The Honorable Mia Bonta Chair, Assembly Health Committee 1020 N Street, Room 390 Sacramento, CA 95814
RE: Opposition to AB 20 (DeMaio)
Dear Chair Bonta,
Mental Health America of California (MHAC) writes in opposition to AB 20 (DeMaio), legislation that would repeal Housing First in an attempt to end homelessness. However, Housing First is a policy model that prioritizes providing permanent supportive housing to unhoused individuals, immediately ending their homelessness regardless of if they receive services. Repealing Housing First would have the opposite effect to the legislation’s intended purpose, exacerbating homelessness rather than solving it.
MHAC is a peer-run organization leading the state in behavioral health public policy and advocacy since 1957. The mission of MHAC is to assist and encourage communities, families and individuals to experience hope, wellness and recovery from mental health and substance use disorder issues through voluntary services that are delivered in their local community with compassion and respect for everyone’s dignity and autonomy.
Housing First plays a vital role in advancing MHAC’s mission by ensuring that housing remains a stable support for individuals in recovery, particularly for unhoused individuals facing behavioral health challenges. Many unhoused individuals experience substance use and mental health challenges while living on the streets. An analysis of the U.S. Department of Housing and Urban Development’s Continuum of Care Program found that 23% of unhoused Californian’s experience chronic substance abuse.[1] Housing First ensures access to permanent supportive housing by protecting individuals from housing discrimination, irrespective of their substance use, treatment history, or engagement in services. As California continues investing in resources to support our unhoused community, housing remains the most effective tool for getting people off the street. Once housed, individuals are more likely to voluntarily seek out mental and behavioral health services.
It is for these reasons MHAC must oppose AB 20 (DeMaio) and ask for your “No” vote. If you have any questions, or if MHAC can provide any assistance on this bill or any other behavioral health legislation, please do not hesitate to contact me or our Director of Public Policy, Karen Vicari, at kvicari@mhaofca.org.
The Honorable Mia Bonta Chair, Assembly Health Committee 1020 N Street, Room 390 Sacramento, CA 95814
Re: Support for Assembly Bill 641 (Gonzalez)
Dear Chair,
Mental Health America of California (MHAC) is pleased to support AB 641 (Gonzalez), legislation that when funds are appropriated would direct the Depart of Public Health to develop a drug-induced movement disorder awareness program. Drug-induced movement disorders, such as Tardive Dyskinesia, are the result of long-term use of antipsychotic medication for serious mental illness and results in the involuntary and repetitive movement of the face, toros, and/or other body parts.
MHAC is a peer-run organization leading the state in behavioral health public policy and advocacy since 1957. The mission of MHAC is to assist and encourage communities, families and individuals to experience hope, wellness and recovery from mental health and substance use disorder issues through voluntary services that are delivered in their local community with compassion and respect for everyone’s dignity and autonomy.
Among the various choices individuals have for addressing their mental and or behavioral health challenges, taking antipsychotic medication is one option. However, taking antipsychotics comes with its own symptoms and risks, a drug-induced movement disorder being one of them. Due to a lack of awareness and the unpredictability of developing such a disorder, many individuals may not recognize the symptoms or know when to consult their healthcare provider. While the severity of symptoms can range from mild to severe, a drug-induced movement disorder can have lifelong mental and physical impacts, adding to the challenges of managing one’s mental health.
By raising awareness about drug-induced movement disorders, California can ensure that individuals who choose to take antipsychotic medication are well prepared to manage the potential risks. For these reason MHAC supports AB 641 (Gonzalez) and asks for your “Aye” vote. If you have any questions, or if MHAC can provide any assistance on this bill or any other behavioral health legislation, please do not hesitate to contact me or our Director of Public Policy, Karen Vicari, at kvicari@mhaofca.org.
The Honorable Matt Haney Chair, Assembly Committee on Housing and Community Development 1020 N Street, Room 156 Sacramento, CA 95814
Re: MHAC Support for AB 255 (Haney)
Dear Chair Haney,
Mental Health America of California is writing to express our support of AB 255 (Haney), legislation that would authorize state programs to fund supportive-recovery residences with an emphasis on abstinence.
MHAC is a peer-run organization that has been leading the state in behavioral health public policy and advocacy since 1957. The mission of MHAC is to assist and encourage communities, families and individuals to experience hope, wellness and recovery from mental health and substance use disorder issues through voluntary services that are delivered in their local community with compassion and respect for everyone’s dignity and autonomy.
