Published September 3, 2020
Landmark legislation to improve California’s notoriously fractured mental-health system has been passed and sent to the governor in the waning days of a chaotic legislative session disrupted by the COVID pandemic.
“This package of legislation is a game-changer,” said Maggie Merritt, executive director of the Steinberg Institute, a mental-health advocacy and policy nonprofit established in 2015 by Sacramento Mayor and former state Senate Leader Darrell Steinberg, a longtime advocate and author of major mental-health legislation spanning decades.
The fact that significant bills were passed in the middle of a pandemic – when the Legislature was forced to curtail hearings and sharply limit the number of bills they could consider – “shows that our elected leaders understand how important mental-health services are at this vital moment,” Merritt added.
“It means that for the 13.4 million people who get insurance on the open market or from employers, the promise of parity will finally be true.” — Julie Snyder
Steinberg said the legislative package “once again puts California at the forefront of mental health policy reform, requires more from the health insurance industry, and helps to address the mental health crisis that is taking such a devastating toll on our state and our country.”
Perhaps the most important measure, passed after years of fierce opposition from health insurers, and many failed (or vetoed) bills, would require insurers to provide treatment for mental health and substance abuse based on the same standards as treatment for physical conditions.
So-called “parity” laws have existed in both state and federal law for years, but insurers have used a complex determination of “medical necessity” to deny care for mental health and substance abuse — which is commonly a mental-health issue, a form of “self-medication.”
Senate Bill 855, by Sen. Scott Wiener, D-San Francisco, “is in itself historic,” said Julie Snyder, government affairs director for the Steinberg Institute. “It means that for the 13.4 million people who get insurance on the open market or from employers, the promise of parity will finally be true.” The bill also toughens enforcement by the state Insurance Department and the Department of Managed Care, which Snyder said will add 19 new positions provided in the governor’s budget.
“It’s an important change,” Randall Hagar, legislative advocate for the California Psychiatric Association, said of the new parity law. “It allows enforcement, clarity, and it’s going to make it harder for plans to deny care, which they’re really good at. . .The value of this bill is that it sets out criteria that plans have to use when making decisions. It levels the playing field.”
Strengthening ‘Laura’s Law’
Also approved was a bill to strengthen – and finally make permanent — California’s 18-year-old “Laura’s Law,” which gives family members legal recourse to get help for mentally ill relatives. The original 2002 law is named after 19-year-old Laura Wilcox, who was killed in 2001, along with two others, when a deranged client of a Nevada County mental-health clinic, where she was working during her winter break from college, came for an appointment and opened fire. His family had for months warned clinic staff that his condition was seriously deteriorating, but they refused to listen, citing patient confidentiality.
The current bill, AB 1976 by Assemblywoman Susan Eggman, D-Stockton, would remove a “sunset” provision that required new hearings every five years, add judges to the list of family members and clinicians who can refer people for treatment, and require counties to hold public hearings when they decide not to adopt Laura’s Law.
One bill in the package supported by mental-health advocates would require the state to collect data on board-and-care homes.
Twenty of California’s 58 counties currently have Laura’s Law/Assisted Outpatient Treatment (AOT) programs — which have shown significant success in reducing homelessness, hospitalizations and incarceration — but other counties have quietly “opted-out” of Laura’s Law with little or no public discussion.
“This bill will finally require counties to make that decision in a public setting,” said Hagar, which will make it more difficult for counties to justify not adopting a program that has been shown to help families and save public funds. Counties opposed that provision of the Eggman bill, saying it amounts to a mandate.
One bill in the package supported by mental-health advocates would require the state to collect data on board-and-care homes, which have been closing in many cities because of high housing costs, and another would create a system of “peer certification” for people who have “lived experience,” but may not have clinical degrees, and often work in local programs.
Still others would expand the scope of practice for nurse-practitioners working without physician supervision and require insurers to cover consultations with psychiatric clinicians by physicians treating pregnant women and children. Two bills would create a Secretary of Homelessness in the Governor’s cabinet and an Office of Suicide Prevention in the state Department of Public Health.
None of the bills that passed in this session, however, seriously addressed the “third rail” of mental-health care in California – the badly outdated 1967 Lanterman-Petris- Short Act (LPS)
While broad, substantive police reform legislation largely failed, one bill survived which would establish a pilot program to expand – and test – community-based responses to various crises, including those caused by mental illness. Law-enforcement response to mental-health calls, which often result in injury and death, have increasingly come under scrutiny as protests of police misconduct escalate around the country.
