Position Category: MHAC

July 26, 2023

To:
Assembly Speaker’s Office
Senate Pro Tem’s Office
Assembly Health Committee
Senate Health Committee
Governor Newsom’s Office

Re: Threat to Consumer Mental Health and Substance Use Disorder Coverage Laws Under SB 855 (Chapter 151, 2020)

Dear Members of the Legislature:
Our organizations, which are committed to ensuring that Californians are able to access medically necessary mental health and substance use disorder (MH/SUD) treatment, write to you to express concerns about an attempt to weaken Senator Wiener’s landmark bill, SB 855 (Chapter 151, 2020), which enacted nation-leading MH/SUD coverage protections. We would oppose amendments to SB 855 to allow use of criteria developed by for-profit entities, which is why we were concerned to learn the MCG, one of the primary licensors of for-profit proprietary criteria, has been seeking amendments to do just that.

Under SB 855, Californians in fully-insured, state-regulated health plans have the most comprehensive consumer protections governing coverage of MH/SUD care in the country.

This critical law requires that health plans cover all medically necessary MH/SUD treatment and requires health plans to make medical necessity determinations in accordance with generally accepted standards of care (GASC) for MH/SUD. Prior to SB 855, there was no requirement under California law that health plans make these determinations consistent with GASC.

SB 855 also requires health plans to exclusively use nonprofit clinical specialty association criteria for medical necessity determinations to ensure (1) compliance with GASC and (2) that decisions are not tainted by financial conflicts of interests. Again, prior to SB 855, plans could essentially use whatever criteria they wished, including non-transparent proprietary criteria that put plans’ financial interests ahead of patients’. Such criteria stand in stark contrast to criteria established by nonprofit clinical specialty associations, which are developed through a transparent, consensus-based process. Renowned clinical specialty associations such as the American Psychiatric Association, the American Psychological Association, the American Society of Addiction Medicine (ASAM), the American Academy of Child and Adolescent Psychiatry (AACAP), and the American Association of Community Psychiatry (AACP) go through rigorous processes to ensure that the guidelines and criteria they create reflect GASC and are broadly accepted by MH/SUD clinicians, ensuring that patients’ medical needs come
first.

SB 855’s nonprofit medical necessity criteria requirements are critical because such criteria are:

• Fully transparent and accessible. Consumers, providers, and other stakeholders can readily access the criteria being used to determine whether specific MH/SUD services are, in fact, appropriate to meet individual patient needs.
• Developed through a consensus process that protects against conflicts of interest. The authors and reviewers of nonprofit criteria are publicly identified. Credentials, expertise, and potential conflicts of interests can be evaluated by the public.
• Externally validated. Nonprofit clinical criteria are subject to rigorous peer review, validation studies in real-world clinical settings, and are reviewed in professional and scholarly journals.

In fact, as early as 1997, research published in the American Journal of Psychiatry, the official, peer-reviewed journal of the American Psychiatric Association, sounded warning bells, concluding that: “Our findings underscore the necessity of determining the validity of all criteria used to assess the appropriateness of medical care. Wide acceptance of an instrument is clearly not sufficient to justify its use . . . The need for validation studies is particularly great whenproprietary criteria are not available for public scrutiny.”¹

We note that in 2021, the nation’s largest insurer, United Healthcare (UHC) claimed to have voluntarily switched to nonprofit clinical association criteria by ASAM, AACP, and AACAP throughout the United States for all its level of care determinations. Under its brand name “Optum,” UHC explained why it switched to nonprofit clinical criteria for mental health and substance use disorders:²

• The criteria were “[e]xternally validated”
• The criteria used a “Common Language [That] Drives Improved Care”
• “The six dimensions [of the guidelines] provide a more holistic view of acuity and chronicity of behavioral health condition, thereby promoting more appropriate care for patients and a better overall experience.” (emphasis added)

UHC further noted that the nonprofit clinical specialty association criteria were better than proprietary criteria such as those created by for-profit publishers like MCG (formerly “Millman”) and InterQual, because these nonprofit clinical criteria “adopted a systems of care approach” that was “tailored to the specific age of the member” and better incorporated “the use of wrap-around services.”³ We agree.