For individuals in recovery who secure permanent supportive housing, many prefer the option of living in a drug and alcohol-free environment. Under the current Housing First model, state-funded housing programs cannot deny housing solely based on drug or alcohol use unless other violations occur. This bill would authorize up to 25% of a county’s total permanent supportive housing inventory to offer a drug- and alcohol-free environment for those who voluntarily choose it. If participation in a supportive recovery residence remains a voluntary choice and is not the individual’s only available housing option, this bill would align with the Housing First model and supports MHAC mission to increase access to essential supports and services.
By respecting an individual’s right to self-determination in choosing the housing environment that best supports their recovery journey, this bill promotes a person-centered approach to care. For these reason MHAC supports AB 255 (Haney) and asks for your “Aye” vote. If you have any questions, or if MHAC can provide any assistance on this bill or any behavioral health legislation, please do not hesitate to contact me or our Director of Public Policy, Karen Vicari, at kvicari@mhaofca.org.
The Honorable Gavin Newsom Governor, State of California 1021 O Street, Suite 9000 Sacramento, CA 95814
RE: Act Now to Help Save Over 9,700 Foster Children from Being Displaced by the FFA Insurance Crisis
Dear Governor Newsom:
On behalf of the California Alliance of Child and Family Services (the CA Alliance), and the undersigned organizations, we request the Governor and its Administration to lead in finding a solution to prevent over 9,700 foster children under the care of Foster Family Agencies (FFAs) from being displaced by the FFA insurance crisis. If we don’t act now, FFAs could be forced to close their doors, leading to foster children potentially being uprooted from their home, school, community, healthcare provider, social worker, and current placements. We ask the Governor’s Office and Administration to work in collaboration with the CA Alliance to find solutions tothe FFAs insurance crisis so they can continue to support parents working towards reunification, foster families, and the over 9,700 foster youth under their care.
Background on the CA Alliance & FFAs The CA Alliance is a member association that represents over 160 nonprofit community-based organizations that provide behavioral health, child welfare, education, prevention, juvenile justice and other critical services to children, youth and families in public systems, including FFAs. Many of these services are provided through contracts with county public agencies and/or health plans.
FFAs play a crucial role in helping the Administration achieve its goals to reform the child welfare system. Counties rely on FFAs to help support the needs of foster children because FFAs specialize in serving medically fragile children, LGBTQ+ youth, older foster youth and children with higher needs. FFAs are trained to care for youth who have experienced abuse, exploitation, poverty, and racism and can offer services that counties do not have the capacity to provide.
There are nearly 45,000 children and youth in the California foster care system, the vast majority of whom have been separated from their parents due to neglect or abuse. Today, approximately 9,700 of those children are placed under the care of FFAs, which is nearly 1 in 5 foster youth. FFAs help to support family reunification efforts, which aim to safely return children in foster care to their biological families whenever possible and appropriate. This means FFAs work closely with birth families and offer parenting classes, substance abuse counseling, mental health services, and other resources designed to help parents or relatives create a safe and stable home environment. FFAs also assist with transporting and supervising visits between foster children and their relatives, which could be a few hours away.
When reunification is not possible, FFAs work to recruit foster parents and help them get certified to host foster children. FFAs also help to train foster families, and cover training expenses, so these families can properly support high-risk placements and ensure foster parents are well-prepared to handle the complexities of fostering. FFAs provide 24/7 on call assistance and help connect foster parents to social workers in moments of crisis, many times helping the family stabilize so they can continue offering foster children a safe home.
FFA Insurance Crisis FFAs must be insured to be contracted to accept children and youth into their foster homes. Most insurers have left the market and no longer insure FFAs. A single insurance company, Nonprofits Insurance Alliance of California (NIAC) currently covers about 90% of all the FFAs in California. In June of this year, NIAC made the shocking announcement that it will be sending out notices of nonrenewal for coverages for all FFAs in the state of California.
This is forcing most FFAs to find alternative insurance, if it can be found, and if the FFA can afford the potential increased costs of a different insurance policy. These increased costs are not covered by the rates paid to FFAs, and therefore result in FFAs making difficult decisions, and in some cases, forcing them to close.
Impact of FFA Closures to the Child Welfare System FFAs closing would result in California’s county welfare agencies needing to manage the placements of displaced foster children and youth. For foster children, being uprooted after finally settling into a family home is a devastating setback. It means starting from scratch in another new home, starting over with therapists and support specialists, even having to start a new school mid-year. Worse, it means losing their sense of stability. Multiple research studies show that the loss of a social worker alone can significantly disrupts the permanency process and severs yet another bond in a foster child’s life: with each loss of a social worker, the rate of achieving permanency for a foster youth drops dramatically from 74.5% with one social worker to less than 3% with three or more social workers. 1 FFAs help to create consistency in the lives of foster children.
If FFAs close, the lost capacity will mean that foster children will have a greater chance of being in unlicensed settings for long periods of time such as welcome centers, offices, hotels, and could even become homeless.