Widespread calls to “de-fund” the police have generally failed legislatively. But community programs have emerged that utilize mental-health experts rather than police (or paired with officers) in responding to and de-escalating potentially volatile crises.
The “third rail” in mental health law
None of the bills that passed in this session, however, seriously addressed the “third rail” of mental-health care in California – the badly outdated 1967 Lanterman-Petris- Short Act(LPS), which has dictated state mental health policy for more than half a century.
Passed at a time when California’s archaic and often dangerous state mental hospitals were closing, the LPS law sought to prevent the grotesque human rights abuses of the hospitals, where mentally ill and developmentally disabled “residents” – many of them children – were locked up, often for years, with little recourse, hardly any treatment, and virtually no due process. Many were injured or died in the overcrowded, understaffed facilities.
One measure that failed would have made possible somewhat longer involuntary holds for severely mentally ill individuals who are detained, usually for a maximum 72 hours.
But the statewide system of “community care” that was to replace the hospitals never happened, leaving thousands of mentally ill people homeless and without treatment, wandering California streets and warehoused in jails and prisons ill-equipped to house, much less help them.
Several bills proposing minimal or technical changes to LPS were introduced this session, with little fanfare and varying results.
One measure that failed would have made possible somewhat longer involuntary holds for severely mentally ill individuals who are detained, usually for a maximum 72 hours, as a danger to themselves or others, under the so-called 5150 hold (named after the LPS section in state law that established a limited system of involuntary holds).
A less utilized section of the law, 5250, allows for 14-day holds under strict conditions. But most people are detained on the more common 5150 hold, ending up in overcrowded hospital ER’s, where they are often discharged well short of 72 hours, without the treatment they need or any follow-up care.
AB 2015, by Assemblywoman Eggman, was passed by the Assembly in June with a bipartisan vote of 76-0, but stalled in the Senate and was withdrawn by the author in mid-August. The bill would have allowed 14-day holds for individuals unable to care for themselves, whose physical deterioration results from their mental illness. A relatively minor technical change to LPS, which is vague on the definition of “grave disability” involving health conditions, the bill will likely be reintroduced next session.
A highly critical July 28 State Auditor’s report helped to revive legislation that would otherwise have been a casualty of cancelled or truncated legislative hearings during the pandemic.
Requiring consideration of physical as well as mental health in LPS holds would be a significant departure from LPS requirements that only mental health be considered in determining “grave disability.” Advocates say the LPS law’s lack of clarity on the definition of “grave disability” has resulted in widely varying interpretations by hearing officers attempting to determine whether someone should be detained for care on an involuntary hold.
Another bill that easily passed, AB 3242 by Assemblywoman Jacqui Irwin, D-Thousand Oaks, would utilize telecommunications technology to assist health-care providers in determining whether someone should be admitted for treatment on an involuntary 5150 hold. Introduced in response to the pandemic and overcrowding in hospital emergency rooms, the bill was passed with strong bipartisan support.
“During the COVID 19 pandemic, many counties have turned to methods of telecommunications to conduct these [5150] assessments,” Irwin said in an Assembly bill analysis, “resulting in less egregious wait times for evaluation and less overcrowding in emergency departments.”
State Auditor helps to revive legislation
A highly critical July 28 state Auditor’s report helped to revive legislation that would otherwise have been a casualty of cancelled or truncated legislative hearings during the pandemic. The Eggman bill to strengthen Laura’s Law was essentially dead in the Senate, after passing 77-0 in the Assembly, until the auditor strongly recommended that California adopt AOT programs statewide.
Toward the end of the session, facing a statutory midnight deadline on Aug. 31, lawmakers struggled to prioritize and process hundreds of bills.
But the systematic overhaul recommended by the auditor is now left to future sessions, and advocates say the state has a long way to go in providing a coherent statewide system of mental-health care.
“It’s likely we will see much more on LPS, especially since the audit,” said Snyder, a veteran legislative staffer and advocate who recently joined the Steinberg Institute as government affairs director. “Most policy makers didn’t have time to address [the auditor’s report], but they’ll have an opportunity for a much more robust response in the coming session.”
She said “it just wasn’t the right year” for more comprehensive mental-health legislation, because of the pandemic. “It was very difficult to move legislation. Having been part of the legislative process for three decades, I’ve never seen anything like this.”
Toward the end of the session, facing a statutory midnight deadline on Aug. 31, lawmakers struggled to prioritize and process hundreds of bills. Members of the Senate Republican Caucus were largely forced to work remotely after one member tested positive, and tempers flared as the session sputtered to a chaotic end.