Use of the nonprofit clinical specialty association criteria sets a clear, unambiguous standard that protects patients. For example, if a level of care assessment using “The ASAM Criteria” indicates that an individual needing substance use disorder treatment is most appropriately treated in a Clinically Managed Residential Withdrawal Management (ASAM Level 3.2-WM) facility, under California law, the insurer must cover this level of treatment. Or if a young person with early psychosis symptoms needs Coordinated Specialty Care, as is clearly recommended by the American Psychiatric Association’s “Practice Guideline for the Treatment of Patients With Schizophrenia,” the health plan must cover these life-saving services.

The centrality of SB 855’s non-profit clinical criteria requirements is why we were alarmed to learn that MCG is pushing for amendments to SB 855’s clinical criteria provisions. MCG seeks to amend SB 855 so that its proprietary criteria, which it sells to providers on a subscription basis, will also be considered acceptable in California for making medical necessity determinations. Though skeptical, our organizations agreed to meet with MCG. However, in order to allow us to fully review and evaluate its MH/SUD criteria after this initial meeting, MCG insisted that our organizations execute Non-Disclosure Agreements. We refused, because such a constraint and lack of transparency only play into the numerous problems inherent in secret, for-profit clinical criteria that broadly impact public health.

That other states are following California’s lead demonstrates the importance of having one set of allowed clinical criteria – the criteria that are developed by the leading nonprofit clinical specialty associations. After SB 855’s enactment, Illinois and Oregon enacted nearly identical language requiring the use of nonprofit clinical association criteria for MH/SUD medical necessity determinations. And, in reviewing health plans’ mental health level of care criteria, the New York State Office of Mental Health rejected all 69 plans’ guidelines as flawed and inconsistent with GASC. Critically, New York State automatically deemed mental health criteria from AACP and AACAP as automatically compliant. Numerous other states have also mandated nonprofit criteria such as The ASAM Criteria.⁴

Lastly, it is important to note that SB 855 purposely addresses gaps in situations that are not expressly addressed by existing nonprofit clinical association criteria. The use of for-profit clinical criteria is permitted if they (1) are outside the scope of the relevant nonprofit professional criteria or (2) relate to advancements in technology or types of care not covered by the nonprofit criteria. However, efforts to open the door to for-profit criteria within the scope of nonprofit criteria invites profound confusion and will undermine the creation of a common language necessary to improve access to quality care.

Therefore, we request that you oppose any effort to change SB 855’s provisions relating to medical necessity criteria. Amending SB 855 will hinder the state’s response to the ongoing mental health and addiction crisis and invite new arbitrary denials that California has come so far in trying to prevent. It’s not only patients that have a lot to lose, but taxpayers who must pay for the cost when insurers inappropriately deny needed treatment – exactly the point that the California Department of Justice took in a recent federal amicus brief.⁵

Thank you for your efforts to improve access to life-saving care. We hope that you’ll oppose efforts to weaken California’s nation-leading laws.

Sincerely,
Lauren Finke
The Kennedy Forum

Jared L. Skillings, PhD, ABPP
American Psychological Association

Adrienne Shilton
California Alliance of Child and Family Services

Robb Layne
California Association of Alcohol and Drug Program Executives

Chad Costello
California Association of Social Rehabilitation Agencies

Paul Yoder
California State Association of Psychiatrists

Danny Thirakul
California Youth Empowerment Network

Katelin Van Deynze
Health Access California

Heidi Strunk
Mental Health America of California

Karen Fessel
Mental Health & Autism Insurance Project

Danny Offer
National Alliance on Mental Illness California

Fred Seavey
National Union of Healthcare Workers (NUHW)