Action Needed to Prevent Displacing over 9,700 Foster Children This crisis will not only impact the provision of FFAs that place children and youth with foster families, but also impact adoptions of children in foster care. FFAs who are dually licensed as adoption agencies are often contracted by counties to help children be adopted through foster care. In 2024, 30% of foster youth (6,505) were adopted out of foster care statewide, thanks in part to FFAs. We ask that the Governor’s Administration to work with the CA Alliance and FFAs to find solutions that help FFAs remain open, such as creating a pool offunds to help FFAs offset the higher insurance premiums and build a risk pool to avoid a future insurance crisis.
Should you require any additional information or documentation to process this change, please do not hesitate to contact Elizabeth Oseguera at eoseguera@cacfs.org. Thank you for your attention to this matter.
The Honorable Aisha Wahab California State Senate 1021 O Street, Suite 7330 Sacramento, CA 95814
RE: Senate Bill 402 (Wahab) – OPPOSE
Dear Senator Wahab:
Mental Health America of California (MHAC) respectfully opposes Senate Bill 402, legislation which expands eligibility of people who can place individuals on a 5150 hold to private practicing licensed mental health professionals.
MHAC is a peer-run organization leading the state in behavioral health public policy and advocacy since 1957. The mission of MHAC is to assist and encourage communities, families and individuals to experience hope, wellness and recovery from mental health and substance use disorder issues through voluntary services that are delivered in their local community with compassion and respect for everyone’s dignity and autonomy. Access to voluntary mental and behavioral health support and services are key to preventing people from experiencing a crisis.
If a person is experiencing a crisis and needs to be placed on a 5150 hold, the decision should be made by professionals held to the highest standards. However, Senate Bill 402 lowers these standards by allowing private practicing licensed professionals to be eligible for county designation to write holds. These professionals do not need to be county employees or contractors, which creates a gap in accountability. Not all mental health professionals receive the same training or have experience with crisis response, and this bill does not ensure that the most qualified professionals are making these critical decisions.
Previously adopted legislation, Senate Bill 43 (Eggman), expanded the criteria for placing individuals on a 5150 hold to include those with a “severe substance use disorder” or a “co-occurring mental health disorder and a severe substance use disorder.” Under the current bill language, this expansion would allow a marriage and family therapist to write a hold for someone with a substance use disorder, which may not be appropriate given their training and experience.
This bill poses a variety of challenges regarding the accountability of hold writers and the applicability of the different types of licensed mental health professional to be writing holds during different types of mental and behavioral health crises. Furthermore, denying an individual of their civil rights is not conducive to the recovery of an individual and the decision should not be made by unqualified persons. For these reasons, we oppose Senate Bill 402. If you or your staff have any questions, or if Mental Health America of California can be of any assistance on this or any other behavioral health bill, please do not hesitate to contact me at hstrunk@mhac.org, or our Interim Director of Public Policy, Karen Vicari at kvicari@mhacofca.org.
In Community,
Heidi Strunk President & CEO Mental Health America of California
The Honorable Angelique Ashby Chair, Senate Business, Professions and Economic Development Committee 1021 O Street, Room 3320 Sacramento, CA 95814
Subject: Support for AB 1991 (Bonta)
Dear Chair,
Mental Health America of California (MHAC) is pleased to support AB 1991 (Bonta), legislation which would require certain boards that regulate healing arts licensees or registrants to collect workforce data.
MHAC is a peer-run organization leading the state in behavioral health public policy and advocacy since 1957. The mission of MHAC is to assist and encourage communities, families and individuals to experience hope, wellness and recovery from mental health and substance use disorder issues through voluntary services that are delivered in their local community with compassion and respect for everyone’s dignity and autonomy. However, the behavioral health workforce shortage in California is a major barrier preventing people from receiving adequate care in a timely manner.
This bill will help the state address workforce needs by collecting accurate data such as a licensee’s or registrant’s type of employer (i.e. clinic, hospital, managed care organization, or private practice) and anticipated year of retirement. This information can help guide behavioral health workforces’ investments and the efficient use of current available staff. For this reason, we support AB 1991(Bonta) and ask for your “aye” vote. If you have any questions, please do not hesitate to contact me or our Public Policy Director, Karen Vicari, at kvicari@mhaofca.org.
The Honorable Richard D. Roth Senate Health Committee California State Senate 1021 O Street, Room 3310 Sacramento, CA 95814
Subject: Support for AB 1842 (Reyes) Medication-Assisted Treatment
Dear Chair Roth,
Mental Health America of California is pleased to support AB 1842 (Reyes) which would prohibit a medical service plan and a health insurer from subjecting a naloxone product or another opioid antagonist approved by the United States Food and Drug Administration, or a buprenorphine product or long-acting injectable naltrexone for detoxification or maintenance treatment of a substance use disorder, to prior authorization or step therapy.
