Vista City Council
May 24, 2022

ACTION:
____________________________
Clerk/Secretary
Department: City Manager Item No: D2
Prepared by: Amanda Lee, Assistant City Manager Meeting Date: May 24, 2022 Approved by: Patrick Johnson, City Manager Agenda Location: Discussion SUBJECT: CALIFORNIA SENATE BILL 1338, COMMUNITY ASSISTANCE, RECOVERY, AND

EMPOWERMENT (CARE) COURT PROGRAM
RECOMMENDATION: Discuss California Senate Bill 1338 (Umberg), Community Assistance, Recovery, and Empowerment (CARE) Court Program, and consider adopting a resolution offered by Deputy Mayor Franklin as follows: City Council Resolution No. 2022- , supporting Senate Bill 1338, Community Assistance, Recovery, and Empowerment (CARE) Court Program.

PRIOR ACTION: None.

STATEMENT ON THE SUBJECT: Deputy Mayor Franklin requested the City Manager place a discussion item on an upcoming City Council meeting agenda to discuss California Senate Bill 1338, introduced by Senator Umberg and Senator Eggman, Community Assistance, Recovery, and Empowerment (CARE) Court Program. A proposed resolution for adoption is provided by Deputy Mayor Franklin and is attached as Exhibit 1.

FISCAL IMPACT: There is no direct fiscal impact associated with this discussion item.

EXHIBITS:

1.City Council Resolution No. 2022- , supporting Senate Bill 1338, Community Assistance, Recovery, and Empowerment (CARE) Court Program

2.CARE Court Fact Sheet

3.CARE Court Frequently Asked Questions

4.Funding Backgrounder: California’s Behavioral Health Approach and Funding

5.SB 1338, CARE Court Program
AGENDA
REPORT

CITY COUNCIL

COMMUNITY DEVELOPMENT COMMISSION

SUCCESSOR AGENCY

BUENA SANITATION DISTRICT

JOINT POWERS FINANCING AUTHORITY
05/24/2022 D2 Page 1 of 35
Approved above recommendation, adopted City Council Resolution No. 2022-78.

Vote: 5-0

00107622 2
RESOLUTION NO. 2022-

A RESOLUTION OF THE CITY COUNCIL OF THE CHARTERED CITY OF VISTA, CALIFORNIA, SUPPORTING SENATE BILL 1338, COMMUNITY

ASSISTANCE, RECOVERY, AND EMPOWERMENT (CARE)

COURT PROGRAM
The City Council of the City of Vista does resolve as follows:

1. Findings. The City Council hereby finds and declares the following:

A. In March 2022, California Governor Newsom unveiled the Community Assistance, Recovery and Empowerment (CARE) Court framework, and in April 2022, Senate Bill 1338 (SB 1338) was introduced, and if passed as written, would connect a person struggling with untreated mental illness, and often substance use challenges, with a court-ordered Care Plan for up to 24 months.

B. SB 1338 is a new approach to act early and get people the support they need and address underlying needs without taking away people’s rights, as CARE Court includes accountability for everyone, including the individual and local governments, with court orders for services.

C. SB 1338 is aimed at helping the thousands of Californians who are suffering from untreated schizophrenia spectrum or psychotic disorders that too often lead to homelessness, incarceration, institutionalization, or premature death.

D. SB 1338 will serve as an important tool to help in the City's effort to help secure permanent housing for those experiencing homelessness.

2. Action.

A. The above recitals are true and correct, and are the findings of the City Council.

B. The City Council hereby supports SB 1338, and authorizes staff and individual City Councilmembers to support SB 1338 on behalf of the City. [Continued on page 2.]

