The COVID-19 pandemic has coincided with deteriorating mental health across the country, and California is no exception. Not surprisingly, Governor Gavin Newsom signed into law a slew of mental health treatment-related bills in 2022, many of which have already taken effect or will do so this year, as summarized below.
AB 2275: Addresses 5150 Mental Health Commitment Timing Issues and Hearing Rights
A person who is gravely disabled due to a mental health disorder and is a danger to themselves or others may 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) under the Lanterman-Petris-Short Act (LPS Act). Counties have traditionally taken different approaches to determining when the 72-hour involuntary hold begins. By establishing uniform standards, this new law corrects and clarifies the timing throughout the state.
The 72-hour period begins 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 for more than 72 hours 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 the individual’s initial detention, unless judicial review is sought under the LPS Act.
Individuals detained must be informed of their rights to the assistance of an attorney or county patients’ rights advocate in order to understand the commitment process, prepare for the certification review hearing, and obtain other assistance as needed.
The law has been in effect for several months, so now is a good time for designated facilities to evaluate and address any operational issues that may have arisen during implementation.
SB 1227: Involuntary Intensive Mental Health Treatment Facilities May Petition for an Additional 30 Days
A person who is disabled due to a mental health condition and has received 14 days of involuntary treatment (commonly known as a 5250 hold) may be certified for an additional period of involuntary treatment of no more than 30 days under the LPS Act.
Agencies and facilities may apply for an additional intensive treatment period of up to 30 days. 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, a petition may be filed in the county superior court. Within two court days of the petition’s filing, the court must either deny the petition or order an evidentiary hearing, and it may grant an additional 30 days of intensive treatment if all of the following requirements are met:
- The individual is severely disabled as a result of a mental disorder or alcoholism
- The individual was informed about voluntary treatment but did not accept it
- The treatment facility is equipped and staffed to provide intensive care
- Continued treatment is likely to benefit the individual
For involuntary treatment to continue, the court must grant a time extension before the initial 30-day period expires.
The legislative intent behind extending the duration of involuntary treatment was to assist patients who could benefit from the additional treatment and thus avoid conservatorship, which is an expensive and time-consuming process.
Unfortunately, the new law does not address the potential problems that an increase in involuntary treatment could cause for California’s behavioral health treatment system. This new law, however, is part of a larger effort to modernize California’s mental health services, and in March 2023, Governor Newsom proposed a 2024 ballot initiative that would, among other things, create thousands of new mental health treatment beds.
SB 1338: Creates the Community Assistance, Recovery, and Empowerment (CARE) Court Program
The CARE Court Program was established to create a new pathway for providing mental health and substance use disorder services to people suffering from schizophrenia spectrum disorder and other psychotic disorders. The new law relies on the California State Department of Health Care Services to allocate funds to the seven initial counties (Glenn, Orange, Riverside, San Diego, San Francisco, Stanislaus, and Tuolumne) that will be the first to implement the new program, including the City of San Francisco. These seven counties must establish CARE Courts by October 1, 2023, with the remainder of the state, including the remaining Bay Area counties, following suit by December 1, 2024.
A petition to the court from family members, behavioral health providers, or other parties specified in the law initiates the program process. The court considers the petition and appoints legal counsel for the individual, as well as a voluntary supporter if requested by the individual. If the court determines that the individual meets program criteria but refuses to voluntarily engage in services, the court orders the development of a program care plan, which is developed by the county behavioral health agency in collaboration with the participant, their legal counsel, and a voluntary supporter, and focuses on the individual’s specific needs. For up to 12 months, the court reviews and adopts the program care plan, with both the participant and county behavioral health as parties to the court order.
Once the program care plan is approved, the county behavioral health agency and other providers begin treatment to support the participant’s recovery and stability. The court regularly monitors progress on these treatments, and the program care plan may be revised or extended by up to 12 months. Once an individual has completed the program’s care plan requirements, they are eligible for ongoing treatment, supportive services, and community housing to support a successful transition and long-term recovery.
So far, the program has encountered some difficulties. According to a recent news article, the city of San Francisco received $4.3 million from the state to launch the program, but treatment and housing for 400 participants would cost more than $50 million per year on top of the court’s operating costs. Disability Rights California challenged the program on constitutional grounds earlier this year, 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) must implement and make available to all prospective and actual clients a bill of client rights outlining the right to:
- be treated with integrity, respect, and dignity, including privacy in treatment and personal care;
- be informed of the available treatment options and their risks and benefits (including no treatment) by the Treatment Provider;
- receive evidence-based treatment from qualified staff in a safe and ethical setting, and be treated concurrently for co-occurring behavioral health conditions to the extent medically and legally appropriate;
- receive a customized, outcome-driven treatment plan
- remain in treatment for the duration of the Treatment Provider’s authorization to treat the client (the law does not require a Treatment Provider to provide services for which they will not be reimbursed);
- receive support, education, and treatment for their families and loved ones, to the extent permitted by the treatment provider;
- be free of psychological and physical abuse, exploitation, coercion, and physical restraint;
- be informed of the client bill of rights, as evidenced by written acknowledgment or documentation in the clinical record by staff that a written copy was provided; be informed about the law regarding complaints and how to file complaints, including the department’s address and phone number;
- 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 treatment providers to ensure that marketing and advertising materials contain accurate and complete information in plain language about the treatment provider’s name, brand, treatment location, types and methods of services provided, and categories and levels of care available. All treatment providers must also 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 keep records of all referrals to and from recovery residences, including where the client chose to go, and they may not be paid for (or retain payment for) making (or directing another person to make) false or misleading statements about the nature and availability of substance use disorder treatment services, including:
- providing false or misleading information about the nature, identity, internet address, or location of substance abuse treatment services;
- misrepresenting provider status as in-network or out-of-network;
- providing incorrect information about any treatment provider’s identity or contact information;
- directing or redirecting the reader inadvertently to another website; and
- misrepresenting relationships with treatment providers, unless the treatment provider has given express, written consent to do so.
Penalties for new law violations include fines of up to $20,000 per violation and the suspension or revocation of a treatment provider’s license. Furthermore, any individual or entity harmed by new law violations may file a claim against the treatment provider and any other person who aided or participated in the violation, and the court may award treble damages and reasonable attorney’s fees to prevailing plaintiffs in addition to equitable relief.
Treatment providers who have yet to implement new policies and procedures in response to the new law should do so as soon as possible. Treatment providers, in particular, should establish processes for reviewing advertising and marketing materials for compliance and monitoring the activities of advertising and marketing vendors.