Joy Burkhard
Policy Center for Maternal Mental Health

Randall Hagar
Psychiatric Physicians Alliance of California

Tara Gamboa-Eastman
Steinberg Institute

• ¹ Goldman RL, Weir CR, Turner CW, Smith CB. Validity of utilization management criteria for psychiatry. Am J Psychiatry. 1997 Mar;154(3):349-54. doi: 10.1176/ajp.154.3.349. PMID: 9054782.
• ² The mental health criteria UHC voluntarily switched to were the Level of Care Utilization System (LOCUS), which is developed by AACP, for adults; the Child and Adolescent Level of Care/Service Intensity Utilization System (CALOCUS-CASII), which is developed jointly by AACP and AACAP, for children and adolescents ages 6-18; and the Early Childhood Service Intensity Instrument (ECSII), which is developed by AACAP, for children ages 0-5. UHC also voluntarily switched to using The ASAM Criteria, but the notice to providers (see note 2) was specifically related to the mental health nonprofit criteria.
• ³ Optum. “Optum Clinical Criteria for Behavioral Health Conditions Change to LOCUS, CASII, ECSII: Frequently Asked Questions.” (2021). https://public.providerexpress.com/content/dam/opeprovexpr/us/pdfs/clinResourcesMain/guidelines/optumLOCG/locg/LCE-FAQs.pdf.
• ⁴ Legal Action Center and Partnership to End Addiction. “Spotlight on Medical Necessity Criteria for Substance Use Disorders.” November 2020. Note, this report predated enactment of SB 855 or the laws in Illinois or Oregon.
  
• ⁵ See https://oag.ca.gov/news/press-releases/attorney-general-bonta-files-brief-support-access mental-healthcareservices.

July 26, 2023

The Honorable Susan Eggman
California State Senate
1021 O St., Suite 8530
Sacramento, CA 95814

RE: SB 326 (Eggman): CONCERNS

Dear Senator Eggman: Mental Health America of California appreciates the Administration’s goal of improving care for Californians living with behavioral health challenges. However, we have serious concerns that Behavioral Health Modernization, currently moving through the Legislature as SB 326 (Eggman), will not achieve the Administration’s goals, and is likely to exacerbate California’s mental health crisis. This letter is intended to supplement the proposed amendments we submitted to Assembly Health Committee on July 13, 2023.

Mental Health America of California (MHAC), an affiliate of Mental Health America, has five affiliate organizations and one associate organization in California. We are 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 ensure that people of all ages, sexual orientation, gender identity or expression, language, race, ethnicity, national origin, immigration status, spirituality, religion, age or socioeconomic status who require mental health services and supports are able to live full and productive lives, receive the mental health services and other services that they need, and are not denied any other benefits, services, rights, or opportunities based on their need for mental health services. Along these lines, we support efforts which increase access to voluntary, culturally responsive, community-based behavioral health services.

Senate Bill 326 and the resulting ballot initiative, if passed, will result in significant changes to California’s public behavioral health care system. An initiative of this magnitude should not be developed behind closed doors or rushed through the legislative process. Simple math can inform us that if (a) thirty percent of Mental Health Services Act (MHSA) funds are diverted to provide and support additional beds; (b) three percent of MHSA funds are diverted for a statewide workforce initiative; and (c) an unknown percentage of funds are diverted to provide substance use disorder (SUD) services for people without a mental health diagnosis, county mental health services will be reduced.

Our specific concerns are detailed below.

I. An initiative of this magnitude should not be rushed through the legislative process without significant stakeholder involvement and detailed analyses.

The Mental Health Services Act was drafted over several years, and included meaningful and substantial input from a broad variety of stakeholders, to ensure that the Act would meet the needs of Californians with mental health challenges who receive services in the public mental health care system. In contrast, SB 326 was drafted behind closed doors without input from the multitude of primary stakeholders who will be impacted, including peers, counties and providers. Furthermore, other than the recent report by the Legislative Analyst Office, there has been no analysis conducted by the Administration to examine the impacts of Behavioral Health Modernization on existing services.

SB 326, as currently written, would rename the MHSA to the Behavioral Health Services Act (BHSA) and divert 3% of county BHSA funds off the top for a statewide workforce initiative that is vaguely described in the bill. Additional funds would be diverted from local services for standalone SUD treatment and for residential beds. This will undoubtedly impact local mental health services, but without detailed analysis and conversations with the multitude of local mental health stakeholders, it is impossible to know how many people will lose access to vital services, and which services will be reduced.

