The COVID-19 pandemic has coincided with worsening mental health across the country, and California is no exception. Not surprisingly, Governor Gavin Newsom signed into law multiple pieces of mental health treatment related legislation in 2022 that have or will begin to go into effect this year, a few of which are summarized below.
AB 2275: Addresses 5150 Mental Health Commitment Timing Issues and Hearing Rights
Under the Lanterman-Petris-Short Act (LPS Act), a person who is gravely disabled due to a mental health disorder and is a danger to themselves or others may (with probable cause) be taken into custody and placed in a facility designated by the county and approved by the state for up to 72 hours for evaluation and treatment (commonly referred to as a 5150 hold). Historically, counties have taken different approaches to when the 72-hour involuntary hold begins. This new law corrects and clarifies the timing statewide by creating uniform standards.
As of January 1, 2023, the 72-hour period begins at the time when the person is first detained by one of the individuals authorized by the LPS ACT to take an individual into custody. If an individual is detained beyond the 72-hour period without being certified for intensive treatment, the facility evaluating and treating the individual must notify the county patients’ rights advocate and an intensive treatment review hearing must be held within seven days of when the individual was first detained unless judicial review has otherwise been pursued under the LPS Act.
The individual detained must be notified of his or her hearing rights and is entitled to the assistance of an attorney or county patients’ rights advocate for purposes of understanding the commitment process, preparing for the certification review hearing and obtaining other assistance as appropriate.
The law has been in effect for several months, so now is a good time for designated facilities to audit the effectiveness of updated policies and evaluate and address any operational issues that may have cropped up during implementation.
SB 1227: Facilities Providing Involuntary Intensive Mental Health Treatment May Petition for Additional 30 Days
Under the LPS Act, a person who is gravely disabled due to a mental health condition and has received 14 days of involuntary treatment (commonly referred to as a 5250 hold) may be certified for an additional period of involuntary treatment of not more than 30 days.
As of January 1, 2023, agencies and facilities may obtain approval for an additional intensive treatment period of up to 30 days. A petition may be filed in the county superior court if the professional staff of the treating agency or facility determines that the individual requires additional treatment after 15 days of the initial 30-day period, but at least seven days before its expiration. The court must either deny the petition or order an evidentiary hearing within two court days after the petition is filed, and may approve an additional 30 days of intensive treatment if all of the following requirements are met:
- The individual is gravely disabled as a result of mental disorder or impairment by alcoholism;
- The individual has been advised of, but not accepted voluntary treatment;
- The facility providing the treatment is equipped and staffed to provide intensive treatment; and
- The person is likely to benefit from continued treatment.
The court must approve the extension of time before the end of the initial 30 day period for involuntary treatment to continue.
The legislative intent behind increasing the time of involuntary treatment was to assist patients who could benefit from the additional treatment and thus avoid conservatorship, which is a costly and time consuming process.
Unfortunately, the new law does not address the potential issues created for California’s behavioral health treatment system by an increase in involuntary treatment. However, this new law is part of an ongoing effort to modernize California mental health services and in March 2023, Governor Newsom proposed a 2024 ballot initiative that is intended to, among other things, create thousands of new beds for mental health treatment.
SB 1338: Creates the Community Assistance, Recovery, and Empowerment (CARE) Court Program
The CARE Court program (Program) was created to establish a new pathway to deliver mental health and substance use disorder services to individuals suffering from schizophrenia spectrum and other psychotic disorders. The new law relies upon the California State Department of Health Care Services to allocate funds to the seven initial counties (Glenn, Orange, Riverside, San Diego, San Francisco, Stanislaus, Tuolumne) including the City of San Francisco, which will be first to implement the new program. These seven counties must set up CARE Courts by October 1, 2023, and the rest of the state, including the remaining Bay Area counties, must follow by December 1, 2024.