MHAC is a peer-run organization leading the state in behavioral health public policy and advocacy since 1957. The mission of MHAC is to assist and encourage communities, families and individuals to experience hope, wellness and recovery from mental health and substance use disorder issues through voluntary services that are delivered in their local community with compassion and respect for everyone’s dignity and autonomy.
Prior authorization protocols and step therapy can prevent people from receiving timely access to those voluntary mental and behavioral health services. With the increase in substance use and the surge in fentanyl overdose deaths, access to naloxone and other opioid antagonists is crucial for saving lives and supporting recovery. Prior authorization and step therapy impose unnecessary barriers to these life-saving resources, which should be readily accessible to those in need.
For these reasons, we support AB 1842 (Reyes). If you have any questions or if MHAC can be of assistance on this or any other behavioral health bill, please feel free to contact me or our Public Policy Director, Karen Vicari, at kvicari@mhaofca.org.
California Department of Insurance Attn: Sarah Sullivan, Attorney III Health Equity and Access Office 300 Capitol Mall, Suite 1700 Sacramento, CA 95814
Re: Mental Health and Substance Use Disorder Coverage Requirements, Article 15.2 (commencing with section 2652.1) of Subchapter 3 of Chapter 5 of Title 10 of the California Code of Regulations, pursuant to the authority granted by Insurance Code sections 10144.4, 10144.5, 10144.51, 10144.52, 10144.53, and 10144.57
We appreciate the opportunity to comment on California Department of Insurance’s Notice of Proposed Action for the Department’s Mental Health and Substance Use Disorder Parity in Health Insurance Rulemaking (REG-2021-00008) dated May 24, 2024, to implement Senate Bill 855 (Wiener, Chapter 151, 2020) and Assembly Bill 988 (Bauer-Kahan, Chapter 747, 2022). We are grateful for the Department’s engagement with us on numerous issues related to the drafted regulations. The Department’s proposed Rule lessens the possibility that disability insurers will exploit ambiguities to inappropriately limit insureds’ access to mental health and substance use disorder (MHSUD) care We encourage this comprehensive Rulemaking to be finalized as soon as possible and offer support for the following key provisions, as currently drafted:
● Use of nonprofit professional association utilization review criteria and gap-filling criteria aligned with generally accepted standards of care (GASC). The exclusive use of nonprofit professional association criteria, unmodified, is essential to ensuring that insureds receive the appropriate intensity and duration of services to meet their specific needs in a manner consistent with generally accepted standards of care. The proposed Rule clearly states that it is the responsibility of disability insurers to use nonprofit professional association utilization review criteria in a manner established or approved by the association and to document how the plan is meeting these requirements.
We also support the Department’s development of gap-filling criteria for use when there are not established nonprofit professional association utilization review criteria for a MHSUD condition or service. All criteria, including gap-filling criteria, should be consistent with GASC to ensure that every MHSUD condition is measured against appropriate clinical standards. These standards are squarely in-line with the intent and letter of the law.
● Obligation of health insurers to arrange and pay for out-of-network care and insureds’ rights to arranging out-of-network coverage, including requirements that insurers must be required to enter into an agreement with out-of-network providers when geographic and timely access standards are not met. We support the Department’s specificity on obligations of insurers in arranging out-of-network care, including:
○ The insurer’s obligation to identify and secure out-of-network health care providers or facilities within time and distance standards; ○ The insured’s right to timely authorization of out-of-network services; ○ The insured’s right to in-network cost-sharing for out-of-network benefits when an insurer fails to secure in-network care; ○ Where appointments/admissions are not available within 90 calendar days, that an insured shall be allowed to schedule the appointment/admission beyond this timeframe; ○ The insurer’s explicit responsibility to cover the entire course of medically necessary treatment; ○ Transitioning an insured to an in-network provider or facility should involve “clear and convincing evidence” that such a transition is in the best interest of the patient, and not for the convenience or cost-savings of the insurer.
● Explicit coverage requirements for crisis services, including those accessed through 988, including mandates that emergency crisis services be covered:
○ without medical necessity reviews; ○ without prior authorization; ○ without regard to provider network status; and ○ that insureds are subject to only in-network cost sharing on these claims.
● Requirements that utilization reviewers have appropriate qualifications. We support the Department’s inclusion of qualifications and standards for utilization reviewers conducting reviews on MHSUD claims. Utilization reviewers should have proper training and experience in the field of behavioral health care that is under review. We further appreciate the Department’s specificity on qualifications for SUD reviews, a field in which the practice of unqualified utilization reviewers results in disproportionately high denials for SUD care. We encourage the Department to consider adding such specificity for other specialty areas with high rates of denials, such as eating disorder care, gender affirming care, and treatment for autism spectrum disorders.
