Orange County Health Care Agency Laura's Law Report Innacurate - CTAC Analysis - Mental Illness Policy Org
Orange County Health Care Agency Laura’s Law Report Innacurate – CTAC Analysis 2017-02-03T18:33:47+00:00

NAMI Orange County & the California Treatment Advocacy Coalition
Response to HCA Report, Oct. 14, 2011, Implementing Laura’s Law in Orange County
Executive Summary of Response

The HCA report submitted to the Board of Supervisors on Oct. 14, 2011 contains information that is incomplete, inaccurate and misrepresented.  As such it is not a reliable guide for evaluating implementation of California’s assisted outpatient treatment (AOT) law, known as Laura’s Law (LL).
Among the deficiencies:

  • Omission of data about net savings realized by jurisdictions that have experienced AOT.  AOT results in reduced expenditures for law enforcement, incarceration, homelessness,  mental illness treatment in jails, inpatient treatment, and  related judicial costs.  It also makes more cost effective use of community mental health services.
  • Omission of data about the treatment effectiveness of AOT  from any of the innumerable independent studies that have documented reductions in arrest, incarceration, violence, crime, substance abuse, stress on caregivers, and victimization of those with mental illness while improving treatment compliance, e.g., from Arizona: “”71 percent [of AOT patients] . . . voluntarily maintained treatment contacts six months after their orders expired” compared with “almost no patients” who were not court-ordered to outpatient treatment.”
  • Wholesale dismissal of the only avenue for treatment of individuals who are too ill to seek or use voluntary mental health services – a population that is extremely small in number but who, because of their non-treatment, have a grossly disproportionate impact on law enforcement, criminal justice, emergency rooms and public safety.
  • Misrepresentation about the feasibility of using MHSA funds for Laura’s Law services.   MHSA funds can – and are – already being used in two California counties. Other funds available to pay for services include Medicare, private insurance and patient fees.
  • Cost projections for treatment based on the misleading assumption Laura’s Law would serve a new group of patients receiving a full array of services that are new to them.  Because Laura’s Law is strictly limited to those who have repeated involvement with the mental health system (e.g., multiple hospitalizations, receipt of services while incarcerated) as well as costly, but not used, enrollment in community mental health programs upon discharge from hospital or jail, it provides a mechanism for expending funds more effectively for a small and specific group of patients who typically are already in the system.
  • Cost projections for legal representation based on the misleading assumption LL would serve a new group of clients.  Laura’s Law patients are typically clients who currently revolve through a myriad of court hearings and trials due to their frequent involuntary hospitalizations and arrests.  Laura’s Law will reduce the burden on the court system caused by untreated mental illness.
  • Out-of-date participation numbers and program design features for Nevada and Los Angeles counties.

We respectfully request that HCA consider this undated information and issue a corrected report.  With the November 2004 passage of Proposition 63, Orange County has developed  a broad range of intensive community services.  Laura’s Law provides a mechanism by which the Orange County’s Department of Behavioral Health can also help some of its most severely ill clients effectively utilize those services and reduce the overall burden of untreated mental illness to the entire Orange County public judicial and health care systems.   Please implement Laura’s Law now.

Response by NAMI Orange County and the California Treatment Advocacy Coalition
to the Health Care Agency Report of 10-14-11
DISCUSSION AND ANALYSIS OF ASSEMBLY BILL 1421 – LAURA’S LAW
(HCA Report Excerpts are in italics; NAMI OC and the
California Treatment Advocacy Coalition response in regular type)

HCA Report: At the Board of Supervisors meeting on August 9, 2011, members of the public urged the Board to pass a resolution to implement Assembly Bill AB 1421. This paper is to discuss (1) background and provisions of AB 1421, (2) financial and other aspects of implementing AB 1421, (3) advantages and disadvantages of implementing the law, and (4) options for Board consideration.   HCA Executive Summary:  AB 1421, known as Laura’s Law, was enacted on January 1, 2003. It established a discretionary program for counties allowing involuntary, court-imposed outpatient treatment for persons who are mentally ill and meet certain clinical criteria. AB 1421 is not effective in any county unless its board of supervisors (1) authorizes implementation by resolution and (2) makes a finding that no voluntary adult mental health program and no children’s mental health program will be reduced as a result of implementation.  An AB 1421 program must provide a wide array of specified services.

Response: AB 1421 (WIC 5345), also known as Laura’s Law,  made changes to the Lanterman, Petris, Short Act, which governs  civil involuntary treatment of people with mental illness in California.  Before Laura’s Law was added to the Welfare and Institutions code, California counties could not intervene until certain individuals (suffering from illnesses such as schizophrenia, bipolar disorder and other psychotic disorders) became imminently dangerous to self or others or gravely disabled and subjected to inpatient hospitalization under WIC 5150.  Laura’s Law gives counties the option to provide court ordered outpatient treatment to these individuals when they are seriously deteriorating but have not yet reached the standards for involuntary hospitalization.  To qualify for Laura’s Law, the person must be refusing to accept treatment and unlikely to survive safely in the community without supervision.  Additionally, they must have been in a hospital, prison or jail at least twice within the last 36 months or attempted or threatened serious violent behavior toward self or others within the last 48 months.  Laura’s Law, also known as Assisted Outpatient Treatment (AOT), combines a court order with intensive services and supervision by a multi-disciplinary community treatment team.  The services a person may receive are determined by an individual treatment plan that becomes part of the court order and are all currently available under the Orange County system of care.  While a family member, peace offer/probation officer or licensed treatment provider may request the Director of Mental Health to investigate whether a person meets the criteria for Laura’s Law, only the Director of Mental Health may actually file a petition with the court and then only if he or she determines that the person fits the criteria and that services are available and will be reasonably available for the duration of the potential order.

