California largest, most urban counties have drafted a letter to the Governor regarding CARE Courts. The draft reads as follows:
“On behalf of the Urban Counties of California, a 14-member coalition of the state’s most populous counties, I write to provide comments and recommendations on the Governor’s Community Assistance, Recovery and Empowerment (CARE) Court proposal. Urban counties appreciate the CARE Court’s cross-jurisdictional approach to providing new ways to encourage individuals with serious mental illness to receive treatment. We see the effects of untreated mental illness in our communities across California. While CARE Court could play an important role in helping individuals with very specific mental health needs access treatment, we must be clear that it will not fundamentally solve our homelessness crisis. However, the Governor’s CARE Court framework offers an innovative approach to rethink systems providing services to certain individuals with specified mental health conditions (schizophrenia and psychosis).
In the spirit of collaboration and partnership and in an effort to be constructive, urban counties share the following questions, comments and recommendations.
Overall Construct, Protections, and State-Local Fiscal Relationship
While there are many details to be finalized, it is clear that counties will require new resources to successfully fulfill our role in the CARE Court framework. Counties understand the need to prioritize the most vulnerable in our communities, but we cannot simply redirect resources or focus without creating a new gap in our systems. Therefore, under almost any feasible construct, CARE Court will mandate additional workload for counties. Additionally, counties believe it is not just reasonable for the state to fund this workload, but rather required under the constitutional protections for state reimbursable mandates and Proposition 30 (2012) impacted programs.
Behavioral Health Issues
Equal Access. Medi-Cal ensures equal access for all enrollees – no individual or diagnosis is prioritized over others. Is CARE Court expected to prioritize services for Medi-Cal eligible individuals in this Court over individuals who enroll in Medi-Cal specialty mental health services through other doors? If so, does this create equal access issues? Are state or federal statutory changes necessary to prioritize CARE Court participants?
Eligibility. Not all individuals who are referred to CARE Court and accept services will be eligible for Medi-Cal. Will the service component be means tested? If the individual is not eligible for Medi-Cal (perhaps has private insurance), are counties compelled to serve them? Who pays for services for individuals in CARE Court who are not Medi-Cal eligible?
Recommendation: Individuals should be enrolled in Medi-Cal, if otherwise eligible, as part of the CARE Court process. If an individual in CARE Court has private insurance, state law should clarify that the individual’s health plan is responsible for arranging for and paying for treatment services. The health plan should have a role in ensuring the court-ordered treatment plan is provided. Alternatively, if the state is proposing that counties deliver services to individuals not eligible for Medi-Cal, the state should provide funding to reimburse counties for providing services to a new population.
Assessment. The proposal does not appear to require any documentation of qualifying condition prior to someone petitioning Care Court. Does everyone referred to Care Court get the full assessment, or is there some review of the petition to determine that there is sufficient basis to proceed to the assessment? If the petition is reviewed, what entity will conduct the review?
Workforce. Addressing behavioral health workforce shortages is foundational to expanding services, as the pandemic turned behavioral health workforce shortages into a crisis. Some county behavioral health agencies have vacancies of 30-40% or more. The providers that counties contract with for behavioral health services are also struggling with high vacancy rates. Almost half the counties in California are designated as behavioral health workforce shortage areas, with the Central Valley and Inland Empire experiencing severe shortages. Staff are leaving for more pay, less complex work, and less stress. Counties are increasing provider contracts so that providers can offer higher salaries but despite these efforts, agencies continue to struggle with vacancies. Urban counties remain concerned that behavioral health system reforms will fall short without significant workforce investments, and workforce investments now will not resolve shortages overnight.
- Expand educational slots for behavioral health professionals, such as licensed marriage and family therapists, licensed clinical social workers, psychologists, psychiatrists, addiction medicine physicians.
- Expand internships in public behavioral health system.
- Provide funding to support tuition assistance, loan repayment, and internships.
- Develop a more diverse pipeline by partnering with high schools and community colleges in underserved communities.
- Consider piloting CARE Court in select counties, or phasing implementation, based on an evaluation of system readiness.
Facilities. It remains incredibly difficult to site behavioral health treatment facilities. While urban counties appreciate the CEQA exemptions provided for the Behavioral Health Continuum Infrastructure Program in the 2021-22 state budget, siting continues to be very difficult – with some of our city partners unwilling to site facilities in their jurisdictions or placing unrealistic barriers to site such facilities.
Recommendation: Provide incentives in state law for cities and counties to site behavioral health treatment facilities.
To establish an LPS conservatorship under existing law, the Court must find, without a reasonable doubt, that the mentally ill person is gravely disabled. Gravely disabled means that, because of a mental disorder, the person cannot take care of his/her basic, personal needs for food, clothing, or shelter.
- What is the nexus between refusing services through CARE Court and grave disability definition for LPS conservatorships?
- If the CARE Court is upstream, are individuals going to otherwise meet the definition for conservatorships?
- Is the Administration proposing to change the factors considered for a conservatorship?
- For example, does the refusal to accept CARE Court services create a presumption or contribute to a finding of grave disability?
- Does granting the court the authority to use refusal of CARE Court services as a factor in establishing a conservatorship create equity issues? (Individuals may have transportation and other issues associated with poverty that limit his/her ability to get to court.)
