Dan Jacobson
Attorney
Phone: (714) 505-4872
Email: dlj@jacobsonlawyers.com
Dan Jacobson is a practicing attorney in Tustin; a law professor-emeritus; a retired Governor of the California Insurance Guarantee Association, having been appointed to that position by Congressman John Garamendi, when Congressman Garamendi was California's Insurance Commission; and, a recently retired member of California's Board of Accountancy, having been appointed to that position by Assembly-Speaker Anthony Rendon.
This article is
intended to provide a historical perspective on the need for the CARE Act and
to explain the state's CARE policies, primarily by way of described hearings,
definitions and other aspects of the CARE Act. This article is not intended to
be a recipe for handling a CARE case. There are too many nuanced hearings,
definitions, etc., to prepare such a recipe in this space.
History
On Sept. 2, 1967,
then-Governor Ronald Reagan signed the Lanterman-Petris-Short Act (LPS Act) into
law. That law became operative on July 1, 1969 (Welfare and Institutions Code §
5000, Lexis Annotations, History). Unless otherwise noted, all statutory
references are to the Welfare and Institutions Code. Assemblymembers Frank
Lanterman and Nicholas Petris were concerned about the nonconsensual treatment
of patients in California's state mental institutions, according to Dan
Morain's May 30, 2023, Capitol Weekly article, "The complicated birth of the
Lanterman-Petris-Short Act." Alan Short was a state senator who "was less
interested in granting greater rights to state hospital patients than in
expanding legislation he had [previously] carried. . .to help local governments
pay for certain mental health services," Morain wrote in his Oct. 24, 2024 article for the USC Annenberg Center for Health
Journalism, "The Republican who emptied the asylums." Well after its passage,
all three of the legislators after whom the LPS Act was named sharply
criticized the law. Lanterman's comment is illustrative. He said that he wanted
"the money saved by emptying state hospitals [to] pay for patients' needs in their
communities." The asylums were emptied, but the money didn't follow the
patients to their communities. Id. The LPS Act still exists (§§
5000-5579.) It allows for time-limited nonconsensual treatment of mental
disorders. See e.g., Wel & Inst Code § 5150(a). Under strict
circumstances, it also allows conservatorships to be created to protect
severely mentally ill people. See, e.g., § 5357(d).
Homelessness
"Correlation doesn't
imply causation, but it does waggle its eyebrows suggestively and gesture
furtively while mouthing 'look over there."' -- Randal P. Munroe, author and engineer.
Those of us with a few grey hairs and who came up in the 1960s
and 1970s did not even know of the concepts of homelessness. We learned about that sad concept in the
1980s, when homeless people began to appear, and then their ranks grew
exponentially. Recall that the LPS Act became operative in 1969, and as shown
above, that Act emptied the state's mental institutions. Correlation.
While there are
reasons for homelessness such as personal and societal economics, to quote
Munroe, we have to "look over there"; we have to look
at the release of the severely mentally ill to see if the LPS Act was a cause
that created the effect of homelessness. A statistically rigid UCSF study
conducted between October 2021 and November 2022 relates the LPS Act
correlation to homelessness causation. In a 2023 study conducted by the UCSF
Benioff Homelessness and Housing Initiative, coauthors Margot Kushel and Tiana
Moore wrote that, "The majority (82%) [of homeless Californians] reported a
period in their life where they experienced a serious mental health condition.
More than one quarter (27%) had been hospitalized for a mental health
condition." The findings appeared in the report "Toward a New Understanding:
The California Statewide Study of People Experiencing Homelessness," published
by UCSF. So it is more than reasonable to say that a
serious mental health condition causes homelessness.
Thus, the CARE Act's
attack on mental illness is an attack on homelessness.
A new approach: The
CARE process
Lanterman passed
away in 1981, but the facts that frustrated him and his cohorts in life --
particularly released mental patients not receiving care in the community --
continued. Governor Newsom and the legislature decided that "[a] new approach
is needed to act earlier and to provide support and accountability, both to
individuals with these untreated severe mental illnesses and to local
governments with the responsibility to provide behavioral health services.
California's civil courts will provide a new process for earlier action,
support, and accountability, through a new Community Assistance, Recovery, and
Empowerment (CARE) process." Umberg, SB-1338, § 1(c), Senate (2021-2022).