HCA Report: It is a complex law that contains much detail for some of its provisions while remaining vague about others.  It is very specific about notice, due process, right to counsel, and which services must be offered and how they must be provided.

Response:   WIC 5345 is a clearly written law, neither complex nor vague.   Nevada County has fully implemented Laura’s Law and provides a turnkey model for Orange County.   That County—which has fully integrated Laura’s Law into its community mental health system– has  been awarded both the County Supervisors Association of California 2010 Challenge Award and the NACO 2011 Achievement Award for their implementation, offering  a unique solution to bridge the gap for people who are potentially dangerous and in need of treatment but who do not meet the criteria for emergency involuntary hospitalization.    See The Nevada County Experience attached to this response. Also attached CSAC & NACO award

 

 

HCA Report:  Statewide, only Nevada County, a small Northern California county, has implemented an AB 1421 program.

Response:  Both large Los Angeles County and small Nevada County has passed the Board of Supervisors’ Resolution and implemented Laura’s Law.  With experience in the Los Angeles pilot project of Laura’s Law, Los Angeles County Supervisor Antonovich has said, “Given its positive impact meeting the needs of this population, it is time to expand this compassionate, cost-effective approach to all California counties.”

HCA Report: Several other counties have considered adopting AB 1421, but have not done so. AB 1421 has the advantage of providing an additional, though limited, approach to compelling certain individuals to enter treatment.

Response:   Yes

HCA Report: On the other hand, there are significant disadvantages including cost, new and complex requirements, civil liberty issues, and questions of effectiveness.

Response:   There is no question of the effectiveness of Assisted Outpatient Treatment or the cost savings it can produce by reducing costly hospitalizations, incarcerations and related tragedies.  Civil liberties are protected  and increased by due process within Laura’s Law, as noted earlier in the HCA Report (“It is very specific about notice, due process, right to counsel, and which services must be offered and how they must be provided.”).    Court ordered outpatient treatment is much less intrusive into a person’s liberty than waiting for emergency involuntary locked care in a psychiatric hospital.

HCA Report: The preliminary cost estimate of an AB 1421 program for Orange County is approximately $5.7 million to $6.1 million annually for the Health Care Agency, Public Defender, and County Counsel. No state funding was appropriated for AB 1421, and it is doubtful whether Mental Health Services Act (Proposition 63) funds could be utilized. As a result, funds for the program would very likely have to come from a general fund budget augmentation.

Response:  Not true.  There is no question of the effectiveness of Assisted Outpatient Treatment or the cost savings it can produce by reducing costly hospitalizations, jailings and related tragedies.   Like all aspects of the LPS Act, funding is provided through the various funding streams the County receives from federal and state levels for its mental health care system.  Both Nevada County and Los Angeles County use MHSA (Prop. 63) and Medi-cal/Medicare funds to pay for  Laura’s Law   Nevada County implemented it without any county funds being expended.  While there could be some minor costs for meetings needed to coordinate interagency collaboration, those costs should be negligible.  Nevada County found by using services within its MHSA and Medi-Cal system, for every $1 they provided in AOT services they saved $1.81 in MHSA funds from reduced hospitalizations and arrests.  These  savings will also accrue to the Public Defender, County Counsel, law enforcement, and Court system by reducing the myriad of due processes and trials that currently occur associated with inpatient hospitalization, arrests and incarcerations .  The contention that AOT in Orange County would cost $5.7 to $6.1 is unsubstantiated by other county and vicinity outcomes and assumes an immediate and distinct program populated with 120 clients.   AOT is ordered one person at a time according to the Director’s option to petition the court and may be limited by the director according to the services he or she has available at that time.

 

HCA Report:  Three options are provided for Board consideration: 1) Implement AB 1421, 2) Do not implement the law, or 3) Implement a pilot program of voluntary outpatient services program that has some AB 1421 aspects and is funded by Proposition 63.