II. Changes to the MHSA should be designed after the current statewide mental health reforms have taken effect.

The MHSA was drafted and approved by voters to close gaps in California’s public mental health system, and to provide funding for services that are not covered by existing funding streams. Yet California is currently undergoing drastic changes to its public mental health system, including California Advancing and Innovating Medi-Cal (CalAIM), the Children and Youth Behavioral Health Initiative (CYBHI), the Behavioral Health Community-Based Organized Networks of Equitable Care and Treatment (BH-CONNECT), Medi-Cal Mobile Crisis and 988 expansion, and the Behavioral Health Continuum Infrastructure Program (BHCIP). With the exception of CYBHI, and certain aspects of CalAIM, the changes underway are intended to increase services for individuals with high needs.

With so many significant changes underway, it is virtually impossible to foretell where the gaps and needs of the system will be once all of these new programs are implemented. However, given the state’s focus on the unhoused and those with high needs within SB 326, it is reasonable to assume that there will be gaps in upstream care. It is negligent and irresponsible for the state to move ahead with changes to the MHSA without allowing time for the current programs and initiatives to take effect, and for service needs in the public mental health care system to be exposed. Due to its role to fill unfunded system needs, the MHSA should not be reformed until California understands where the needs will be after system reforms are fully enacted.

III. California’s high number of unhoused people is the direct result of a severe lack of affordable housing. We must address this issue prior to amending the MHSA.

Since 2018, California has poured at least 20 billion dollars into efforts to address homelessness¹ , yet the number of people without homes has continued to climb. For example, between 2019 and 2022, the overall point in time count of people without homes in Sacramento rose 67%.²

The focus of the state’s mostly one-time funding homelessness funding has been on temporary shelter/housing, with the development of very little permanent housing. Temporary housing, including shelters, does not result in long-term reductions in homelessness. As soon as the one-time funding is exhausted, individuals are once again on the streets.

According to the California Legislative Analyst Office³ , the following is the result, in terms of permanent housing, of some of the state’s homelessness funding:

• Project Homekey: $798 Million spent with 6,467 Permanent units
• Encampment Resolution Funding: $50 million spent with 53 people placed directly into permanent housing, and 365 exiting encampments directly into emergency shelters or transitional housing
• No Place Like Home: $1.9 billion. Since 2018, 498 units have been completed

A recent groundbreaking study by Dr. Margot Kushel at the University of California San Francisco found that the majority of unhoused people in California become unhoused simply because they cannot afford housing. Seventy percent of people surveyed for the study indicated that a monthly rental subsidy of $300-$500 would have prevented their homelessness.⁴ Although a high percentage of unhoused people reported symptoms of mental health challenges, these challenges were not the cause of individuals becoming unhoused. In fact, the trauma of becoming unhoused and the traumas associated with being unhoused can cause new mental health challenges or worsen existing mental health challenges.

A review of data from the Housing and Community Development dashboard reveals that statewide Regional Housing Needs Projections (RHNA) estimate that, in order to meet local housing needs, 40% of housing must be for people with low and very low incomes. Yet between 2013 and 2024, 76% of the housing permitted by local Continuums of Care (CoC) was for people above moderate incomes, with only 12% of permits for people with low and very low incomes.⁵ The most recent census data reveals that between 2017 and 2021, the median household income in California was $84,097.6 Thus, the vast majority of housing being built in California is only affordable to households who make more than $84,000 per year.

Homelessness in California is an affordable housing issue. Recently, the Legislature approved a large-scale audit of California’s homelessness spending, with the goal of learning why the state’s $20 billion investment towards housing and homelessness has not reduced the number of people without homes. We believe it is imperative that the Legislature wait for the results of this audit before approving a broad diversion of mental health funds for beds and other housing in California.

IV. Behavioral Health Modernization, if passed by voters, will result in decreased community mental health services.

SB 326 would reduce community mental health services in several ways. First, the proposal would allow the state to take 3% of county BHSA funds off the top to fund an ill-defined statewide workforce program. While we recognize the severity of California’s workforce shortages, we believe that sources other than MHSA should fund these programs. The MHSA was written to provide funding to counties for local mental health services, and already allows five percent of funds for statewide activities. Furthermore, the department of Health Care Access and Information is currently charged with the state’s primary workforce initiatives. We question whether it is wise to provide funding for a separate state agency to begin parallel efforts.

The MHSA currently allows counties to provide housing and housing services to FSP clients, and we support this use of MHSA funds. However, SB 326 would require counties to shift 30% of their BHSA funds away from mental health services to housing, beds, and housing services. While we strongly support efforts to ensure that every Californian has a safe and stable home, additional funding for this should not come at the expense of community mental health services. As noted previously in this document, homelessness in California is an affordable housing issue, not a mental health issue.