A couple of
misconceptions
The CARE process is
not a conservatorship. In fact, an individual who is under an LPS
conservatorship "may [be referred] to CARE Act proceedings" (§ 5978(a)) thus
lifting the conservatorship and moving the ill person into the
non-conservatorship CARE process. The CARE courts do not comprise a separate
court system. Rather, the CARE Act provides a comprehensive, individualized and
court-supervised program utilized by the Superior Court to attack severe mental
illness. See §§ 5971(f), 5979(b)(1). In the larger counties, which have
specialized courts, the CARE Act is generally handled by the Probate Division.
The policies
behind the CARE process
A careful reading of
the 25-page CARE Act makes apparent that the Act's policies are meant to cure
the severely mentally ill or at least to minimize their illness while fiercely
protecting the patients' rights and to utilize community mental health entities
to work toward these wellness goals. See § 5801. That's a tall hill to
climb but one that Lanterman, Petris and Short would say should be climbed.
The "CARE
process"
'"CARE process'
means the court and related proceedings to implement the CARE Act." § 5971(c).
An indispensable part of that process is the creation and implementation of a
"CARE agreement" or a "CARE plan." A CARE plan is "an individualized,
appropriate range of community-based services and supports, . . . which include
clinically appropriate behavioral health care and stabilization medications,
housing, and other supportive services, as appropriate." A CARE agreement is
the same thing as a CARE plan, except that such an agreement comes to fruition
via a "voluntary settlement agreement entered into by the parties" (§ 5971(a)),
whereas a CARE plan is decided upon by the court. § 5977.1(d)(2). In the case
of a CARE plan the court, "[a]fter consideration of the plans proposed by the
parties, . . . shall adopt the elements of a CARE plan that support the
recovery and stability of the respondent. The court may issue any orders
necessary to support the respondent in accessing appropriate services and
supports."
The parties
Some definitions
regarding those primarily involved with the CARE process are in order:
The
petitioner is "the entity who [initially] files the CARE Act petition with the
court" (§ 5971(l)).
The
respondent is "the person who is subject to the petition for the CARE process" (§
5971(o)).
"'County
behavioral health agency' means the local director of mental health services . . . the local behavioral health
director, or both as applicable" (§ 5971(e)).
'"Supporter'
means an adult designated by the respondent who assists the person who is the
subject of the petition, which assistance may include supporting the person to
understand, make, communicate, implement, or act on their own life decisions
during the CARE process, including a CARE agreement, a CARE plan, and
developing a graduation plan" § 5971(r)).
Section 5971(r)
emphasizes that the CARE Act does not create a conservatorship ("A supporter
shall not act independently").
A bit more of an
expansive explanation of the roles of the parties helps to illustrate the
policies of the CARE Act. There are many persons who can file a CARE Act
petition and thus become the original petitioner. There is a long list
of such persons at Section 5974. That list includes people close to the
respondent, such as "[a] person with whom the respondent resides" (Section
5974(a)), and "[a] spouse, parent, sibling, child, or grandparent [of the]
respondent" (§ 5974(b)). Under specified strict conditions, relevant
institution-related persons can also be a petitioner -- for example, a first
responder (§ 5974(f)) and "[t]he director of a public or charitable
organization" (§ 5974(d)).
In an apparent
attempt to protect respondents who ought not be respondents, the criteria for
being a respondent are long and medically detailed. The criteria are outlined
in § 5972, and include items such as, "The person is currently experiencing a
serious mental disorder . . . and has a diagnosis identified in the disorder
class: schizophrenia spectrum and other psychotic disorders, as defined in the
most current version of the Diagnostic and Statistical Manual of Mental
Disorders." The definition of a "serious mental disorder" from Section
5600.3(b)(2) is incorporated into Section 5972(b). According to the statute:
'"Serious mental
disorder' means a mental disorder that is severe in degree and persistent in
duration, which may cause behavioral functioning which interferes substantially
with the primary activities of daily living, and which may result in an
inability to maintain stable adjustment and independent functioning without
treatment, support, and rehabilitation for a long or indefinite period of time. Serious mental disorders include, but are
not limited to, schizophrenia, bipolar disorder, post-traumatic stress
disorder, as well as major affective disorders or other severely disabling
mental disorders." (Section 5600.3(b)(2))
The importance of
filing an appropriate petition
The petitioner must
file either an affidavit from a "licensed behavioral health professional" with
details enumerated at Section 5975(b)(1), or provide
evidence of events described at Section 5600.3(b)(2). Judicial Council form
CARE-102 should be used if the petitioner is a licensed behavioral health
professional. Judicial Council form CARE-100 should be used by any other
petitioner. Judicial Council form CARE-101 is the affidavit form to be
completed by a licensed behavioral health professional and included with the
initial petition filing.
