is admitted to a
designated facility for treatment? Second (and more
significantly), is it appropriate to provide qualified immunity
to non-designated hospitals (those which are not specifically
designated by the county (and therefore "designated facilities")
for evaluation of whether a person is a danger to self or
others, or is greatly disabled, and therefore appropriately
detained in the facility for a 72-hour hold for acute mental
health treatment? While existing law provides immunity to
public agencies (which includes public hospitals) and their
employees for the involuntary detention of persons, including
the enforcement and release of detainment to the extent that the
facility or employee acts in accordance with requirements of the
Lanterman-Petris-Short (LPS) Act in detaining a person, and
enforcing or releasing the detention (Government Code Section
856), no such immunity is provided to non-designated facilities
or their employees. The author and sponsors contend that the
immunity provisions for designated hospitals were drafted at a
time when the state hospital system was used for acute mental
health treatment and persons in mental health crisis were not
often seen in non-designated facilities. The situation has
changed in the past 52 years, according to the author, so that
non-designated facilities routinely encounter these patients and
need to make decisions about whether to request detention by law
enforcement, or release the patients. The bill originally
proposed that non-designated hospitals, physicians, and all
staff at the hospitals would be granted complete immunity from
liability in dealing with these patients. Opponents, including
the Consumer Attorneys of California and NAMI California,
reasonably observed that this is extremely broad immunity that
would immunize even grossly negligent acts from any civil
liability. With these concerns in mind, the author has agreed
to amend the bill to provide qualified immunity to
non-designated hospitals and certain personnel who encounter
persons who are in acute mental health crisis. The bill is
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supported by numerous hospitals and medical organizations. It
is opposed by Consumer Attorneys of California and NAMI
California and the California State Association of Counties and
the County Behavioral Health Directors Association have
expressed concerns about the bill. This analysis reflects the
bill as it is proposed to be amended.
SUMMARY: Makes numerous changes to the provisions regarding
evaluation procedures, terms and lengths of detention, and
criteria for release and transfer protocol related to the
involuntary detention of individuals and enacts a number of
provisions providing qualified immunity to a physician,
employee, or other staff person acting within the scope of his
or her official duties or employment for a designated facility
or nondesignated hospital from civil and criminal liability.
Among other things, this bill:
1)Defines "authorized professional" as a mental health
professional who is authorized in writing by a county to
provide services related to the evaluation, treatment, or
transfer of an individual who is a danger to himself, herself,
or others or who is gravely disabled.
2)Requires an authorized professional to have appropriate
training in mental health disorders and determination of
probable cause, and in providing services to persons with
mental health disorders.
3)Defines a "designated facility" as a facility or a specific
unit or part of a facility that is licensed or certified as a
mental health evaluation facility, a mental health treatment
facility, or a mental health evaluation and treatment
facility.
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4)Requires persons providing evaluation services to be properly
qualified professionals and may be full-time employees,
part-time employees, or independent contractors of a county,
designated facility, or other agency providing face-to-face
evaluation services.
5)Defines "probable cause determination" to mean a determination
of whether there is probable cause for the detention of a
person and requires that a probable cause determination be
based solely on the criteria for detaining a person for
evaluation and treatment when a person, as a result of a
mental health disorder, is a danger to others, or him or
herself, or gravely disabled.
6)Prohibits a probable cause determination from considering the
availability of beds or services at designated facilities
within or outside of the county.
7)Specifies that the period of 72-hour detention for evaluation
and treatment begins at the time that the person is initially
detained.
8)Requires that when an individual is detained and taken to a
designated facility for evaluation and treatment, the
individual shall be assessed to determine whether he or she
can be properly served without being detained.
9)Requires a person to be provided evaluation, crisis
intervention, or other inpatient or outpatient services on a
voluntary basis if it is determined that he or she can be
served without being detained.
10)Specifies that if a detained individual is first taken to the
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emergency department (ED) of a non-designated hospital, the
person should be detained only for the time necessary to
ensure the patient is medically stable.
11)Prohibits mental health personnel from instructing a peace
officer or authorized professional employee of an emergency
transport provider acting at the direction of a peace officer
seeking to transport a person to a designated facility for
assessment to take the person to a jail solely because of the
unavailability of an acute bed.
12)Prohibits a peace officer or other authorized professional
employee of an emergency transport provider from being
detained any longer than the time necessary to complete
documentation of the factual basis of the detention for
evaluation and safely complete the transfer of physical
custody of the person.