Response:  Implement AB 1421. It will save lives and money.  Laura’s Law recipients can be served by existing MHSA (Prop. 63) programs.  Laura’s Law is the missing “best practice” element in Orange County’s Behavioral Health System.   As Presiding Judge Tom Anderson has written, “Laura’s Law provides an effective tool to help people who are in serious danger of being involuntarily hospitalized or incarcerated or worse. The impact of Laura’s Law  interventions has been proven to save people from severe mental health deterioration, increase voluntary participation in their own mental health care, increase personal and social stability, decrease the need for crisis intervention and saving of lots of taxpayer money. There is no good reason to not implement Laura’s Law. In fact, under the current circumstances (considering the budget issues and standards of care) the failure to utilize LL might be considered negligent.”
*****
HCA Report Background.  AB 1421, known as “Laura’s Law”, established the Assisted Outpatient Treatment (AOT) Demonstration Project Act of 2002. The law permits the court to order involuntary outpatient treatment for a person 18 and over who is severely mentally ill, who refuses voluntary treatment and who appears to be at risk for self-harm or grave disability. AB 1421 was derived in large measure from New York State’s 1999 Mental Hygiene Law known as “Kendra’s Law,” under which about 1,000 New York residents are served each year. AB 1421 was effective January 1, 2003 and contained a five year sunset provision. It was renewed in 2008 for a second five year period, and is now due to sunset on January 1, 2013.  Adoption of AB 1421 is optional for each county. It requires a Board of Supervisors resolution to be implemented. The Legislature did not include a funding source for the program. As a result, individual counties must fund the program locally.  Passage of AB 1421 occurred in 2002, which was before voters approved Proposition 63 (Prop 63), the Mental Health Services Act (MHSA). At that time county mental health programs had few intensive outpatient programs, so that families and communities had very few resources to help individuals with mental health disorders. With the November 2004 passage of Proposition 63, counties throughout the state have significantly improved access to voluntary services. A broad range of intensive voluntary services have been implemented in Orange County under MHSA, as described in the Attachment. Many of these new treatment services are geared specifically to individuals who resist seeking help or who have historically been underserved, including homeless mentally ill persons. HCA’s budget for the current fiscal year includes $45 million for these services.

Response:  Laura’s Law is only for individuals who have been offered an opportunity to participate in a treatment plan and who continue to fail to engage in treatment in the current Orange County Mental Health System.  With the broad range of intensive community based services offered within Orange County’s system of care, Laura’s Law is still the only option for those individuals who due to the severity of their illness fails to engage in them voluntarily.  It is the only option for these people to be helped in the community and outside of hospital or jail.

HCA Report:  Throughout California, there has been disagreement regarding whether AB 1421 should be implemented. While many family members, and other advocates have sought to have the program implemented, it has met with opposition from clients, service providers, advocates and disability rights attorneys.

Response:   Laura’s Law was supported during its passage by the California Medical Association, The California Peace Officers’ Association, the California State Sheriffs’ Association, the National, State and local Alliance on Mental Illness (NAMI), the California Psychiatric Association, Police Chiefs Associations and other entities.  Laura’s Law was opposed in its passage by American Civil Liberties Union, the California Network of Mental Health Clients, the California Foundation for Independent Living,  Protection and Advocacy,  the Church of Scientology and other entities.

HCA Report: A number of counties, including San Diego, Sacramento, San Francisco, Marin, Nevada and Santa Barbara, have considered implementing AB 1421. However, only Nevada County a small county in Northern California and the home of Laura Wilcox, the young woman after whom the bill was named, has implemented Laura’s Law. Nevada County has one person in the program currently.

Response:   The information in the HCA Report is out of date.   Nevada County has 32 individuals as part of its AOT program via extra engagement, settlement orders and has given 9 direct orders.   Los Angeles County has also passed the necessary resolution and implemented a pilot project.

HCA Report: In 2004, the Los Angeles County Board of Supervisors passed a board resolution to implement an AB 1421 pilot program. However, opponents of the program filed a lawsuit against the pilot program, claiming that it did not meet several statutory requirements. The Los Angeles County program is a pilot program that serves only a limited number of clients and is available only to those that are involved in the “criminal” justice system. Conversely, AB 1421 requires total implementation and involves “civil” court proceedings that to not involve crimes or the threat of punishment. In response to the lawsuit, Los Angeles County subsequently entered into a settlement agreement whereby it removed all references to AB 1421 and implemented a program similar to AB 1421 that focuses on low level criminal defendants.

Response:  The information in the HCA Report is out of date and inaccurate.  Los Angeles County was indeed sued and a settlement was reached.  That settlement agreed that the program would not be called  “Laura’s Law”.  The plaintiff felt that calling a program after a dead woman was stigmatizing to people with mental illness.  The Los Angeles County program is called instead “Enhanced Services Assisted Outpatient Treatment.”  Additionally the settlement required the County of Los Angeles to notify the plaintiff if their program went over 50 individuals. There was no money attached to the settlement. No suit has since been brought against Los Angeles County nor  has Nevada County been sued.  Laura’s Law stands all constitutional tests.   The Los Angeles program originally only included individuals who had fulfilled their jail sentence.  It has since been expanded to include individuals who are being discharged from hospital.  If a referred individual is determined to be eligible for the program, legal proceedings required to admit them to the program are initiated.  See Brochure attached regarding the Los Angeles County AOT program. Similar laws are in effect in 44 states.

HCA Report: AB 1421 is a complex law that contains much detail for some of its provisions while remaining vague about others. It is very specific about notice, due process, right to counsel, and which services must be offered and how they must be provided. All specified services must be made available because the law does not provide for partial implementation.

Response:   AB 1421 is not a complex law nor is it vague. Orange County has the experience, expertise and competent managers who can plan and implement the program.   All services required under Laura’s Law are part of Orange County’s System of Care.