Nonetheless, the legislation that did pass makes significant, if incremental, changes, in how mental-health care is provided in California, at a time when voters are clamoring for solutions to a mental-health and homelessness crisis of epic proportions. Hagar, who follows as many as 100 bills for the California Psychiatric Association every year, said he is seeing “an increasingly larger portion” of bills in which mental health is either central or related.
“For the last three years, we have seen an increase in the number of bills that address both substance abuse and mental health,” he said. “Polls indicate that people want better health care, mental health care, solutions for homelessness.”
Hagar and other advocates are optimistic about even more substantive solutions in the next session. “A lot will depend on the shuffling of [committee] chairs,” he said. “As new legislators are elected and come into the process, we have an obligation to educate them and hope they will become advocates for sound mental health policy.”
Below are summaries of recently passed mental-health legislation, now awaiting action by the governor (Sources: Steinberg Institute, legislative records):
–SB 855 (Wiener, D-San Francisco), would expand the ability of Californians who buy insurance or get it from their employers to obtain treatment for w a wide array of mental health and substance use disorders. It would require commercial health insurers to pay for medically necessary treatment of any behavioral health or substance use disorder listed in the DSM-5, the American Psychiatric Association manual that defines mental health conditions. The bill is sponsored by the Steinberg Institute and The Kennedy Forum, a national mental health policy group founded by former Congressman Patrick Kennedy.
–SB 803 (Beall, D-San Jose), would require the state to establish statewide requirements for certifying peer support specialists –people who have personal experience with the mental health system who are trained to support and assist others who are going through mental health challenges. Counties that choose to do so would be responsible for implementing and managing the program and could access federal funds to partially cover the cost of employing peers, helping expand the workforce of people who can respond to the state’s mental health crisis.
–AB 1766 (Bloom, D-Santa Monica), would require the state Department of Social Services to annually report the number of board-and-care homes that serve low-income Californians living with a severe mental illness, track their closures, and notify county behavioral health departments within three days of receiving notice that an operator plans to close a home. Board-and-care homes are a crucial piece of the housing spectrum for people living with severe mental illness. AB 1766 would provide policymakers statewide data to address the loss of these homes and help counties identify appropriate living options for people with severe mental illness.
–AB 890 (Wood, D-Santa Rosa), would allow nurse practitioners (NPs) to work to the full scope of their license by expanding their ability to treat patients, including those affected by mental health challenges, without a physician’s supervision. It would help address the large and growing workforce shortage of primary care physicians in California. The US Dept. of Veterans Affairs gives 6,000 NPs working in the VA system this authority, and the California Future Health Workforce Commission has urged California to do the same. California today is the only western state that restricts NPs from practicing without physician oversight.
–AB 1845 (Luz Rivas, D-Los Angeles), would create a Secretary of Homelessness in the Governor’s Cabinet to coordinate and consolidate multiple programs aimed at ending homelessness. The huge and growing number of Californians experiencing long-term homelessness includes a large number of people living with severe mental illness.
–AB 1976 (Eggman, D-Stockton), would amend the bill known as Laura’s Law, making it permanent and requiring all counties to implement the program, unless they formally opt out of doing so. The original 2002 law authorized counties to start programs to provide intensive assisted outpatient treatment (AOT) to people suffering from severe mental illness and enabled judges to order treatment for those who declined to accept offered services. (Editor’s Note: Most are voluntary)
–AB 2112 (Ramos, D-Highland), would create within the Department of Public Health an Office of Suicide Prevention to advise the state and regional partners on best practices for suicide prevention.
–AB 2054 (Kamlager, D-Los Angeles), would create a demonstration pilot grant program to expand and test community-based responses to all types of crises, including those caused by mental health challenges, for the state’s most vulnerable populations.
–AB 2360 (Maienschein, D-San Diego), requires health insurers to develop telehealth networks for consultation with psychiatric clinicians by primary care physicians, pediatricians, and ob/gyns to support their provision of mental health treatment to children and pregnant women (up to one year postpartum).
—
Editor’s Note: Sigrid Bathen is a Sacramento journalist and former Sacramento Bee reporter who taught journalism at Sacramento State for 32 years. She has long covered mental-health issues, for several publications, and her writing has won numerous awards. She has covered health care, education and state government for Capitol Weekly since 2005. Her web site is www.sigridbathen.com. She can be reached at [email protected].