In addition to diversion of mental health funds, the bill would also add a new population to be served by BHSA funds— people with substance use treatment needs who do not have mental health challenges. This, too, will reduce the community mental health services currently provided by counties. Again, we believe that people with substance use treatment needs should receive the care that they need, but this funding should not reduce community mental health services.

Under the new BHSA funding formula, the services that will be most impacted are those that fall within the third bucket (Behavioral Health Services and Supports), which would require counties to spend 15% of BHSA funds on early intervention activities and 15% of BHSA funds on non-FSP Community Services and Supports (CSS), Workforce, Education and Training (WET), Innovations (INN), Capital Facilities and Technological Needs (CFTN) and Prudent Reserve (PR). According to the recent analysis by the Legislative Analyst Office, these categories including Prevention and Early Intervention currently comprise around 60% of MHSA dollars. We can assume then that these categories without Prevention and Early Intervention would currently comprise 41% of MHSA dollars. If we compare this with SB 326 as currently drafted, funding for these vital services would be reduced by 26%. Programs and services currently funded under this category include mental health outpatient services, outreach and engagement services, workforce efforts, crisis and urgent care services, and homeless outreach, among many others. These are vital services that should not be reduced.

V. SB 326 removes existing MHSA priorities for children and youth.

Currently, the MHSA categories of prevention and early intervention, full-service partnerships, and community services and supports prioritize children and youth. Current PEI regulation (9 CCR § 3706) requires counties use at least 51% of PEI funding for children, youth and transition age youth ages 25 and younger. Similarly, regulations for CSS (9 CCR § 3610) also require counties to provide FSP and non-FSP services to children and youth. Yet, there is no language within SB 326 requiring that services be provided to children and youth. Given the Administration’s stated priority of focusing BHSA dollars on adults without homes, we are concerned that the proposal authorizes counties to significantly reduce, or possibly eliminate, spending on children and youth.

Furthermore, the proposal would require that children and youth who receive BHSA services must have a serious emotional disturbance diagnosis. This is contrary to recent state efforts including the former Surgeon General’s Adverse Childhood Experiences (ACEs) report and statewide efforts in CalAIM. California has long recognized that childhood trauma results in increased risk for a behavioral health disorder, and that interventions provided before the emergence of symptoms can dramatically improve outcomes. In 2021, the Department of Health Care Services (DHCS) released Behavioral Health Information Notice (BHIN) 21-073 which includes criteria for beneficiaries under age 21 to access specialty mental health services. Under these criteria, people under age 21 need only be at high risk for a mental health challenge to access services. We recommend that SB 326 incorporate the SMHS access criteria to ensure that all children and youth in need of services can access those services.

VI. State level governance and oversight of the BHSA would continue to be diffuse and likely ineffective.

When Proposition 63 was presented to voters in 2004, the informational flyer stated that the measure “Requires strict accountability for funds. An oversight panel of independent, unpaid members supervises expenditures. They can cut off funding for programs that are not effective.” This strict accountability has never materialized. Furthermore, oversight of the MHSA has declined since 2004, with AB 100 (2011)⁷ eliminating the duty of the Department of Mental Health to approve county three-year plans, and eliminating the duty of the Mental Health Services Oversight and Accountability Commission (MHSOAC) to approve Prevention programs and to review and comment on county three-year plans. These duties were never re-assigned to DHCS. It is important to note that, in removing this oversight of the MHSA, AB 100 stated in Section 1(b):

Further, it is the intent of the Legislature to ensure continued state oversight and accountability of the Mental Health Services Act. In eliminating state approval of county mental health programs, the Legislature expects the state, in consultation with the Mental Health Services Oversight and Accountability Commission, to establish a more effective means of ensuring that county performance complies with the Mental Health Services Act.

The state has never established a means to effectively oversee the MHSA. Oversight of the MHSA was further eroded in 2012 with the dissolution of the Department of Mental Health.