 HCA Report:  AB 1421 provides for court-ordered outpatient mental health treatment. This treatment is also known as Assisted Outpatient Treatment (AOT). A person subject to AOT must live in the County and have a history of not participating in needed mental health treatment. The person must be unlikely to survive safely in the community without supervision, based on an investigation and resultant clinical determination. All persons placed on AOT must meet threshold criteria: the person’s mental illness (1) has twice been a factor leading to psychiatric hospitalizations or incarcerations within the prior 36 months, or (2) has resulted in one or more actual or attempted serious acts of violence toward self or others within the prior 48 months.  If the criteria are satisfied, the County Mental Health Director or designee may file a certified petition with the court indicating that AOT is needed to help prevent relapse or deterioration that would likely result in grave disability or serious harm to self or others. Such a petition must establish that the person has been offered an opportunity to voluntarily participate in a treatment plan but continues not to engage in treatment and is deteriorating.  AB 1421 specifies that certain individuals can request an AOT evaluation. These include (1) immediate family members, (2) adults residing with the individual, (3) a hospital director or licensed mental health professional treating the individual, or (4) a peace officer, parole or probation officer supervising the individual.
Upon receiving a request from an individual noted above, the County Mental Health Director or designee is required to conduct an investigation. The Director or designee is permitted to file a petition only if it is determined likely that all necessary elements for an AOT petition can be proven by clear and convincing evidence. Prior to a petition being granted, an affidavit must be filed by a licensed mental health treatment provider certifying that he or she either personally examined the mentally ill person no more than 10 days prior to the filing of a petition or “made appropriate attempts to elicit the cooperation of the person….”  If the mentally ill person refuses to be examined, the court may request that the person consent to be examined. If the person does not consent and the court finds reasonable cause to believe that the allegations in the petition are true, the court may order the person be transported to a hospital or similar psychiatric evaluation facility for evaluation for a period not to exceed 72 hours. Such an evaluation is to determine if the mentally ill person meets the AB 1421 standard to determine whether it is appropriate to move forward with an AB 1421 hearing. An order for evaluation under this section is not an order for treatment. And, there is no requirement that the person being evaluated be held for the full 72 hours.
Response:  Agreed

HCA Report:  Arguably, this pre-evaluation hold is the ONLY section of Laura’s Law that offers a tool that doesn’t already exist under the current Lanterman-Petris-Short (LPS) system.

Response:  Disagree.  Nowhere in the LPS system may treatment and services be given for individuals too ill to recognize their own need for treatment before they become an immediate danger to self or others or gravely disabled except under Laura’s Law.  Nowhere in the LPS systems may a family member, treatment provider or peace officer request investigation and thus alert the department of behavioral health to as to whether a person meets need for treatment before a person becomes dangerous or gravely disabled.  Nowhere else in the LPS is providing  community treatment services the focus of the court order rather than just taking away the individual’s rights.  Nowhere in the LPS is there an objective criterion to help prevent the person from again decompensating in such a manner that they would become likely to experience additional hospitalizations or arrests or potential death.

HCA Report:  If, after being evaluated, a determination is made that the mentally ill person meets the AB 1421 standard, the court may grant the County’s petition if the court finds that “there is no appropriate and feasible less restrictive alternative” and order AOT treatment which can last up to six (6) months. The statute allows for additional court hearings during the term of the AOT order. The granting of the petition is a non-criminal legal process.

Response:  Agreed.  Laura’s Law is non-criminal for individuals who meet the WIC 5345 standard and for whom there is no appropriate and feasible less restrictive alternative so they don’t again become subject to hospitalization, incarceration, danger or death.  It is a civil law.

HCA Report:  Once an AOT order has been issued, a treatment plan for the client is developed.

Response:   The treatment plan must be prepared before AOT is ordered and becomes part of the order.   The law reads “Assisted outpatient treatment shall not be ordered unless the licensed mental health provider recommending assisted outpatient treatment to the court has submitted to the court a written treatment plan….and the court finds, in consultation with the county mental health director…that the services are available from the county, or a provider approved by the county, for the duration of the court order.”

HCA Report:   However, there are no civil or criminal penalties for non-compliance with the treatment plan associated with the AOT Order. In light of the fact that the person subject to an AB 1421 petition is entitled to legal counsel, we expect that these mentally ill people will be advised by their attorneys that there are not civil or criminal penalties for refusing to comply with an AOT order.  Therefore, if a mentally ill person fails or refuses to comply with the treatment ordered by the court, AB 1421 provides only that the person may be detained up to 72 hours in an inpatient setting/ for further evaluation under Section 5150 of the Welfare and Institutions Code.  However, if at any time “the person is determined not to meet the criteria of 5150, and does not agree to stay in the hospital as a voluntary patient…” he or she must be released. Thus if a person is not a danger to self, others or gravely disabled he or she must be released. This 5150 evaluation option is already available under current law.