● Ensuring continuity of care by requiring insurers to bear the burden of demonstrating by clear and convincing evidence that ongoing MHSUD services arranged out-of-network (due to network inadequacy) are interrupted only in accordance with generally accepted standards of care. The Department’s explicit requirements that an insurer reimburse for the entire course of treatment is aligned with the intent of the law and the clinical standards for MHSUDs.
● Formal education programs, including requiring insurers to sponsor a formal education program created by relevant nonprofit professional associations. Ensuring insurers are using relevant nonprofit professional association trainings, as available, ensures alignment and proper use of clinical review criteria in the manner in which the clinical association intended. Such trainings should include targeted outreach and be made available to both in and out-of-network providers and facilities, as well as members.
● Transparency in utilization review and training, by requiring insurers make education materials, trainings, and utilization review criteria available to network providers, group policyholders, insureds and their authorized representatives, and out-of-network providers.
● Definition of health care provider that is aligned with statute and inclusive of often-denied providers such as associates and trainees. Providers continue to report claim denials when associates appropriately provide medically necessary services under existing laws. Aligning the definition of health care provider with how it is defined in statute makes unambiguous that the use of associate providers is permitted under the statute.
While the above-mentioned components of Rulemaking offer strong protections for insureds seeking MHSUD care, we provide the following comments to further bolster insureds’ rights and lessen their burden in obtaining medically necessary MHSUD care. We hope the Department will consider the following comments for inclusion in its Final Rulemaking.
● Coverage requirements for frequently denied care. While we appreciate the proposed Rule’s clarity on the exclusive use of nonprofit professional association utilization review criteria, we encourage the Department to consider listing coverage requirements for frequently denied services and levels of care.
● Frequency and duration of treatment reviews. 28 CCR 1300.74.721(d) states that “a health plan shall not conduct repeated utilization review of a case at intervals more frequent than those prescribed or recommended by the relevant nonprofit professional association criteria or guidelines.” We encourage the Department to adopt similar language limiting the frequency and duration of treatment reviews, to align with the statute’s definition of medically necessary treatments that are “clinically appropriate in terms of type, frequency, extent, site, and duration.”
● Out-of-state provider coverage for out-of-network care. While we support the Department’s specificity on insureds’ rights to out-of-network coverage, we request further specificity that insureds’ rights to arranging out-of-network care are not limited to in-state providers once a plan has failed to arrange for in-network coverage. The state has limited facilities appropriate for certain populations. For example, there is a shortage of longer-term residential facilities as well as high quality programs that can address needs of specific populations; the state’s Department of Education has responded well to this issue by creating a list of out-of-state schools that can additionally serve special youth populations under IEP. Out of state status should not be a disqualifying issue for receiving medically necessary MHSUD care if appropriate care cannot be found in-state.
● Inclusion of nonprofit clinical criteria for eating disorder care. The REDC Level of Care Criteria are the most detailed, up to date, clinical level of care guidelines for eating disorder care. These criteria define eating disorder levels of care and criteria for admission for each level of care and were vetted across clinical and research evidence as well as across the eating disorders field to gain clinical consensus. We encourage the Department to list these criteria as part of its allowed nonprofit clinical criteria.
● Instituting reporting requirements to track compliance including yearly insurer reporting requirements on timely access and out-of-network referrals. Regular data collection efforts will allow the Department to proactively identify compliance issues without relying on trends in insured complaints to understand violations of these laws.
● Distributing department-produced educational materials on SB 855 and AB 988 to insureds including know-your-rights materials. We additionally encourage the Department to add a requirement that health plans provide insureds with copies of these Department-produced materials to better ensure insureds receive such information, as well as including them in the Evidence of Coverage manual.
● Requiring plans to incorporate the list of services into their evidences of coverage. While we appreciate the requirements in the proposed rules related to evidences of coverage, we believe more should be required of plans in order to ensure that enrollees get access to necessary information regarding covered services. CDI should require plans to include a list of all the services outlined in Section 2562.05 in their evidences of coverage and to explain that all of those services are covered when meeting the medical necessity criteria. In addition, plans should be required to add a statement emphasizing that the list is not exhaustive and that other MHSUD services not listed in the evidence of coverage are covered when medically necessary.
● Allowed health care providers. Health plans and insurers often disallow certain eligible providers from providing and billing services; associates, trainees, and autism providers, for example, are frequently not considered eligible providers, despite their clear inclusion in statute, resulting in continued denials for claims for medically necessary MHSUD care under current law. We support the Department’s definition of “health care provider” and believe it is clearly inclusive of these often-denied providers. To ensure adherence to the statute, we request that the Department include clarifying language that confirms listed providers cannot be denied reimbursement for MHSUD services rendered on the basis of their provider status (as associates, trainees, etc.).