05/24/2022 D2 Page 2 of 35

RESOLUTION NO. 2022-

CITY COUNCIL OF THE CHARTERED CITY OF VISTA
PAGE 2
00107622 200107622.DOCX

3.Adoption. PASSED AND ADOPTED at a meeting of the City Council of the City of Vista held on May 24, 2022, by the following vote:

AYES:

NOES:

ABSTAIN:

APPROVED AS TO FORM:

DAROLD PIEPER, CITY ATTORNEY
By:

APPROVED
Darold Pieper
20220517074435

JUDY RITTER, MAYOR
ATTEST:

KATHY VALDEZ, CITY CLERK
By:
05/24/2022 D2 Page 3 of 35EXHIBIT 1

CARE COURTGovernor Newsom’s Proposal to Get People with Mental Health &Substance Use Disorders the Support they Need ●Community Assistance, Recovery and Empowerment (CARE) Court is a new proposal to get people with mental health and substance use disorders the support and care they need. ●CARE Court is aimed at helping the thousands of Californians who are suffering from untreated schizophrenia spectrum or psychotic disorders that too often lead to homelessness, incarceration, institutionalization, or premature death.
●California is taking a new approach to act early and get people the support they need and address underlying needs - and we’re doing it without taking away people’s rights. ●CARE Court includes accountability for everyone – on the individual and on local governments – with court orders for services.

SPONSORING NEW CARE COURT LEGISLATION
●In March the Governor unveiled the CARE Court framework, and engaged the public and stakeholders in community roundtables across the state and listening sessions with diverse stakeholders.
●Legislation was introduced by Senator Umberg, Orange County and Senator Eggman, San Joaquin County (SB 1338). Legislative hearings which started in April, will continue to engage the public - including people living with mental illness, families, local government, community behavioral health care providers, first responders, judges, and more - and further develop CARE Court. ●To meet the urgent needs for care and housing we see in our communities, families, and streets, CARE Court must be enacted by July 1, and local partners can begin implementation in the following months.

FOCUSING UNPRECEDENTED FUNDING ON RESULTS
●Behavioral health is now funded at a record $11.6 billion each year - up nearly 70% from $6.7 billion eight years ago. Funding comes from five major sources, including Prop 63 Mental Health Services Act, Medi-Cal and non-Medical Behavioral Health, and Realignment in 1991 and 2011. See CalHHS Funding Backgrounder for more details.
●Housing and homelessness investments totaled a historic $12 billion in last year’s budget. An additional $2 billion is proposed this year - with $1.5 billion focused on Behavioral Health Bridge Housing that will be prioritized to serve people in CARE Court. ●The Governor’s May Revision to the Budget will include costs for the new Care Court process, including judges and appointed counsel.

HOW CARE COURT WORKS
Updated April 25, 2022
05/24/2022 D2 Page 4 of 35EXHIBIT 2

CARE Court connects a person struggling with untreated mental illness – and often also substance use challenges – with a court-ordered Care Plan for up to 24 months. Each plan is managed by a care team in the community and can include clinically prescribed, individualized interventions with several supportive services, medication, and a housing plan. The client-centered approach also includes a public defender and supporter to help make self-directed care decisions in addition to their full clinical team, as well as opportunities for early engagement and settlement agreements for treatment plans.

CARE Court is designed on the evidence that many people can stabilize, begin healing, and exit homelessness in less restrictive, community-based care settings. It's a long-term strategy to positively impact the individual in care and the community around them. The plan advances an upstream diversion from more restrictive conservatorships or incarceration.

The CARE Court response can be initiated by family, county and community-based social services, behavioral health providers, or first responders. Individuals exiting a short-term involuntary hospital hold or a misdemeanor arrest may be especially good candidates for CARE Court. The Care Plan can be ordered for up to 12 months, with periodic review hearings and subsequent renewal for up to another 12 months.

CARE Court is based on accountability for all. Participants who do not successfully complete Care Plans may, under current law, be hospitalized or referred to conservatorship - with a new presumption that no suitable alternatives to community care are available. All counties across the state will participate in CARE Court under the proposal. If local governments do not meet their specified duties under court-ordered Care Plans, the court will have the ability to order sanctions and, in extreme cases, appoint a receiver to ensure services are provided.

Updated April 25, 2022
05/24/2022 D2 Page 5 of 35

Frequently Asked Questions
I. Care Plan

1.The CARE plan definition says it is an individualized plan, created by respondent, supporter, their counsel, and county BH. Why then are we allowing the courts to order the plan modified “to better meet the needs of the parties?” What parties? How do the courts know what is better for the respondent? A ssisted Outpatient Therapy (AOT)explicitly prohibits a court from ordering any services that are not in the written plan submitted by the licensed mental health treatment provider.