- Can the court in a conservatorship/guardianship proceeding refer someone to CARE Court in lieu of the conservatorship or guardianship?
- If CARE Court or new statutory presumptions increase LPS conservatorships, Department of State Hospitals (DSH) and locals do not have capacity for their placement.
- What are the legal ramifications of creating a precedent where providers and health plans can be held accountable to specific services being delivered to a specific individual – potentially above and beyond existing time and distance standards?
Recommendations: Counties should not be penalized for issues outside of their control (loss of providers, closure of facilities, natural disasters). Counties should not incur fiscal penalties if they are in compliance with Medi-Cal network adequacy requirements. If CARE Court must rely on new sanctions to improve homelessness among this population, all levels of government must face new sanctions, including potentially Continuums of Care.
Role of Judges. Urban counties have several questions about the role of the judge in CARE Court, including:
- Can the judge compel a county to provide services that are not available today?
- Can the judge compel counties to work across county lines to provide services?
- Can a judge order the county to provide services for which there is not state funding or a pre-existing county mandate? If yes, who bears the cost of those new programs or services?
- Can the judge order services not available under the Medi-Cal program for Medi-Cal recipients? If so, how will those services be funded?
- Does the judge have to approve the CARE plan developed by county behavioral health agencies?
Recommendation: Provide a statutory framework for what can and cannot be included in a CARE Court treatment plan. Clarify in state law that the CARE Court judge cannot order services and treatment for Medi-Cal beneficiaries that is not covered by Medi-Cal specialty mental health plans.
Public Defender. The proposal creates additional caseload for public defenders that does not exist today. Public defenders already have large caseloads.
Recommendation: Provide resources for public defenders to adequately represent the new CARE Court caseload.
Petitions. Under current court procedures, there is a filing fee to file a conservatorship petition in civil court. Will there be a fee to file a petition in CARE Court? If so, how much will the filing fee be? Would a no-fee structure encourage over-referring? If public agencies file petitions in CARE Court, will they be required to pay filing fees?
- Is there sufficient physical space in court facilities for additional hearings?
- Who is responsible for performing and paying for the initial assessment for entrance into the CARE Court?
- Is there sufficient workforce capacity to meet the anticipated need for assessments? Could the need for additional, similar workforce impact the ability of criminal courts to process IST cases?
Recommendation: In conjunction with courts and counties, assess the physical space needs for the additional hearings.
Justice-Involved Populations. While intended to be upstream, will individuals on probation or parole who otherwise fit the criteria for CARE Court be eligible for the program?
Start-Up / Timeline. Is there sufficient time between now and January 1, 2023, for courts and mental health services to prepare for the creation of CARE Court?
Recommendation: Phase-in implementation to allow additional time for counties and courts to prepare. Alternatively, pilot CARE Court in several jurisdictions prior to statewide implementation.
“Supporter” Role. Who will fulfill the “supporter” role? Are these state funded/employed positions, local funded/employed positions, or contracts with community-based organizations? How will “supporters” interface with courts, probation, or law enforcement in referrals from criminal court? How will the “supporter” or care plan interface with pretrial programs?
Homelessness Funding. Big cities, Continuums of Care, and counties all receive direct, flexible homelessness funding through the HHAP program, with counties receiving the smallest share of funds. Will cities or Continuums of Care be compelled to prioritize any local flexible homelessness funds for CARE Court coordination, outreach, services, or housing?
Evaluation. Who is going to evaluate whether CARE Court works? Who will evaluate the impact of CARE Court on other systems, like on public conservators and adult protective services?
Recommendation: The proposal should include an evaluation component that examines outcomes for CARE Court participants, as well as impacts on other public systems.”
We will provide the finalized letter in next week’s newsletter.
Governor Newsom Holds CARE Court Roundtable
Proposal Gets Put Into Another Bill
Last week, we reported that Senators Umberg and Eggman amended SB 1338 Community Assistance, Recovery, and Empowerment (CARE) Court Program as a vehicle for CARE Court discussions. Assemblyman Bloom has also introduced AB 2830, The Community Assistance, Recovery, and Empowerment (CARE) Court Program.
Homeless & Disability Rights Organizations React
Homelessness and disability rights activists sent a letter to Secretary Dr. Ghaly weighing in on CARE Court. You may view the letter here.
Mental Health & Anti-Recidivism Groups React
A coalition of Mental Health, Supportive Housing, and Anti-Recidivism groups sent a letter to the Governor and Secretary Dr. Ghaly weighing in on CARE Court. You may view the letter here.
CSAP and Others Meet With Newsom Administration Officials
Late today, CSAP Government Affairs Committee (GAC) Chairman Steve Koh, and advocates Paul Yoder and Priscilla Quiroz met with other specialty medical organizations and staff from the State Health and Human Services Agency (HSSA) staff. Dr. Koh gave HSSA staff plenty to consider going forward.
CSAP is in the process of preparing comments to the Newsom Administration. If any of you want to provide your own feedback to the Governor’s staff, this is the email to do so: firstname.lastname@example.org. If you send comments, please cc Paul Yoder, email@example.com.
CARE Court Resources