That the initial
petition papers properly allege the correct diagnostic issues in the manner
prescribed by law is very important. That is because, before the initial
hearing, "The court shall promptly review the petition [upon its filing] to
determine if the petitioner has made a prima facie
showing that the respondent is, or may be, a person [with the severe
mental conditions referenced above]." § 5977(a)(1). If the petition papers do
not make such a prima facie showing, the court may
dismiss the case without prejudice. § 5977(a)(2). Recall that this judicial
review is prior to the first hearing, so that judge does not have the benefit
of the parties' oral input.
Abraham Lincoln is
said to have noted that "A lawyer who represents him [or her] self, has a fool
for a client." For those who cannot afford a lawyer to work on the entire case,
this may be a situation where a clearly defined limited representation should
be used. This is because, in most cases, the original petitioner will be
substituted out, and because the other participants should want to strive for
the same thing as the original petitioner.
Substitution of
original petitioner
"The director of a
county behavioral health agency, of the county in which the respondent resides
or is found" can also be an initial petitioner. If he or she is not the initial
petitioner, then the court must substitute said director into the case, in
place of the initial petitioner, at the first hearing on the CARE matter. Section
5972(b)(7)(A). (Note that if the original petitioner is an individual living
with the respondent or a close family member as described in § 5974(b), then
the original petitioner continues to have rights enumerated in the subsections
under Section 5977(b)(6)(B).) Stepping back from the trees to view the forest,
notice the strong state policy to involve the respondent's community in his or her
care. See Umberg, SB-1338, Section 1(c), Senate (2021-2022).
Right to counsel
The respondent has
the right to counsel at all stages of the CARE process. In fact, that right
must be enforced "regardless of the ability to pay" (Section 5976(c)). The
court must attempt to "[a]ppoint a qualified legal service project [see Business
& Professions Code Section 6213-6214.5] to represent the respondent." If no
such service agrees to such appointment, then the court must appoint a public
defender to represent the respondent. (Section 5976(f)(3)(A)(ii)). Any images
from the Jack Nicholson movie "One Flew Over the Cuckoo's Nest" should fade
with the knowledge that the CARE respondent will have counsel regardless of the
respondent's ability to pay for such.
Available
programs and insurance
There is a plethora
of mental health programs listed under Section 5982 from which the court and
the parties can choose to develop a CARE agreement or plan. However, a
cautionary note is set forth in Section 5982(d): "All CARE plan services and
supports ordered by the court are subject to available funding." SB-1338
provides little in the way of funding. See Section 5979. The good news
is that these Section 5982 programs are funded. Further, SB-1338 utilizes
insurance.
Senate Bill1338
added Health and Safety Code Section 1374.723. That statute requires the
following (the lower-case letters and numerals correspond to the appropriate Section
1374.723 subsection):
(a) Health care
plans post Aug. 1, 2023 that cover "hospital, medical, or surgical expenses
shall cover the cost of developing a[] CARE evaluation" (see Section 5977.1)and "the provision of all
health care services for an enrollee when required or recommended for the
enrollee pursuant to a CARE agreement or a CARE plan . . . regardless of
whether the service is provided by an in-network or out-of-network provider[,]"
except as specified in subdivision (g).
(b)(1) "A health
care service plan shall not require prior authorization for services, other
than prescription drugs, provided pursuant to a CARE agreement or CARE plan" (See
subdivision (g) for Medi-Cal exceptions to Health and Safety Code Section
1374.723.)
Native Americans
Note that there are
a few special rules that apply to Native Americans. These rules follow the CARE
Act's policy of involving the respondents community in
the respondent's care. See, for example, Section 5977(b)(6) and 5974(j).
Effectiveness
The CARE Act has
only recently been operational throughout the state. "The CARE Act was
implemented in two cohorts. Cohort I began on October 1, 2023, and included
seven counties: Glenn, Orange, Riverside, San Diego, Stanislaus, and Tuolumne,
and the City and County of San Francisco. Los Angeles County is in Cohort II
but elected to implement early, on December 1, 2023. The remaining Cohort II
counties were required to implement on or before December 1, 2024." See the CARE-ACT and Sections 5970.5(a)
and (b).
According to
available judicial council data, "869 petitions filed from Oct. 1, 2023,
through Oct. 31, 2024. During that same time, courts ordered more than 175 care
agreements and plans, and 516 petitions were still being actively engaged."
Conclusion
Use of the CARE Act
should bring relief to Californians with severe mental illness while respecting
their rights. Lanterman, Petris, and Short wanted severely mentally ill
individuals to be free of confinement and to be treated. The CARE Act should
afford these legislators a measure of posthumous peace.