State level governance and oversight of the BHSA would remain diffuse and limited under SB 326. The bill would eliminate all oversight responsibilities from the MHSOAC/BHSOAC, and only slightly increases the oversight responsibilities of DHCS. It remains unclear within SB 326 who would be responsible for state leadership and oversight. There continue to be multiple entities with partial leadership responsibilities, including the Health and Human Services Agency (HHS), DHCS, MHSOAC/BHSOAC, and the California Behavioral Health Planning Council (CBHPC). However, clear and distinct responsibilities for these agencies have not been delineated.

Strong oversight and accountability of the BHSA will be necessary to the long-term success of the measure. We recommend that the Legislature make a concerted effort to clearly define oversight of the measure including clear designation of entity roles and responsibilities.

We appreciate the opportunity to provide these comments on SB 326 (Eggman), and the Administration’s Behavioral Health Modernization proposal. Our recommendations are intended to ensure that people with mental health challenges can access the services and supports that will be most effective for each individual.

If you have any questions or would like more information, please do not hesitate to contact me (hstrunk@mhac.org) or our Interim Director of Public Policy, Karen Vicari (kvicari@mhaofca.org).

In Community,

Heidi L. Strunk President & CEO

cc: Assembly Health Committee

• ¹ https://lao.ca.gov/handouts/socservices/2023/2023-24-Budget-Housing-Homelessness-Proposed-Budget-Changes-032923.pdf
• ² https://www.saccounty.gov/news/latest-news/Pages/2022-Point-in-Time-Count-ReportReleased.aspx#:~:text=Point%20in%20Time%20Count%20by,over%20the%20last%20three%20years
• ³ https://lao.ca.gov/handouts/socservices/2023/2023-24-Budget-Housing-Homelessness-Proposed-Budget-Changes-032923.pdf
• ⁴ https://homelessness.ucsf.edu/our-impact/our-studies/california-statewide-study-people-experiencing-homelessness
• ⁵ https://www.mhac.org/wp-content/uploads/2023/06/Data-Shows-Serious-Mental-Illness-is-not-the-cause-of-UnhousedPopulation-Increase-in-California.pdf
• ⁶ https://www.census.gov/quickfacts/fact/table/CA/BZA210221
• ⁷ https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201120120AB100

July 12, 2023

Submitted via Web Portal and E-mail

Assembly Member Jim Wood, Chair Assembly Health Committee 1020 N Street, Room 390 Sacramento, CA 95814

E: SB 326 (Eggman) Proposed Amendments

Dear Assembly Member Wood:

Mental Health America of California requests amendments (detailed below) to SB 326 (Eggman), the Behavioral Health Services Act (BHSA). Mental Health America of California (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 ensure that people of all ages, sexual orientation, gender identity or expression, language, race, ethnicity, national origin, immigration status, spirituality, religion, age or socioeconomic status who require mental health services and supports are able to live full and productive lives, receive the mental health services and other services that they need, and are not denied any other benefits, services, rights, or opportunities based on their need for mental health services. Along these lines, we support efforts which increase voluntary, culturally responsive, community-based behavioral health services. 

We have included in our email submission a separate red-lined markup of the relevant sections of the Word Document for Amendments including our requested amendments. Justification for the requested amendments is as follows:

I. Page 4, Amend Section 99277 of the Education Code to include individuals with lived experience of mental health challenges and individuals with lived experience of homelessness to the Advisory Board/Oversight Body.

99277. (a) Upon receiving funding for purposes of this chapter, UCSF, the UC college named in Section 92200, and the UC/CSU California Collaborative on Neurodiversity and Learning shall each appoint one member from the respective institutions. This group shall be charged with the development and oversight of the initiative and shall function as the institute’s management committee. The management committee shall be permitted, but not obligated, to retain a program director to assist in the implementation of the initiative.

(b) (1) An advisory board, with its title and members to be named by the institute, shall be established to serve as an oversight body for the initiative in order to monitor progress and provide leadership from the perspectives of their respective participating organizations, departments, and divisions and to facilitate collaboration among researchers, practitioners, administrators, legislators, and community stakeholders.

(2) The advisory board shall provide expertise and support to the management committee.

(3) The advisory board shall be a check on accountability to ensure that the initiative is meeting its goals. Page 2 of 5

(4) The advisory board shall conduct a fiscal review of the distribution of funds to ensure alignment with the goals of the initiative.