13)Requires a peace officer, or an authorized professional who
takes a person into custody, to complete and sign an
application for detention for evaluation and treatment,
stating the circumstances under which the person's condition
was called to the attention of the peace officer or authorized
professional, and stating that the peace officer or authorized
professional has probable cause to believe that the person is,
as a result of a mental health disorder, a danger to others,
or to himself or herself, or gravely disabled.
14)Requires the presentation of the application to a designated
facility or nondesignated hospital as a condition of
continuation of the detention for evaluation and treatment; if
the application is not presented to the designated facility or
nondesignated hospital, as applicable, the person must be
immediately released from detention for evaluation and
treatment.
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15)Requires that, in the case that a person detained by a peace
officer or authorized professional is in a location other than
a designated facility or nondesignated hospital, the original
or copy of the application for detention for evaluation and
treatment be presented to the designated facility where the
individual is transported.
16)Allows a treating emergency professional to initiate a
follow-up probable cause determination if the emergency
professional determines that there is no longer probable cause
to continue the detention for evaluation and treatment.
17)Requires that the determination to release a person from
detention for evaluation and treatment be based solely on
whether there is probable cause to continue the detention for
evaluation and treatment.
18)Prohibits the determination to continue the detention or to
release the person from detention from being based on the
availability of beds or services at designated facilities
within or outside of the county, or on anything other than
whether there is probable cause for detention.
19)Requires each county to establish disposition procedures and
guidelines with local law enforcement agencies for the safe
and orderly transfer of persons detained for evaluation and
treatment by a peace officer.
20)Requires the determination of probable cause to detain a
person for evaluation and treatment to be independent of a
determination as to whether the person has a psychiatric
emergency medical condition requiring emergency services and
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care.
21)Prohibits a determination of probable cause to detain a
person for evaluation and treatment by a peace officer or an
authorized professional from being deemed a psychiatric
emergency medical condition unless a health care professional
has determined that the person has a psychiatric emergency
medical condition.
22)Prohibits a determination by a treating emergency
professional or a psychiatric professional that an individual
has a psychiatric emergency medical condition from being the
only reason to establish probable cause and therefore consider
an individual eligible to be detained for evaluation and
treatment.
23)Prohibits a determination by a treating emergency
professional or a psychiatric professional that a person
detained for evaluation and treatment does not have a
psychiatric emergency medical condition, or that the person's
psychiatric emergency medical condition is stabilized, from
being the only reason a person is eligible for release from
detention for evaluation and treatment.
24)Provides qualified immunity to a designated facility or
nondesignated hospital or a physician, employee, or other
staff person from civil or criminal liability for any injury
resulting from evaluation or providing services with care, as
specified.
25)Provides qualified immunity to a nondesignated hospital and
the professional staff of the nondesignated hospital from
civil or criminal liability for the transfer of a person
detained for evaluation and treatment to a designated
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facility.
26)Provides qualified immunity to an emergency transport
provider from civil or criminal liability for the continuation
of the detention for evaluation and treatment while
transporting the person to a designated facility at the
direction of a peace officer who detained the person for
evaluation and treatment, as specified.
27)Provides qualified immunity to a peace officer or authorized
professional responsible for the detention of the person who
transfers the custody of the person from civil or criminal
liability for the continuation of detention during the
person's stay in the ED prior to the discharge of the person
from the hospital or the release of the person from detention.
28)Provides qualified immunity to the professional person in
charge of the facility providing intensive treatment, the
medical director of the facility, the psychiatrist directly
responsible for the person's treatment, or the psychologist
from civil or criminal liability for any action by a person
prematurely released from detention.
29)Provides qualified immunity to the attorney or advocate
representing the person, the court-appointed commissioner or
referee, the certification review hearing officer conducting
the certification review hearing, and the peace officer
responsible for detaining the person from civil or criminal
liability for any action by a person released at or before the
end of 30 days pursuant to this article.
30)Provides qualified immunity to a provider of ambulance
services licensed by the Department of the California Highway
Patrol or operated by a public safety agency, to transport a
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person who is in a hospital or facility on a voluntary basis
to a designated facility for psychiatric treatment.
31)Prohibits a person from being detained for evaluation and
treatment solely for the purpose of transporting the person,
or transferring the person by a provider of ambulance
services, to a designated facility or an ED of a nondesignated
hospital.
32)Prohibits an individual from being subject to detention for
the purpose of authorizing or providing evaluation, treatment,
or admission to a facility, or as a condition for providing or
paying for medical services, care, or treatment, unless there
is probable cause to detain the person for evaluation and
treatment and the person cannot be properly served on a
voluntary basis.
