BILL ANALYSIS                                                                                                                                                                                                    Ó



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

          AB 1836 (Maienschein) - Mental health:  referral of conservatees
          
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          |Version: August 2, 2016         |Policy Vote: JUD. 7 - 0         |
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          |Urgency: No                     |Mandate: Yes                    |
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          |Hearing Date: August 8, 2016    |Consultant: Jolie Onodera       |
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          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  







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            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.)









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          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  








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          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. 











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          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  








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          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.




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