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
AB 1836 (Maienschein) Page 1 of
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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.)
AB 1836 (Maienschein) Page 2 of
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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
AB 1836 (Maienschein) Page 3 of
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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.
AB 1836 (Maienschein) Page 4 of
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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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