Response:    Laura’s Law is a civil law to treat, not a criminal law to penalize. Assisted Outpatient Treatment’s therapeutic jurisprudence works very well.  The treatment team is encouraged to solicit cooperation rather than compel it through fear.  If the person who is on an AOT order refuses to participate, the Count may order the person to meet with the assisted outpatient team.  {In Nevada County, if a person is not complying, Judge Anderson may have the person and the treatment provider come back to his court room to discuss that noncompliance and work together on any disagreements about the treatment plan.}  If the treatment team is unable to gain the person’s cooperation, the treatment team may have the person placed in the hospital for up to 72 hours without the person  having to meet the criteria of WIC 5150 (danger or grave disability).  The person may not be retained in the hospital longer than 72 hours, however, unless the person reaches the standard of WIC 5250.   The AOT statutes throughout the United States do not have heavy handed sticks within them to compel compliance.  The goal is to help the person begin to engage actively in his or her own recovery so that eventually they  get well enough to willingly stay in treatment voluntarily.  For more information regarding how the therapeutic jurisprudence of a court order encourages treatment, watch  Texas Judge Kazen  in “Stop the Revolving Door” at   http://vimeo.com/26171883    and  Nevada County Judge  Anderson  in CSAC’s video “Nevada County:  First in the State—Assisted Outpatient Treatment Program”  at    http://www.youtube.com/watch?v=_2p6_CvklYg .

HCA Report:  Some advocates and family members may believe that AB 1421 will solve the problems associated with homelessness and mentally illness, yet as stated above, failing to comply with treatment may only result in further evaluation under the existing LPS system.

Response:  Laura’s Law—Assisted Outpatient Treatment—is not a panacea.  But it helps.  It reduces the need for future evaluation under the existing LPS system by reducing hospitalizations, crisis and arrest.  See outcome statistics from New York, Nevada County, and other studies concerning AOT throughout the US.

HCA Report:  At intervals of not less than 60 days during an AOT order, the director of the outpatient treatment program must file an affidavit with the court affirming that the person continues to meet the criteria for AOT. At these times, the mentally ill person has the right to a hearing to determine whether or not he or she still meets the criteria for AOT. At that hearing, the burden of proof for the continuation of the AOT order is on the director of the AOT program. During each of these 60-day periods the person may also file a petition for a writ of habeas corpus that would require the director of the AOT program to defend the legality of a sustained AOT petition and related treatment order. This could result in the filing of two reports with the court in any given 60 day period.

Response:  That is good due process to make sure that the public mental health system is not abusing a person with mental illness.  As  Behavioral Health Director Michael Heggarty from Nevada County states, “ That is the beauty of due process, is it not? That is why we need judges to evaluate the arguments on both sides of the case and make a judgment.”  The due process within Laura’s Law is not complex to implement and less burdensome on the judicial system than current LPS and other judicial processes. (See Nevada County Experience, attached.)

HCA Report: Contrary to some claims, AOT has no specific provision for involuntary medication. This limitation is significant because proponents of AOT often cite mandatory medication compliance as a critical element for effective treatment.

Response:  Involuntary medication, where the person is involuntarily administered medication (‘hold ‘em down and shoot them up”) can only be done in a licensed hospital setting, as it well should only be allowed.  The treatment plan under Laura’s Law can include medication compliance and that treatment plan becomes part of the court order.  The treatment team then has the responsibility to supervise the person and help the person make sure medication is obtained and taken. This court order, supervision and support helps in compliance.  New York recipients of AOT substantiate this:  • 90 percent said AOT made them more likely to keep appointments and take medication.

HCA Report:  Additionally, AB 1421 does not allow for any specific release from HIPPA privacy rules regarding access to medical records. As a result, family members may be disappointed to learn that, absent a waiver, AB 1421 does not authorize family participation in AOT treatment.

Response:  Okay, agreed.  Families do not have a right to force anything under AOT.   Consumers retain their rights to confidentiality and other HIPPA privacy rules regarding access to medical records.  The treatment team can encourage the consumer to allow family participation in their recovery, if appropriate.   Families, while they may not receive information sans a signed waiver, retain their right to provide information to the treatment team.

 

HCA Report:  Another AB 1421 requirement is to implement a comprehensive training and education program to improve the delivery of services to AOT recipients. This training must be provided to AOT mental health treatment providers, law enforcement officials and court hearing officers.

Response:  Agreed.  This is one of the big unforeseen benefits of AOT:   With collaboration, the entire system learns how to work together better to help both AOT recipients and clients of the entire system.  (See NY findings)

HCA Report:  Implementation Issues. Funding.  No state funding was appropriated to support implementation of AB 1421 or AOT service provision. Furthermore, since AB 1421 is a local discretionary program, the county’s costs cannot be claimed under SB 90. There is considerable doubt whether MHSA funds could be used for AB 1421 services. Based on County Counsel’s initial review of the issue, they have advised that MHSA funding may only be used for voluntary programs and that funding of involuntary treatment and court personnel is prohibited. There are strong arguments that AB 1421 is an involuntary program. Opponents of the law have previously indicated that they will challenge the use of any portion of existing voluntary treatment programs to carry out an AOT order.

Response:  Nevada County is using MHSA funding and Medi-Cal funding.   Los Angeles is using MHSA funding.  Neither County has not been challenged on this.    Both Counties utilizing MHSA funds to pay for services provided to AOT recipients have had their MHSA plans approved by the State Department of Mental Health.   Indeed,  the approval letter dated May 22, 2007 to Nevada County from the California Department of Mental Health upon approval of their MHSA plan states, “The Department would like to assure you that those individuals eligible for Mental Health Services Act (MHSA) programs, such as the approved Assertive Community Treatment Team, may have voluntary  or involuntary legal status.”  (Approval Letter and Nevada County Board of Supervisors Resolution attached.)   Regulations of MHSA state clearly that services provided by its funds must not discriminate against a recipient due to legal status.  The County of Orange could be subject to loss of its MHSA funds or a major suit if it refused to provide MHSA services due to a person’s mental health legal status.