The Program process begins with a petition to the Court from family members, behavioral health providers, or other parties specified in the law. The Court reviews this petition and appoints legal counsel to the individual, as well as a voluntary supporter if one is chosen by the individual. If the individual is determined by the Court to meet Program criteria and refuses to voluntarily engage in services, the Court orders development of Program care plan which is developed by the county behavioral health agency together with the participant and their legal counsel and voluntary supporter, and focuses on the specific needs of the individual. The Court reviews and adopts the Program care plan with both the participant and county behavioral health as party to the Court order for up to 12 months.
Once the Program care plan is adopted, the county behavioral health agency and other providers begin treatment to support the recovery and stability of the participant. Progress on these treatments is regularly monitored by the Court, and the Program care plan may be revised or extended by up to 12 months. Once an individual completes the requirements of the Program care plan, they remain eligible for ongoing treatment, supportive services, and housing in the community to support a successful transition and long-term recovery.
Thus far, the Program has experienced some challenges. According to a recent news article, the city of San Francisco has received $4.3 million from the state to launch the Program but estimates that treatment and housing for 400 participants would cost more than $50 million annually on top of the court’s operating costs. Earlier this year, Disability Rights California’s challenged the Program on constitutional grounds by filing a writ of mandate with the California Supreme Court, which was recently denied.
SB 349: New Requirements for Substance Use Disorder Treatment Client Rights and Advertising
As of January 1, 2023, licensed substance use disorder treatment facilities and certified treatment programs (Treatment Providers) are required to implement and make available to all prospective and actual clients a bill of client rights that explains the right to:
- be treated with honesty, respect, and dignity, including privacy in treatment and in care of personal needs;
- be informed by the Treatment Provider of the available treatment options and their risks and benefits (including no treatment);
- receive evidence-based treatment in a safe and ethical setting from qualified staff and to the extent medically and legally appropriate be treated simultaneously for co-occurring behavioral health conditions;
- receive an individualized, outcome-driven treatment plan;
- remain in treatment for as long as the Treatment Provider is authorized to treat the client (the law does not require a Treatment Provider to provide services for which they won’t be reimbursed);
- receive support, education, and treatment for their families and loved ones, to the extent the treatment provider is authorized to provide these services;
- be from mental and physical abuse, exploitation, coercion, and physical restraint;
- be informed of the client bill of rights as evidenced by written acknowledgment or by documentation by staff in the clinical record that a written copy was provided;
- be informed about the law regarding complaints and how to file complaints, including the address and telephone number of the department; and
- receive ethical care that covers and ensures full compliance with the requirements set forth in the laws applicable to the facility/program.
The new law also requires that Treatment Providers ensure marketing and advertising materials provide accurate and complete information in plain language that includes the Treatment Provider’s name, brand, treatment location, the types and methods of services provided and the categories and levels of care available. In addition to this information, all Treatment Providers must disclose to prospective clients all ownership and control, financial interests, and contractual relationships that must be disclosed to the California Department of Health Care Services.
Treatment Providers must maintain records of all referrals to and from recovery residences including where the client decided to go, and Treatment Providers may not be paid for (or retain) payment for and will be subject to penalties for making (or directing another person to make) false or misleading statements regarding the nature and availability of substance use disorder treatment services, including:
- providing inaccurate information about the nature, identity, internet address, or location of substance use disorder treatment services;
- misrepresenting in-network or out-of-network provider status;
- providing inaccurate identity of, or contact information for, any treatment provider;
- surreptitiously directing or redirecting the reader to another website; and
- misrepresenting relationships with a treatment provider, unless the treatment provider has provided express, written consent to indicate that relationship.
Penalties for violations of the new law include penalties of up to $20,000 per violation and can involve suspending or revoking a Treatment Provider’s license. Additionally, any individual or entity harmed by violations of the new law may bring a claim against the Treatment Provider and any other person who aided or participated in the violation and the court may, in addition to equitable relief, award treble damages and reasonable attorney’s fees to prevailing plaintiffs.
Treatment Providers that have not implemented new policies and procedures to address the new law should do so as soon as possible. In particular, Treatment Providers should put processes in place to review advertising and marketing materials for compliance and monitor the activities of advertising and marketing vendors.