● Issuing Notices/Bulletins/General Counsel opinion letters upon adoption of final Rules regarding particular areas of enforcement concern.
We encourage the consideration of our above-stated comments and the swift promulgation of comprehensive regulations. Once again, we thank you for considering our comments and considerations for finalization of the proposed Rules. As always, our organizations stand ready to assist you in any way we can.
If you have any questions, please contact Lauren Finke (lauren@thekennedyforum.org). For matters requiring physical or printed communication, please send to 1121 L Street, Sacramento, California 95814 suite #300.
Sincerely,
Adrienne Shilton California Alliance of Child and Family Services
Robb Layne California Association of Alcohol and Drug Program Executives, Inc
Joy Alafia California Association of Marriage and Family Therapists
Chad Costello California Association of Social Rehabilitation Agencies
Tyler Rinde California Psychological Association
Paul Yoder California State Association of Psychiatrists
Danny Thirakul California Youth Empowerment Network
Alison Ivie Eating Disorders Coalition REDC
Karen Fessel Mental Health & Autism Insurance Project
Heidi Strunk Mental Health America of California
Jessica Cruz, MPA/HS National Alliance on Mental Illness
Héctor Hernández-Delgado National Health Law Program
Benjamin Eichert NUHW
Randall Hagar Psychiatric Physicians Alliance of California
John Drebinger III Steinberg Institute
Lauren Finke The Kennedy Forum
CC: Ricardo Lara, Stesha Hodges, Department of Insurance Senator Scott Wiener Assemblymember Bauer-Kahan
The Honorable Ash Kalra Chair, Judiciary Committee California State Assembly 1020 N Street, Suite 104 Sacramento, CA 95814
RE: AB 2352 (IRWIN) as Amended March 21, 2024 – OPPOSE UNLESS AMENDED
Dear Chair Kalra:
Disability Rights California (DRC) is California’s federally mandated protection and advocacy agency, working to advance and protect the rights of Californians with disabilities. Mental Health America of California (MHAC) is a peer-run organization leading the state in behavioral health public policy and advocacy since 1957. MHAC works to encourage hope, wellness and recovery from mental health and substance use disorders through voluntary services, delivered locally with compassion and respect for everyone’s dignity and autonomy.
We reluctantly submit this letter in opposition to AB 2352 (Irwin). We support psychiatric advance directives (PADs) and proudly sponsored AB 1029 (Pellerin), Chapter 171, Statutes of 2023, to promote their use. We understand from the author’s office that AB 2352 is intended to further the work of a seven-county Innovation Project sponsored by the Mental Health Services Oversight and Accountability Commission. DRC has been working with the project team and along with MHAC we suggest the bill be substantially amended to focus exclusively on what we understand to be the bill’s intent: create a legal framework to facilitate the testing and use of a digital platform which, in turn, will hopefully further promote the use of PADs.
BACKGROUND ON ADVANCE HEALTH CARE DIRECTIVES AND PADS
Many people are familiar with an Advance Health Care Directive, (AHCD) a legal document executed by a person in anticipation of medical decisions that may need to be made when the person lacks capacity to make those decisions. One example is a person facing surgery who wants to be sure their loved ones and health care providers know their treatment preferences if something unexpected occurs. An AHCD often, but not always, includes designation of an agent with power of attorney to make decisions.
A PAD is a type of AHCD. It may be a standalone document, or it may be included as part of an overall AHCD. A PAD specifies a person’s preferences regarding mental health treatment in the event of a future mental health crisis. This may include information about medications known to be effective, an individual’s preferences for emergency care, and more. PADs are demonstrated to reduce the need for coercive interventions during mental health crises and increase participants’ feelings of autonomy, self-determination and empowerment.1
PADs can also improve mental health outcomes by facilitating conversations between mental health providers and an individual in mental health crisis. When psychological distress results in a mental health crisis, a person may be subjected to involuntary treatment, which can be traumatizing and demoralizing, and ultimately less effective than voluntary care, in part because treating providers lack knowledge about which services or treatments are likely to be most effective for an individual.
AB 2352 GOES FAR BEYOND CREATING THE NECESSARY FRAMEWORK FOR TESTING PADS
In numerous instances, AB 2352 goes far beyond what is needed to test a digital platform for PADs. In so doing, the bill pushes mental health policy away from the original intent of PADs.
AB 2352 increases the use of PADs in CARE Court. These sections should all be stricken from the bill.