EXISTING LAW:
1)Declares the intent of the Legislature to end the
inappropriate, indefinite, and involuntary commitment of
persons with mental health disorders, developmental
disabilities, and chronic alcoholism, and to eliminate legal
disabilities. (Welfare and Institutions Code Section 5100.
All further statutory references are to the California Welfare
and Institutions Code, unless otherwise indicated.)
2)Authorizes a peace officer, member of the attending staff of
an evaluation facility designated by the county for evaluation
and treatment ("designated facility"), member of the attending
staff, as defined by regulation, of a facility designated by
the county for evaluation and treatment, or other professional
person designated by the county, upon probable cause, to take
a person with a mental disorder who is a danger to himself or
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others, or who is gravely disabled, into custody and place him
in a facility designated by the county. (Section 5150(a).)
3)Requires facilities, for the purposes of a 72-hour treatment
and evaluation, to be designated by the county for evaluation
and treatment and approved by the State Department of Health
Care Services. (Section 5150(a).)
4)Requires that a person who is taken into custody for a 72-hour
treatment and evaluation be provided an oral advisement that
informs the person of:
a) The name of the officer or mental health professional
authorizing custody;
b) The fact that the person is not under criminal arrest,
but under a mental health examination;
c) Where the evaluation will take place;
d) That he or she may take a few personal items; and
e) That he or she may make a phone call or leave a note to
inform family and friends where he or she has been taken.
(Section 5157.)
1)Requires that a person who is admitted for a 72-hour
evaluation and treatment be provided with the following
information in writing:
a) That he or she is being placed in the psychiatric unit
because he or she may hurt himself or herself, or others,
or be unable to take care of himself or herself, as
specified;
b) A listing of the facts upon which the above allegation
is based;
c) That he or she will be held for a period of up to 72
hours, and when that period will begin;
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d) That he or she may be held for a longer period of time;
and
e) His or her right to a lawyer, as specified. (Section
5157.)
2)Authorizes the county mental health director to develop
procedures for the county's designation and training of
professionals who would perform LPS Act functions including:
a) License types, practice disciplines, and clinical
experience of professionals;
b) Initial and ongoing training and testing requirements
for professionals;
c) The application and approval processes for professionals
seeking to be designated by the county, including the
timeframe for initial designation and procedures for
renewal of the designation; and
d) The county's process for monitoring and reviewing these
professionals to ensure appropriate compliance with state
law, regulations, and county procedures. (Section 5121.)
1)Provides immunity to public agencies (which includes public
hospitals) and their employees for the involuntary detention
of persons, including the enforcement and release of
detainment to the extent that the facility or employee acts in
accordance with requirements of LPS in detaining a person, and
enforcing or releasing the detention. (Government Code
Section 856.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: The Lanterman-Petris-Short (LPS) Act was enacted in
the 1960s to develop a statutory process under which individuals
could be involuntarily held and treated in a mental health
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facility in a manner that safeguarded their constitutional
rights. The LPS Act was intended to balance the goals of
maintaining the constitutional right to personal liberty and
choice in mental health treatment, with the goal of safety when
an individual may be a danger to oneself or others, or is
gravely disabled.
At the time of its enactment, the LPS Act was considered
progressive because it afforded the mentally disordered more
legal rights than most other states. Since its passage in 1967
the law in the field of mental health has continues to evolve
toward even greater legal rights for mentally disordered
persons.
Need for the bill. Co-sponsor of the bill, the California
Chapter of the American College of Emergency Physicians, state
in support of the bill that district hospitals see the results
of the variance in application of the LPS Act across the state -
which results in individuals with mental illness languishing for
hours, days and weeks awaiting psychiatric assessment and
treatment in their hospitals. Supporters note that this measure
increases the emphasis on the prompt provision of services in
both LPS-designated and non-LPS designated facilities.
The California Medical Association adds in support that the
current system is failing psychiatric patients by forcing them
through a fragmented medical delivery system that is inefficient
and wastes valuable ED resources. No one benefits when a
patient waits for days in an ED waiting for treatment. This
bill will remedy this situation, resulting in benefits to
patients in need of psychiatric treatment and to our state's
EDs.
Commencement of the 72-hour clock start for detention. This
bill indicates that that the period of 72-hour detention for
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evaluation and treatment shall begin at the time that the person
is initially detained. While it is possible that the person may
not receive a full 72 hours of medical care because some of that
time will be taken up between the time when the person is taken
into custody by a peace officer or other authorized individual
and the time when the person is actually treated, it would be
inappropriate to not start the clock until the person is
assessed at a treatment facility. Balancing the desire to
ensure the most appropriate care for individuals, while
protecting their civil liberties, it seems appropriate to start
the clock when the individual is taken into the custody of a
peace officer. This method of calculating the total time
allowed for the person's detention also incentivizes timely
transport of the person to the treatment facility. It is also
consistent with the Legislature's intent to "provide prompt
evaluation and treatment of persons with mental health
disorders." (Section 5001(b).)