(5) The membership of the advisory board shall be constituted as set forth in subdivision (c).

(c) The members of the advisory board shall be representatives from the following institutions, organizations, agencies, and groups:

(1) UCSF.

(2) UC college named in Section 92200.

(3) The UC/CSU California Collaborative for Learning and Neurodiversity.

(4) The Behavioral Health Services Oversight and Accountability Commission.

(5) A Member of the Assembly selected by the Speaker of the Assembly.

(6) A Senator selected by the President pro Tempore of the Senate.

(7) Community representatives, including individuals with lived experience of a mental health challenge, formerly unhoused individuals, formerly justice-involved persons and their family members, selected by the Governor, the Speaker of the Assembly, and the President pro Tempore of the Senate.

Justification: As currently drafted, the Advisory Board would include “Community representatives, including formerly justice-involved persons…”. While justice-involved individuals are certainly one of many focus populations of the legislation, the main focus of the legislation is people with mental health challenges and people without homes. For this reason, it is imperative that those two populations are represented on the advisory board. People who have received services possess unique knowledge and expertise vital to the success of the initiative.

II. Page 27. Amend Welfare & Institutions Code Section 5806 to clarify that provision should be made for full participation of the family only when requested by the individual.

SEC. 27. Section 5806 is added to the Welfare and Institutions Code, to read:

5806. (a) The State Department of Health Care Services shall establish service standards so that adults and older adults in the target population are identified and receive needed and appropriate services from qualified staff in the least restrictive environment to assist them to live independently, work, and thrive in their communities. The department shall provide annual oversight of counties for compliance with these requirements that shall include, but are not limited to, all of the following:

1) Determination of the numbers of clients to be served and the programs and services that will be provided to meet their needs.

(2) The local director of behavioral health shall consult with the sheriff, the police chief, the probation officer, chief of emergency medical services, the behavioral health board, Medi-Cal managed care plans, Page 3 of 5 as defined in subdivision (j) of Section 14184.101, child welfare departments, contract providers and agencies, and family, client, ethnic, and citizen constituency groups, as determined by the director.

(3) (A) Outreach to adults with a serious mental illness or a substance use disorder to provide coordination and access to behavioral health services, medications, housing interventions pursuant to Section 5830, supportive services, as defined in subdivision (g) of Section 5887, and veterans’ services.

(B) Service planning shall include evaluation strategies that consider cultural, linguistic, gender, age, and special needs of the target populations.

(C) Provision shall be made for a workforce with the cultural background and linguistic skills necessary to remove barriers to mental health services and substance use disorder treatment services due to limitedEnglish-speaking ability and cultural differences.

(D) Recipients of outreach services may include families, the public, primary care physicians, hospitals, including emergency departments, behavioral health urgent care, and others who are likely to come into contact with individuals who may be suffering from either an untreated serious mental illness or substance use disorder, or both, who would likely become homeless or incarcerated if the illness continued to be untreated for a substantial period of time.

(E) Outreach to adults may include adults voluntarily or involuntarily hospitalized as a result of a serious mental illness.

(4) Provision for services for populations with identified disparities in behavioral health outcomes.

(5) Provision for full participation of the family in all aspects of assessment, service planning, and treatment, including, but not limited to, family support and consultation services, parenting support and consultation services, and peer support or self-help group support, When requested by where appropriate for the individual.

Justification: Section 5806, details behavioral health services for adults and older adults. All adults, regardless of diagnosis or life experience, have the autonomy to decide what is best or most appropriate for them. As currently written, Section 5806 (a)(5) would require the involvement of families in all aspects of a person’s care, when an unnamed person determines that this is appropriate for the individual. Families often include complicated dynamics, with internal disagreement about the services most appropriate for an individual with behavioral health challenges. Allowing a third party to allow family involvement in an individual’s care against that person’s wishes risks violations of privacy, autonomy, HIPAA, and possibly civil rights.

III. Page 66. Amend Section 5845 to include two Transition Age Youth (TAY) aged 16-26 at the time of appointment on the Behavioral Health Services Oversight and Accountability Commission.

5845. (a) The Behavioral Health Services Oversight and Accountability Commission is hereby established to administer grants, identify key policy issues and emerging best practices, and promote high-quality programs implemented pursuant to Section 5892 through the examination of data and outcomes.