HCA Report: Existing HCA voluntary programs cannot be reduced to fund an AB 1421 program because AB 1421 requires that “…no voluntary mental health program serving adults and no children’s mental health program may be reduced as a result of the implementation.” Consequently, it is very likely that AOT programs can be financed only by additional local General Fund appropriations or by funding shifts from involuntary mental health programs.

Response:  Nevada County used no general fund dollars.  Los Angeles County used no general fund dollars.  All services are paid through Medi-Cal or MHSA dollars.  Laura’s Law reduces expense to the mental health system and increases access to voluntary services.  What this provision means is that the County cannot specifically close down/reduce  XXXX voluntary program as a result of implementation.  Regulations of MHSA state clearly that services provided by its funds must not discriminate against a recipient due to legal status.  The County of Orange could be subject to loss of its MHSA funds or a major suit if it refused to provide services due to legal status.

HCA Report:  Orange County’s current involuntary programs are primarily inpatient and residential treatment programs used for evaluation and treatment of persons already placed on conservatorship. Shifting funds from them would reduce services for the most fragile and vulnerable patient population that has the most severe mental health impairments. This would be extremely detrimental to both the community and those individuals.
Response:  Okay.  Don’t shift funds from them.  But, Orange County will reduce its burden  now caused by extreme grave disability or danger that leads to inpatient hospitalization or long term care by reducing the number of involuntary hospitalizations, resulting conservatorships,   and incarcerations for this very severely ill population  before they become subject to  that extreme expense.  MHSA funds and Medi-Cal can pay for services.

HCA Report:  An additional consideration is that the County would be required to offer the same AB 1421 services on a voluntary basis to all individuals requesting them.  Currently various MHSA programs are available; however, there will not be sufficient capacity in these programs to accommodate all new referrals. It is unclear what the legal consequences would be if an individual requested intensive treatment that existing programs were unable to accommodate due to a lack of funding.

Response:  Just plain wrong.  The County would not be required to offer the same AB 1421 services on a voluntary basis to all individuals requesting them. There is no such thing as an entitlement to Mental Health Services within a county, state, or federal level.   Services are provided to the extent resources are available and based upon the “medical necessity” of the individual receiving those services.  Laura’s Law is for individuals whose condition is substantially deteriorating and placement in the program would be the least restrictive placement necessary to ensure the person’s recovery and stability in order to prevent a relapse or deterioration that would likely to result in grave disability or serious harm to himself or to others as defined in Section 5150. As stated, currently various MHSA programs are available and must provide their services regardless of legal status.

HCA Report:  Potential Cost .The preliminary assessment of the County cost of an AOT program includes: (1) direct treatment costs, (2) other HCA costs, (3) Public Defender costs, and (4) County Counsel costs.The total combined costs to develop, implement and operate an AB 1421 program are estimated at between $5.7 million and $6.1 million. Those costs are discussed below. Direct Treatment Costs Orange County’s direct treatment cost for patients similar to those covered by AB 1421 is $23,648 per client annually. The formula Nevada County used to estimate number of persons to receive services under AB 1421 (based on New York’s experience with Kendra’s Law) was one person for every 25,000 residents. Applying this formula in Orange County would result in 120 persons. The approximate contracted direct treatment costs for 120 clients would thus be 120 times $23,648, or $2,837,760.  Other HCA Costs  HCA costs would be incurred in the following areas:  Clinical Psychologists to provide evaluations to determine whether the criteria of AB 1421 are met, to prepare the certified petition and to provide court testimony. censed masters level clinicians to conduct clinical analysis of the history and current status of the person’s behavioral disorder and to prepare court documents. Bachelor’s level and/or paraprofessional staff to provide outreach to targeted persons to engage in voluntary programs and to link those referred for assessment to the AB 1421 program.  A supervisor and support staff for overall program oversight and supervision, and to respond to client, family and community questions and concerns. Costs associated with providing comprehensive education and training to improve the delivery of services to AOT recipients. County services and supplies including computers, software, rent, office supplies, mileage reimbursement, administrative costs, etc. The other HCA costs would be approximately $1,883,073. Public Defender and County Counsel Costs. Both the Office of the Public Defender and County Counsel would have a need for additional staffing as well as additional ancillary costs, including the hiring of professional experts and other professional services. The approximate costs for each office would range between $476,000 and $676,000 annually. In summary, the total approximate budget for an estimated 120 clients would be between $5,672,833 to $6,072,833, as follows: Public Defender Costs: $476,000 to $676,000 County Counsel Costs: $476,000 to $676,000 Contracted Treatment Services Costs: $2,837,760 HCA County Staff and Services Costs: $1,833,073 Total $5,672,833 to $6,072,833 Timeline HCA would require 6 to 12 months to design and properly implement an AOT program. This would include: Designing a new Mental Health Civil Court program in coordination with the Probate Court, Office of the Public Defender and County Counsel. Determining whether the program would be funded by reducing involuntary mental health programs or by additional local General Fund appropriations. As part of this determination, an assessment of the impact on existing involuntary programs would be needed.  Hiring of staff, procuring treatment services and educating the various stakeholders. AB 1421 is currently set to sunset on January 1, 2013. If your Board chooses to implement AB 1421, given the expected time and expense to establish such a program, it might be prudent to postpone implementation until it is determined whether AB 1421 will be extended or made permanent, especially considering the likelihood of implementation delay due to potential lawsuits challenging implementation of the law.
Response:  The above is assuming an immediate case load of 120 people and not considering the cost savings of reduced all ready incurring but ineffective community services,  hospitalizations, incarcerations, arrests, and other judicial processes.  The common sense response would be pass the resolution allowing AOT to be an option within the Orange County system.  Then the Director of Behavioral Health can petitions for AOT on an as needed basis to the extent resources are available.    Nevada County offers the Director a “turnkey” operation so he does not have to design a new wheel.  They have indicated their full cooperation with him in sharing the simplicity of their operation and they have not been sued.   Legislation to extend the sunset will be introduced early in 2012 and is expected to pass as it did in 2008.  With two counties implementing Laura’s Law and others considering it, there is no reason that the legislature would not extend the law.   The idea of Laura’s Law being a burden on the court is unfounded.  It will reduce trials associated with hospitalizations, arrests, incarcerations and suits relating to those tragedies.