Would this go against the respondent’s advance directive? The CARE plan is an individualized, clinically appropriate range of behavioral health related services and supports provided by a county behavioral health agency, including, but not limited to, clinical care, stabilization medications, and a housing plan, pursuant to Welfare and Insitutions Code section 5982.

The Court may determine that the CARE plan does not include all required elements to address the behavioral health needs of the respondent. Sec 5976 clarifies that modifications to the CARE Plan to better meet the needs of the parties must be within the scope of county behavioral health services.

If the CARE participant has an existing psychiatric advance directive in place, it will be considered. It is far more likely that the participant will work with the supporter, the behavioral health team and others, if desired, to develop a psychiatric advance directive prior to CARE Court graduation.

2.In the CARE plan definition, should there be a more robust menu of services, like in Welfare and Insitutions Code section 5348 for AOT?
The CARE plan is an individualized, clinically appropriate range of behavioral health related services and supports provided by a county behavioral health agency, including, but not limited to, clinical care, stabilization medications, and a housing plan, pursuant to Section 5982. Though not required, counties are encouraged to employ medically necessary, evidence-based practices and promising practices supported with community-defined evidence, which may include assertive community treatment, peer support services, and psychoeducation.

3.Under the CARE plan (see Welfare and Insitutions Code section 5982 (b) (2)) it talks about medication being prescribed by a licensed behavioral health care 05/24/2022 D2 Page 6 of 35EXHIBIT 3

provider. Not all licensed providers can prescribe medication. Do we need a clarification that this does not expand scope?
It is not our intention to expand scope of practice and that can be clarified.

II. Eligibility Criteria

1. One of the criteria for CARE is that the respondent “currently lacks medical decision-making capacity.” However, this proposal allows for an affirmation or affidavit by a BH professional who had examined the respondent within three months and states it applies to a respondent who meets or is likely to meet the diagnostic criteria. How does a three-month old examination qualify as “current?” Also, does not “likely to meet” contradict “current?”
The affidavit submitted in the petition must be within 90 days, but as Welfare and Insitutions Code section 5977 (d) stipulates there is an evaluation review hearing where the court reviews the clinical evaluation conducted by county behavioral health as well as any other evidence from all interested individuals, including, but not limited to, evidence from the petitioner, the county behavioral health agency, the respondent, and the supporter. If the court finds that the evaluation and other evidence demonstrate clear and convincing evidence that the respondent meets the CARE criteria, the court is required to order the county behavioral health agency, the respondent, the respondent’s counsel and supporter to jointly develop a CARE plan.

2.Why can only one previous 14-day involuntary hold for intensive treatment within the last 90 days qualify you for CARE?
Welfare and Insitutions Code section 5972 outlines the criteria for when the court may order a respondent to participate in CARE proceedings if the court finds, by clear and convincing evidence.

1.The person is 18 years of age or older.

2.The person has a diagnosis of schizophrenia spectrum or other psychotic disorder, as defined in the most current version of the Diagnostic and Statistical Manual of Mental Disorders.

3.The person is not clinically stabilized in on-going treatment with the county behavioral health agency.

4.The person currently lacks medical decision-making capacity.

Sections 5973 and 5974 outline who can submit a petition and what kind of information and evidence it must include. All petitions must include facts that 05/24/2022 D2 Page 7 of 35

support the petitioner’s belief that the respondent meets the CARE criteria, including identification of the county behavioral health agency with responsibility for providing care to the respondent, if known. In addition, the petitioner must provide either an affidavit as described in section 5972 OR evidence that the respondent was detained for intensive treatment pursuant to Article 4 (commencing with Section 5250) of Chapter 2 of Part 1 within the previous 90 days.

As summarized in the question above, a full evaluation review hearing, including a clinical evaluation, as well as hearing other evidence, must be conducted prior to the court issuing an order for a CARE plan to be developed, unless stipulated to by the parties.

The language, as currently drafted, should be amended for clarity.

3.Why is a court allowed to refer a person to CARE who is the subject of AOT or conservatorship proceedings? Shouldn’t that be the decision of a treating mental health professional—to determine which program is the most clinically appropriate for the person?
We would envision county behavioral health or the individual and their Counsel advising the judge in AOT or LPS conservatorship proceedings on the appropriateness of referral to CARE Court.