(b) (1) The commission shall replace the advisory committee established pursuant to Section 5814.

(2) The commission shall consist of 22 voting members as follows:

(A) The Attorney General or the Attorney General’s designee.

(B) The Superintendent of Public Instruction or the Superintendent’s designee.

(C) The Chairperson of the Senate Committee on Health, the Chairperson of the Senate Committee on Human Services, or another member of the Senate selected by the President pro Tempore of the Senate.

(D) The Chairperson of the Assembly Committee on Health or another Member of the Assembly selected by the Speaker of the Assembly.

(E) A county behavioral health director.

F) (i) The following individuals, all appointed by the Governor:

(I) One adult or older adult who has or who has had a serious mental illness.

(II) One adult or older adult who has or who has had a substance use disorder.

(III) Two Transition Age Youth ages 16-26 at the time of appointment to the Commission.

(IV) A family member of an adult or older adult with a serious mental illness.

Justification: The voices of people with lived experience are essential to the BHSOAC, and family members should never outnumber people with lived experience on boards or commissions. People with lived experience possess unique and vital knowledge that is separate and distinct from the knowledge possessed by family members.

Currently, SB 326 includes 4 family members and 2 individuals with lived experience. MHAC recommends that there be two additional people with lived experience on the BHSOAC, and these members should be Transition Age Youth (TAY). Half of the family representation in SB 326 is parents of children and youth. This is because the needs and experiences of children and youth with behavioral health challenges are very different than the needs and experiences of adults. When parents are represented, TAY should be equally represented to complement the family perspectives. Youth and young adults on commissions are often subject to tokenism. To avoid tokenism, it is essential that at least two TAY serve on the BHSOAC to provide support and encourage dialogue.

IV. Page 193. Section 18 should be amended to remove (b) which would repeal the original language of the MHSA allowing the Legislature to amend the Act by a two-thirds vote if amendments are consistent with and further the intent of the Act.

Sec. 18. (a) This act shall be broadly construed to accomplish its purposes. All of the provisions of this act may be amended by a two-thirds vote of the Legislature so long as such amendments are consistent with and further the intent of this act. The Legislature may by majority vote add provisions to clarify procedures and terms including the procedures for the collection of the tax surcharge imposed by Section 12 of this act.

(b) If amendments to the Mental Health Services Act are approved by the voters at the March 5, 2024, statewide primary election, this section shall become inoperative on January 1, 2025, and as of that date is repealed.

Justification: SB 326 significantly changes the MHSA amongst a number of other changes to behavioral health care in California. It is likely that over time, the Legislature will seek to clarify or change the BHSA. This option must be preserved.

V. Page 194. Amend Section 106 (b) to require the department to adopt regulations by July 1, 2028.

SEC. 106. (a) Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, the department may implement, interpret, or make specific the amendments made pursuant to this act by means of plan or county letters, information notices, plan or provider bulletins, or other similar instructions without taking further regulatory action.

(b) By July 1, 2028 2033, the department shall adopt regulations necessary to implement, interpret, or make specific the amendments made pursuant to this act, except for the additions of Article 3 (commencing with Section 5964) of Chapter 3 and Chapter 4 (commencing with Section 5965) of Part 7 of Division 5 of the Welfare and Institutions Code, in accordance with the requirements of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.

Justification: As currently drafted, SB 326 allows the department to implement the amendments to the act through internal documents such as information notices and bulletins. These internal documents require no stakeholder involvement and do not have appeal processes, and thus are enforceable documents written by a small group of people. Furthermore, once implemented, information notices, bulletins, and similar documents tend to become precedent, and are difficult to change through the regulatory process. We understand that the regulatory process takes time, but 8 years is excessive. Three years is a reasonable timeframe in which to draft regulations with meaningful stakeholder input.

MHAC appreciates the opportunity to offer suggested amendments to SB 326 to strengthen the peer voice within the BHSA. We have additional concerns with the legislation that will be detailed in a forthcoming letter. Please reach out to me or our Interim Director of Public Policy, Karen Vicari, if you have any questions about these proposed amendments.

In Community,

Heidi L. Strunk

President & CEO