BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session AB 1836 (Maienschein) - Mental health: referral of conservatees ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: August 2, 2016 |Policy Vote: JUD. 7 - 0 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: Yes | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: August 8, 2016 |Consultant: Jolie Onodera | | | | ----------------------------------------------------------------- This bill meets the criteria for referral to the Suspense File. Bill Summary: AB 1836 would authorize the probate court, after an evidentiary hearing, to refer a probate conservatee to the county mental health system for an assessment to determine whether the conservatee has a treatable mental illness, including whether the conservatee is gravely disabled and unwilling or unable to accept treatment voluntarily. This bill would require the county mental health system to file a copy of the assessment with the court that made the referral for assessment. Fiscal Impact: County mental health assessments : Potentially significant ongoing local costs, potentially state-reimbursable (General Fund), in the hundreds of thousands of dollars annually for county mental health departments to conduct LPS assessments of probate conservatees and file copies of the assessments with the referring courts. Public guardians : Potential increase in workload costs to public guardians (Local Funds) resulting from probate court AB 1836 (Maienschein) Page 1 of ? recommendations to county conservatorship investigators for LPS conservatorships based on county mental health assessments. Any increase in local costs is not estimated to be eligible for state reimbursement as the Commission on State Mandates (CSM) has determined that activities conducted by public guardians are prompted only after a county's discretionary decision to establish the office of the public guardian, as specified. 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 placements : 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. Court-appointed counsel : Potential increase in county counsel costs (General Fund*) to provide counsel to conservatees unable to afford counsel. *Trial Court Trust Fund 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.) AB 1836 (Maienschein) Page 2 of ? 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. Under existing law anyone who, as a result of a mental health disorder, 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 allow a probate court that is overseeing a probate conservatorship to refer a conservatee to a county mental health plan or system for assessment to determine if the conservatee meets the criteria for an LPS conservatorship. This bill does not permit the court to establish an LPS conservatorship, but would permit the court to make a recommendation, based on the mental health assessment, to the county conservatorship investigator. Proposed Law: This bill would authorize a probate court to refer a probate conservatee to the county mental health plan or system for an AB 1836 (Maienschein) Page 3 of ? LPS assessment, as follows: Authorizes the court, if a probate conservatorship has already been established, in a proceeding under the Probate Code, after an evidentiary hearing attended by the conservatee, unless the conservatee waives presence, and the conservatee's counsel, to refer the conservatee, in consultation with a licensed physician or licensed psychologist, for an assessment by the local mental health system or plan to determine if the conservatee has a treatable mental illness, including whether the conservatee 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. Requires the court to appoint counsel for the conservatee if the conservatee cannot afford counsel, as specified. Requires the local mental health system or plan to file a copy of the evaluation with the court that made the referral for evaluation. Related Legislation: AB 193 (Maienschein) 2015 was similar to this bill but would have authorized a probate court to order an investigation of a probate conservatee and recommend an LPS conservatorship. AB 193 was vetoed by the Governor with the following message: I am returning Assembly Bill 193 without my signature. This bill would authorize a probate court to order an investigation for a Lanterman-Petris-Short conservatorship for an individual currently under probate conservatorship. AB 1836 (Maienschein) Page 4 of ? Currently, professionals in charge of county mental health facilities are responsible for recommending an investigation for a Lanterman-Petris-Short conservatorship. This bill bypasses the clinical expertise of these professionals and for that reason I can't support it. Prior Legislation: AB 1725 (Maienschein) 2014 was similar to AB 193 (Maienschein) 2015. AB 1725 was held on the Suspense File of the Assembly Committee on Appropriations. Staff Comments: By authorizing a court to refer a probate conservatee to a county mental health plan for an LPS assessment and requiring the county mental health plan to provide a copy of the assessment to the referring court, this bill could potentially impose a higher level of service on county mental health systems. While it is unknown with certainty how many referrals for LPS assessments will result should this bill be enacted, it is estimated that costs for additional assessments could cost in the hundreds of thousands of dollars annually. This bill may result in additional recommendations by the probate court to public guardians for investigations into LPS conservatorships based on the county mental health assessments received from county mental health plans. Public guardians may incur additional investigation and administrative costs, however, the completed LPS assessment should alleviate workload to some degree. Staff notes that any increase in local costs to public guardians 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 AB 1836 (Maienschein) Page 5 of ? board of supervisors may by ordinance terminate the office of public guardian. The decision to create the office of public guardian is a local 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 --