Qualified immunity provisions are logical and consistent with
other California statutes. Explaining the need for qualified
immunity for medical professionals working in or with
non-designated hospitals, the bill's co-sponsor, the California
Hospital Association, writes:
The purpose of the immunity statutes is to protect the
discretionary nature of the evaluation so that the
professionals can be guided by their medical judgment and
not the fear of liability. To do so, the statute must
protect those who decide to involuntarily commit a patient
as well as those who decide not to involuntarily commit a
patient and to release an individual.
Recognizing that psychiatry is not an exact science, the
United States Supreme Court has recognized that "the
subtleties and nuances of psychiatric diagnoses render
certainties virtually beyond reach in most situations."
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Unlike other health care providers, whose diagnoses can be
verified at the outset by a CAT scan, MRI, x-ray, blood
tests, palpation and surgery, psychiatric and mental health
professionals cannot verify their diagnoses, treatment or
discretionary judgment, except through hindsight.
Co-sponsor, the California Chapter of the American College of
Emergency Physicians (California ACEP), adds:
When enacted, the LPS Act granted immunity to psychiatrists
in designated facilities. Extending the qualified immunity
to emergency physicians modernizes the Act, given that most
patients with mental health conditions are now receiving
care in emergency departments in non-designated facilities.
Like so many other state approaches, this bill immunizes certain
hospital personnel who provide services in conjunction with the
detention process pursuant to Section 5150 et seq. from
negligent actions when seeking to assist others in peril, but it
logically does not immunize actions that are grossly negligent
or outright reckless. This balanced approach, which encourages
assistance to individuals in crisis by shielding staff on the
Section 5150 response team from liability for ordinary
negligence, but not from either gross negligence, or willful or
wanton conduct, is reflective of the approach taken by many
other statutes in state law. For example, a Good Samaritan who
pulls an accident victim from an automobile is shielded from
liability for inadvertently, but negligently causing physical
injury to the injured person. (Health and Safety Code, Section
1799.102(b)(2).) On the other hand, if that person then
attempted to choke or strike the injured person, the Good
Samaritan would not be completely free from potential
responsibility for the harm he or she caused.
The "gross negligence or willful and wanton conduct" proviso in
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the bill also appears to be completely consistent with other
existing California statutes that grant qualified immunity to
various professionals who render emergency care voluntarily,
without expectation of compensation, and outside of the scope of
their employment. (See, e.g., Bus. & Prof. Code sections 2727.5
and 2861.5 [emergency care rendered by nurses outside the scope
of their employment]; Bus & Prof. Code section 3503.5 [emergency
care rendered by physicians' assistants outside the scope of
their employment]; Health and Safety Code, Section 1799.102
[person who renders emergency medical or nonmedical care at the
scene of an emergency].)
As originally in print, the bill provided virtually complete
immunity from liability to hospital and emergency personnel who
provide services in conjunction with the detention process
pursuant to Section 5150 et seq. at private hospitals. With the
addition of language that is standard in other qualified
immunity statutes, "Nothing in this section shall exonerate from
liability a person described in this section who acted with
gross negligence or willful or wanton misconduct," these
individuals are immunized from liability for ordinary
negligence, but not from either gross negligence, or willful or
wanton conduct.
Regarding the bill's original immunity provisions, the Consumer
Attorneys of California wrote:
While we support the goal of consistent statewide
practices, we must oppose the broad immunity provisions as
they undermine public safety.
AB 1300 provides immunity for the transportation and
elopement of detained individuals. The National Institute
for Elopement Prevention defines elopement as follows,
"When a patient or resident who is cognitively, physically,
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mentally, emotionally, and/or chemically impaired; wanders
away, walks away, runs away, escapes, or otherwise leaves a
caregiving facility or environment unsupervised, unnoticed,
and/or prior to their scheduled discharge." Facilities
who care for these detained, high risk individuals must
take the appropriate precautions to prevent this from
occurring. These facilities should not be immune from
negligent, gross negligent or even intentional acts that
can place detained mentally ill individuals in danger.
Once you take someone's liberty, even for good cause, you
must be required to provide reasonable care for their
safety.
NAMI California expressed similar concerns with the immunity
provisions, stating that, "By removing liability from hospitals,
an individual, or family of an individual, harmed by the actions
of a facility will have no recourse, and significant incentives
to provide quality care to patients experiencing psychiatric
crises are removed."