4.Is “Schizophrenia spectrum or other psychotic disorders” too narrow? Do you see “other specified psychotic disorder “and “unspecified psychotic disorder” as opening this up? More generally, what is the population we are talking about here?
A diagnosis within the disorder class of schizophrenia spectrum or other psychotic disorders is one of the four criteria for CARE Court outlined in Welfare and Insitutions Code section 5972. CARE Court is specifically designed to target psychotic disorders that interfere with a person’s ability to understand reality or make rational decisions due to symptoms of hallucinations, delusions and disorganized thinking, which are the characteristic symptoms of Schizophrenia and Schizoaffective disorders. Like other brain diseases such as neurocognitive diseases (dementias), this category of disease can interfere with an individual’s medical decision-making capacity, and that is the focus of CARE Court. By including “other psychotic disorders” in the qualifying diagnoses, the program is inclusive of other individuals experiencing psychotic symptoms who may not 05/24/2022 D2 Page 8 of 35

have received a formal diagnosis of schizophrenia but who lack medical decision-making capacity due to psychotic symptoms.

CARE Court focuses on diseases that impact insight and decision making to avoid conflating these illnesses with other illnesses that may impact functioning but do not interfere with an individual’s ability to make medical decisions for themselves. Those served by CARE Court are most likely to benefit from antipsychotic medications to reduce the symptoms of hallucinations, delusions, and disorganization that cause impaired insight and judgment in individuals living with Schizophrenia spectrum and other psychotic disorders.

5.Is this intended for persons who currently lack decision-making capacity, or for persons who are experiencing mental illness but have not yet reached incapacity/are coming off a hold and have stabilized? If it is the former, how can the person meaningfully participate in a settlement agreement/help devise a care plan/give legal consent to a settlement as contemplated by the language? If it is the latter, what is the basis for mandating a person’s participation, unless it is provided as a diversion option for persons charged with a misdemeanor? Medical decision-making capacity is one of the four criteria outlined in Welfare and Insitutions Code section 5972. Medical decision-making capacity is a functional assessment regarding a particular decision that evaluates four key components: an ability to express a treatment choice, an ability to express an understanding of causal relationships and outcome probabilities, an ability to appreciate the nature of the illness, treatment options and likely individualized direct outcomes, and an ability to rationally discuss the risks and benefits of treatment options and the reasoning behind a choice.

CARE Court is intended for individuals who lack medical decision-making capacity because their illness is untreated or undertreated, and therefore may require a court ordered CARE plan to secure that treatment, but who can still be supported in making choices about aspects of their care such as preferred medications, psychosocial interventions, and housing environment and who can still regain decision-making capacity through that care.

Medical decision-making capacity is distinct from the LPS criteria for a psychiatric hold in which the individual must be a danger to self, danger to others, or be gravely disabled.

6.If the petitioner is the family member, what evidence does the petitioner need to provide or present to demonstrate prima facie evidence that the respondent lacks medical decision capacity? Alternatively, is it the goal to provide that if you have 05/24/2022 D2 Page 9 of 35

been subject of a 5250, you are deemed to have lacked medical decision-making authority?
The criteria for CARE Court participation is outlined in section 5972, including facts (f) and evidence (g). For the petition, the petitioner can provide as evidence (g)either the affirmation or affidavit of a qualified behavioral health professional or that respondent has been subject to a hold for intensive treatment pursuant to 5250. Through the evaluation review hearings, the individual still would be evaluated to determine if they lack medical decision-making capacity, unless the parties stipulate otherwise.

7.Is there a way to allow persons who believe they need mental health services to opt in on a more voluntary basis? For example, persons who are coming out of 5150/5250/5270 holds or conservatorships and who want wraparound services? The legislation does not provide for a self-petition process—but this is something that should be considered. With regard to it being on a voluntary basis, t he CARE Court settlement agreement process creates a pathway for those who are subject to a petition to enter treatment and services that the county behavioral health agency provides, without a court order. In addition, individuals and counties notified of a petition for CARE Court can directly engage in a treatment plan, and then at the Initial Hearing may be found not t o meet the criteria for CARE Court due to current provision of and engagement in treatment.