We opposed CARE Court when it was enacted two years ago.2Among the reasons we sponsored AB 1029 last year was the surprise inclusion of PADs in CARE Court. Welfare and Institutions Code Section 5971 specifies the “graduation plan” in CARE Court may include a PAD. Because we believe CARE Court to be coercive, and because coercion has no place in a PAD, AB 1029 made sure PADs would fall under the Health Care Decisions law, which governs AHCDs. AB 2352 authorizes a CARE plan to include a PAD. The CARE plan is created early in a respondent’s CARE Court journey. Whether or not “graduation” is coercive, surely a CARE plan imposed on a respondent meets that definition. In addition, if a PAD is part of a CARE plan, how is the respondent’s right to privacy protected? Further, the bill contemplates the use of a health care advocate for PADs but with respect to CARE Court, appears to require (but at a minimum permits) that same health care advocate to also serve as the individual’s CARE supporter. This expansion of the health care advocate’s duties into CARE Court dramatically changes the duties of the advocate and risks changing the advocate’s role from neutral to coercive.
AB 2352 attempts to update California law post Proposition 1 by replacing “mental health” with “behavioral health” in numerous instances. These changes have unintended consequences. They should be removed from AB 2352 and considered in a separate bill that carefully and thoughtfully updates the law.
Proposition 1, passed by voters on March 5, 2024, renames the Mental Health Services Act (MHSA) as the Behavioral Health Services Act (BHSA). Prop 1 also renames the Mental Health Services Oversight and Accountability Commission (MHSOAC) as the Behavioral Health Services Oversight and Accountability Commission (BHSOAC). Beyond these changes, there is no wholesale substitution of “behavioral health” for “mental health” in the many sections of law amended by Proposition 1 containing the term “mental health.”
“Behavioral Health” is a broad term with many different definitions, but it generally refers to substance use disorders and mental health disorders of any severity. Some state laws and programs apply to mental health, some apply to mental health with co-occurring substance use disorders, and some apply to standalone “mild to moderate” substance use disorder or “severe” substance use disorder. The term “behavioral health” is not interchangeable with the term “mental health.” By replacing “mental health” with “behavioral health,” throughout statute, even beyond those code sections amended by Proposition 1, AB 2352 makes expansive changes to current law. At best these are unintended consequences, but they are problematic all the same. Below are some examples.
• AB 2352 substantially expands Assisted Outpatient Treatment
By changing “mental health” to “behavioral health” in the state’s Assisted Outpatient Treatment (AOT) law, the bill applies AOT to any person “suffering from a behavioral health illness.” AOT does not currently apply to people with a standalone SUD; any SUD must be co-occurring with mental illness. By applying AOT to standalone SUD, this proposed change opens the door to involuntary treatment for large numbers of Californians not currently eligible for AOT. Furthermore, this same section of the bill refers to Health & Safety Code Section 5600.3(b)(2) and (3) for the definition of “behavioral health illness,” but “behavioral health illness” is not defined in those paragraphs. This raises serious concerns, because if “behavioral health illness” is later defined within the Health &Safety Code, this definition would likely impact a vast number of other code sections in untold ways. Changes to current law this significant deserve careful consideration and public debate; they should not be dropped into a piece of legislation that may not receive a lot of scrutiny because it is viewed as simple code cleanup.
Along those lines, in this same section, we have concerns that by replacing “mental health professional” with “behavioral health professional”, we inadvertently allow licensed SUD counselors to refer individuals for AOT or determine whether an individual has capacity to consent to psychotropic medication. This should not be permitted.
•AB 2352 expands the LPS “gravely disabled” definition beyond what was enacted last year in SB 43.
The Legislature enacted SB 43 (Eggman), Chapter 637, Statutes of 2023 to, among other things, expand the definition of “gravely disabled” under the Lanterman Petris Short Act (LPS) to include individuals with “severe” SUD. Prior to SB 43, a person with SUD would be considered gravely disabled only in the presence of a co-occurring mental health disorder. The changes proposed by AB 2352, in replacing “mental health” with “behavioral health,” have the effect of expanding SB 43’s expansion to cover ANY substance use disorder, not just a SEVERE substance use disorder.
To add to the confusion of replacing “mental health” with “behavioral health,” section 36 (CARE Court) defines a licensed behavioral health professional as a licensed mental health professional. This makes no sense, and we see no purpose in changing the term “licensed mental health professional” anywhere in code.
Incorrect and confusing definitions and cross-references should be fixed or deleted.
There are many instances in the bill where the use of specific terms would add confusion to the law. This occurs most notably with the creation of a “health care advocate” for PADs. For example, the bill’s two definitions of “PAD” include a “health care advocate,” which appears to be optional in one instance and required in the other. In Section 10 of the bill, amendments to Probate Code Section 4674 require a signature by an ASSIGNED advocate and in Section 6 of the bill, amendments to Probate Code Section 4672 permit the NOMINATION of an advocate.