These concerns should be significantly mitigated by the author's
agreement to limit the immunity provisions in the bill.
Because the intent of the bill is to provide qualified immunity
to certain hospital and emergency personnel who provide certain
services in conjunction with Section 5150 detention process at
private hospitals and it is intent of the Legislature to
"provide prompt evaluation and treatment of persons with mental
health disorders" (Section 5001(b)) and to "encourage the full
use of all existing agencies, professional personnel, and public
funds to accomplish these objectives and to prevent duplication
of services and unnecessary expenditures" (Section 5001 (f)), it
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is appropriate to provide these individuals with qualified
immunity from liability.
Prior similar legislation. SB 364 (Steinberg), Chapter 567,
Statutes of 2013 - revised the law related to 72-hour treatment
and evaluation for individuals with a mental health disorder by
adding to the types of facilities that a county is allowed to
designate to provide services and allowing county mental health
directors to develop procedures for the designation and training
of professionals who can perform functions of detention,
evaluation, and treatment of persons subject to Section 5150.
AB 110 (Blumenfield), Chapter 20, Statutes of 2013 - enacted the
2013-14 Budget Act, which includes, among its other provisions,
$206 million ($142 million General Fund one-time) for a major
investment in mental health services, including additional
residential treatment capacity, crisis treatment teams, and
triage personnel.
SB 585 (Steinberg), Chapter 288, Statutes of 2013 - clarified
that Mental Health Services Act funds and various County
Realignment accounts may be used to provide mental health
services under the Assisted Outpatient Treatment Demonstration
Project Act of 2002, or Laura's Law, and allows counties to opt
to implement Laura's Law through the county budget process.
SB 1381 (Pavley), Chapter 457, Statutes of 2012 - deleted in
state law references to "mental retardation" or a "mentally
retarded person" and instead replaces them with "intellectual
disability" or "a person with an intellectual disability."
SB 665 (Petris), Chapter 681, Statutes of 1991 - established the
right, under the LPS Act, to refuse antipsychotic medication and
establishes hearing procedures to determine a person's capacity
to refuse treatment with antipsychotic medication.
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AB 2541 (Bronzan and Mojonnier), Chapter 1286, Statutes of 1985
- authorized county mental health programs to initiate services
to various target populations, requires various studies and
planning activities, and prohibits mental health personnel from
instructing law enforcement personnel to take individuals
detained for mental health evaluations to jail solely due to the
unavailability of a mental health facility bed.
AB 1424 (Thomson), Chapter 506, Statutes of 2001- made various
changes to the LPS Act to: increase the involvement of family
members in commitment hearings for the mentally ill; require
more use of a patient's medical and psychiatric records in these
hearings; and prohibit health plans and insurers from using the
commitment status of a mentally ill person to determine
eligibility for claim reimbursement.
SB 677 (Lanterman, Petris, and Short), Chapter 1667, Statutes of
1967 - enacted the LPS Act, which governs involuntary civil
commitment for individuals with mental illness, with the intent
to end inappropriate, indefinite, and involuntary commitment and
provide for prompt evaluation and treatment.
REGISTERED SUPPORT / OPPOSITION:
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Support
California Hospital Association (co-sponsor)
California Chapter of the American College of Emergency
Physicians (co-sponsor)
California Emergency Nurses Association (co-sponsor)
Alameda Health System
Antelope Valley Hospital
Association of California Healthcare Districts
Aurora Vista del Mar Hospital
California Medical Association
Citrus Valley Health Partners
Cottage Health System
Dignity Health
District Hospital Association
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El Camino Hospital
Emergency Nurses Association
Fremont Hospital
Good Samaritan Hospital - Bakersfield
Good Samaritan Hospital, San Jose
Henry Mayo Newhall Hospital
John Muir Health
Long Beach Memorial Hospital
Mad River Community Hospital
Madera Community Hospital
Mammoth Hospital
Miller Children's & Women's Hospital Long Beach
Mission Community Hospital
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O'Connor Hospital Parkview Community Hospital Medical Center
Pomona Valley Hospital
Redlands Community Hospital
Ridgecrest Regional Hospital
Saint Louise Regional Hospital
San Gorgonio Memorial Hospital
Sharp HealthCare
Sierra View Medical Center
Southwest Healthcare System
Stanford Health Care
White Memorial Medical Center
Opposition
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Consumer Attorneys of California
NAMI California (Oppose unless amended)
Concerns
California State Association of Counties
County Behavioral Health Directors Association
Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334