HCA Report:  Advantages and Disadvantages Advantages  1. Provides an additional treatment resource for the community. By implementing AB 1421, there would be an additional option available to family members and mental health professionals to assist resistant clients in obtaining treatment. It could result in more of these persons engaging in treatment programs. Correspondingly, some of the potential negative outcomes associated with mental illness, such as self-harm and criminal activity, may be decreased.  2. Allows family members to request service and may help noncompliant persons in obtaining and engaging in treatment.  The ability of non-public safety and non-medical personnel to request (through the County Mental Health Director or designee) court-ordered involuntary treatment in a non-criminal setting is a significant factor for support of AB 1421. Many family members and others strongly support AB 1421, believing that their noncompliant loved ones will, through this program, obtain needed treatment. They believe that AB 1421 is an effective tool to require seriously mentally ill individuals to get help before they become a danger to themselves or others, and that this law will help stop the revolving door of homelessness, hospitalization and incarceration. They also believe that it ultimately will reduce the public costs associated with these individuals when they do not receive treatment.

Response:  Agreed.

HCA Report: Disadvantages 1. Lack of funding. Funding for the services required to be provided under AB 1421 continues to be a major barrier to implementation. The preliminary estimated cost is $5.7 to $6.1 million per year, and it is questionable whether MHSA funding could be used. Additional local General Fund appropriations could be needed for implementation. 2. Offers only limited new tools. Other than the pre-evaluation hold of up to 72 hours and court oversight, AB 1421 does not offer any additional statutory framework for involuntary treatment that is not already in place and available. Specifically, the Lanterman-Petris-Short (LPS) Act provides an array of involuntary commitment procedures including 72 hour holds, 14-day holds, 180-day commitments for imminently dangerous persons, and temporary and permanent conservatorships. These holds can be used in cases where individuals are suspected of being a danger to self or others or gravely disabled as a result of their mental illness. Under AB 1421, there is no enforcement mechanism that does not already exist within the LPS statutory scheme, even if an individual fails to comply with a treatment order. Moreover, because many persons who are subjects of AOT petitions and orders may not be actual HCA patients, and because AB1421 does not address HIPPA, the Mental Health Director or their designee may not be entitled to access to certain client records due to HIPPA restrictions without a court order or waiver from the patient.

Response:  Mental Health Treatment Services are available within the MHSA and Medi-Cal system and can be funded through Community Services and Supports funds of MHSA.  AOT recipients will invariably already be clients of HCA and costly clients of that agency, indeed, under Orange County’s current  system.  If the Director of Behavioral Health cannot access records to reasonably confirm that the person meets the statutory criteria of AOT, then the Director of Mental Health may not file a petition with the court for AOT.    The current LPS system does not have a way to reach these individuals before they become imminently dangerous. AOT allows intervention before the person deteriorates to danger.  Conservatorships are only available to individuals who are gravely disabled and found to be unable to utilize food, shelter and clothing if provided to them.  Laura’s Law would also help many individuals before they had to be placed on costly–rights removing– conservatorships and prevent the physical and emotional trauma associated with untreated mental illness and extreme grave disability.  Court costs may not be paid for by MHSA, but Laura’s Law will reduce the current burden on the court by reducing other processes and hearings associated with inpatient hospitalizations, arrests, incarceration and tragedies that have and will occur unless Laura’s Law is implemented.  (See  Behavioral Health Director Mark Refowitz testimony to Board of Supervisors at their Aug. 9, 2011 meeting.  Approximately at 1 hr. 40 minutes of on line video)