There are definitions for PAD and “health care advocate” in Section 42 of the bill with proposed amendments to Welfare and Institutions Code Section 21001. Other sections in the bill cross-reference Section 21001, which was added by AB 1663 (Maienschein), Chapter 894, Statutes of 2022. DRC sponsored AB 1663, which reformed probate conservatorships and provided a framework for supported decision making. The changes in AB 2352 are out of step with the statutory structure for supported decision making and appear to be unnecessary and confusing.
The bill establishes different witness requirements for a PAD and an AHCD. There is no identified reason for different requirements. Based on longstanding law, the requirements should remain the same.
Section 9 of the bill amends Probate Code Section 4673 related to legal sufficiency of AHCDs. Under existing law, AHCDs and PADs (which are a type of AHCD) would have the same witness signature requirements, i.e. two witnesses or a notary public. The bill eliminates the ability to use a notary for a PAD and requires only one witness. This makes no sense. There is no reason for a PAD, whether it is standalone or part of a larger AHCD, to have different witness requirements.
AB 2352 SHOULD FOCUS ON WHAT IS NEEDED FOR DIGITAL PADS TO BE TESTED UNDER THE INNOVATION PROJECT. CONFUSING, UNECCESARY AND EXPANSIVE CHANGES TO LAW SHOULD BE ELIMINATED
A PAD is a type of Advance Health Care Directive. It MAY be a standalone document, but this is not required. The bill blurs that point by including specific requirements, duplications and exemptions for PADS as compared to all AHCDs, which makes it seem all PADs will be standalone. This is a mistake. Existing AHCDs with or without an inclusive PAD, and existing standalone PADs, should not need updating because of this bill. For an example of an inclusive AHCD, the Veterans Administration offers a template that includes mental health in an advance directive.
At its heart, the bill seeks to create a framework for digital PADs. That is what the MHSOAC seven-county innovation project is all about. We support that intent but want to be sure everyone understands what a digital PAD is and how it is created, stored and accessed. This bill does not do that. The sponsor is using a proprietary platform in the innovation project. Will that become the standard? With MHSA Innovation funding eliminated by Proposition 1, how will counties sustain the digital platform long term? Will hospitals have to purchase the platform? Will there be competitors? Over the last ten years we have seen the challenges in implementing Electronic Medical Records under the Affordable Care Act. It is about more than digital signatures – it is the content in the platform. The bill needs to do a better job there so that a PAD can be easy to complete and may be accessed by specific entities, i.e. law enforcement and hospitals, when appropriate. Access does not mean all parts of a PAD are accessible to all who need parts of it. It is important to ensure law enforcement and health care providers each have access to only those portions of the PAD relevant for their jobs.
For these reasons, DRC and MHAC respectfully oppose this bill unless it is amended to address our concerns. Please contact us if you have any questions about our position or if I can provide any further information.
Sincerely,
Deb Roth Senior Legislative Advocate Disability Rights California
Karen Vicari Director of Public Policy Mental Health American of California
cc: Honorable Members, Assembly Judiciary Committee The Honorable Jacqui Irwin, California State Assembly The Honorable Gail Pellerin, California State Assembly Alison Merrilees, Assembly Judiciary Committee Charmaine Mills, Office of Assemblymember Pellerin
The Honorable Mia Bonta Assembly Health Committee 1020 N Street, Room 390 Sacramento, CA 95814
Subject: Support for SB 1397 (Eggman) Behavioral Health Services Coverage
Dear Chair Bonta,
Mental Health America of California is pleased to support SB 1397 (Eggman), legislation which would allow county behavioral health agencies to be reimbursed for full-service partnership services through health plans and insurers that cover medically necessary mental health and substance use disorder treatment.
MHAC is a peer-run organization leading the state in behavioral health public policy and advocacy since 1957. The mission of MHAC is to assist and encourage communities, families and individuals to experience hope, wellness and recovery from mental health and substance use disorder issues through voluntary services that are delivered in their local community with compassion and respect for everyone’s dignity and autonomy.
To improve access to care in local communities, this bill allows counties to be reimbursed for services provided and covered through an individual’s health insurance. By reducing costs to counties and ensuring maximum coverage and access to care, this bill seeks to address some of the funding limitations imposed by Proposition 1. It supplements a portion of the lost revenue by requiring health plans to reimburse counties for medically necessary mental health and substance use disorder treatments.
For these reasons, we support SB 1397 (Eggman). If you have any questions or if MHAC can be of assistance on this or any other behavioral health bill, please feel free to contact me or our Public Policy Director, Karen Vicari, at kvicari@mhaofca.org.