HCA Report: 3. Limits personal choice.  There are legitimate reasons why a person may want to opt out of treatment, including the fact that side effects of psychiatric medications can be severely uncomfortable and can involve health risks. Many believe that informed choice in regard to treatment is essential to recovery and maintaining one’s mental health. Furthermore, negative experiences with involuntary treatment may make people more hesitant to access any form of treatment at a later point in time. 4. Civil liberty concerns.  Many clients are opposed to AB 1421 because of civil liberty concerns, as are some client and patients’ rights organizations, citing “choice, not coercion”. Involuntary mental health treatment is a sensitive topic that has long been debated in the mental health field. Opponents of AB 1421 argue that current provisions of the Lanterman-Petris-Short (LPS) act rightfully uphold an individual’s freedom and preserve an individual’s right to manage his or her health care. Under LPS, treatment may not be provided involuntarily unless it is proven that the individual is gravely disabled or is considered a danger to themselves or others.  5. May not provide the type of enhanced treatment, or avoidance of negative impacts of mental illness, that proponents hope for.  The types of treatment services offered under an AB 1421 program are comparable to the new MHSA programs that have been implemented in Orange County. As a result, the desirability of spending substantial public funds on this program, at a time when resources are diminishing, is debatable.  Additionally, based on the fact that AB 1421 does not set aside HIPPA protections, some family members may be disappointed to learn that, absent a waiver, AB 1421 does not provide family members the ability to participate in treatment with their loved ones. 6. The effectiveness of voluntary outpatient care vs. involuntary outpatient care is an open issue A RAND Corporation study commissioned by the California Senate Committee on Rules regarding involuntary outpatient commitment, The Effectiveness of Involuntary Outpatient Treatment, Empirical Evidence and the Experience of Eight States, 2001, found: The data is inconclusive on whether involuntary outpatient commitment works.”There is no evidence that a court order is necessary to achieve compliance and good outcomes…” The literature provides clear evidence that “alternative community based mental health treatments can produce good outcomes for people with severe mental illness.” Other advocates and studies contend that involuntary outpatient care can be effective. They assert that absent the AOT order, the person subject to the order would not have engaged in treatment. This assertion may in fact be valid, and thus places the matter in doubt.

Response:   The Legislature declared that the Rand findings, written in 2001,  found that, using randomized clinical trials,  the effect of sustained outpatient commitment {court order}  for individuals with schizophrenia and other psychotic disorders were on outpatient commitment for an extended period of 180 days or more, and who also received intensive mental health services, they had 72% fewer readmissions to the hospital and 28 fewer hospital days than the non outpatient commitment group.   Since that finding, AOT throughout the country has been much studied with those studies reconfirming the findings above. For example:  During the course of court-ordered treatment in New York, when compared to the three years prior to participation in the program, AOT recipients experienced far less hospitalization, homelessness, arrest, and incarceration. Specifically, for those in the AOT program: • 74 percent fewer experienced homelessness; • 77 percent fewer experienced psychiatric hospitalization; • 83 percent fewer experienced arrest; and • 87 percent fewer experienced incarceration. Assisted Outpatient Treatment is a “best practice” model for individuals who consistently have failed in all other forms of community treatment due to the severity of their illness,.  The data is conclusive.    Moreover, consumers who have experienced AOT agree that AOT helps them get well and stay well in the community.

HCA Report:  Options 1. Implement AB 1421. The Board could elect to implement AB 1421. Adoption of AB 1421 would obligate the County to provide the required services and staffing. HCA would need 6 to 12 months to complete the design and implementation of an AOT program. 2. Do not implement. The high cost, lack of funding, complex requirements and limited ability to enforce a court order are seen as major disadvantages to implementing AB 1421. Also, at the time AB 1421 was enacted in 2002, County Mental Health Programs had very few intensive outpatient programs/services. With the passage of Proposition 63 in November 2004, a broad range of voluntary services has been funded and implemented in Orange County. These programs, as described in the Attachment, have demonstrated decreases in hospitalization, incarceration and homelessness as well as increases in vocational and employment activities. Many of these new treatment services are geared specifically to persons resistant to seeking help or who have historically been underserved.  3. Develop a pilot program with some AB 1421 features. AB 1421 does not provide authorization for implementation of a pilot program or anything less than total implementation. However, HCA could design a voluntary pilot program that incorporates some features of AB 1421 and implement the program on a provisional or short-term basis, without the Board adopting an AB 1421 resolution. It could be a new program or modification of an existing program. Such a program would not include any court enforcement provisions or oversight; however, it would provide a dedicated resource to work with individuals to engage their loved ones in needed treatment.  A period of at least 6 months would be needed to design such a program and obtain the necessary review and approval. The pilot could potentially be funded by MHSA, provide access for families and treatment providers to request an evaluation, and provide outreach and engagement services, assessment/evaluation and a comprehensive array of treatment services. Such a program would require approval of the MHSA Steering Committee, Mental Health Board and the Board of Supervisors.  A pilot program may not be considered adequate by AB 1421 proponents because they are seeking court oversight and court intervention in the care of their loved ones. However, in lieu of court oversight, the HCA Patient’s Rights Program could potentially fill a mediation role, providing oversight and intervention as necessary.

Response:  Do the right thing.  Pass the Needed Resolution to implement Laura’s Law as written now
{For more information, contact California Treatment Advocacy Coalition coordinator Carla Jacobs, 714-771-2321 or NAMI OC president  Steve Pitman, 714-544-8488}

******************************************************************************
Backup material
Nevada County Experience
Nevada County Board of Supervisors Resolution
Nevada County Approval Letter from State DMH
Nevada County Program Description
Los Angeles County Program Brochure
Los Angeles County Resolution
Letter to Editor from Mike Antonovich
Summary of AOT studies, including New York and other states.