III. Court Process

1.On the court process, the initial CARE hearing is required no later than 14 days from the date of the petition being filed. In AOT, the requirement is within 5 days.

Why are we almost tripling the timeframe for this proposal when we are dealing with the most severely mentally ill—given also that, the CARE process allows for various 14-day extensions before the 1-yr clock even starts? The timing is a result of one of the key differences between AOT and CARE Court – individuals can file directly with the court. To elaborate, in AOT only a county can file and it often takes a county weeks, and sometimes months, to investigate, offer services, and examine the individual before a petition for AOT is filed, so the short time frame between the AOT petition and the first hearing is appropriate. In CARE court, the petition can be filed by a range of designated people, so the petition needs some time for review by the court and for engagement of the parties before proceeding to the Initial Hearing. In CARE Court, the steps of engagement and evaluation happen after petition, through notice and engagement of county behavioral health, the respondent, counsel, 05/24/2022 D2 Page 10 of 35

and supporter, which occurs within 5 days of petition; the Initial hearing, within 14 days of petition; and the subsequent Case Management conference hearing.

2.If the respondent stabilizes at any point throughout the process of the petition, does the petition end? Likewise, if at any time during the 1-yr CARE treatment plan the respondent stabilizes, can they petition to have the court-ordered treatment end?
The CARE plan will continue for up to one year to support long term stability of the participant and to provide sufficient time for the CARE plan goals to be realized and a graduation plan to be completed. The respondent may propose modifications to the plan and an earlier graduation.

3.For IST misdemeanants who otherwise are not eligible for mental health diversion, would it make more sense to mirror the new care court referral to what currently exists in the law for AOT or conservatorship referral? These provisions should be consistent.

4.Would there need to be a Riese hearing on capacity or is that wrapped up in the “Evaluation hearing?”
There is no Riese hearing as part of CARE Court because no medications are forcibly administered. Additionally, CARE Court does not allow for a psychiatric hold where Riese hearings typically take place.

5.The timeframe for the process—stretching over many weeks—suggests there is no imminent destabilization or need for care, as compared to AOT/5150, which happens much more quickly. If the goal is to bring in destabilized persons, should the timeline be tightened up ?
As discussed above, the timing of the CARE court process is more lengthy than the AOT court process because we are allowing a direct petition to the court to begin court supervision of services earlier. That said, alternative timeframes can be considered.

6.Should a CARE plan be specifically mentioned within a settlement agreement under section 5977 (c)?
Yes. The settlement agreement should at a minimum include the required Care plan elements.
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7.If an agreement is made under section 5977 (c) (3) are we basically skipping down to (f)? Does that need to be explicit?
We anticipate clarifying that the matter can be terminated after the 60 day hearing if both parties are participating in the settlement agreement.

8.Are there going to be hearsay issues given the People v. Sanchez (2016) ruling? We would imagine that People v. Sanchez would limit an expert witness’s use of hearsay in their testimony– as it has in LPS and AOT.

9.Is there a risk of abuse if a person can be brought in with just a petition and prima facie evidence of eligibility, especially because non-experts are permitted to file the petition? AOT requires a concerned person to go through the county and the county decides whether to bring the petition, does this provide better protections?
The petition requires both facts which support the petitioner’s belief that the person who is the subject of the petition meets each criteria and supporting evidence, through either an affidavit from a qualified mental health professional that the person meets, or is likely to meet, the criteria or evidence that the person who is the subject of the petition had a section 5250 hold within the last 90 days.

The petition shall be signed under the penalty of perjury. The court may dismiss a case with prejudice if finds that the filing was not in good faith.

10.There is no clinical evaluation until after the target of the petition is in the system and has been required to try to reach a settlement agreement. Should there be an evaluation earlier? How can there be a settlement agreement without an evaluation?
If the subject of the petition does not believe they meet the CARE Court criteria they may decline their option of entering into the settlement agreement and move to the evaluation.

11.Welfare and Insitutions Code section 5976 states that the target of the petition is entitled to counsel, but does not specify that counsel must be provided if they cannot afford it, as with LPS proceedings. Is the intent to provide counsel? Yes. Section 5977 requires the court to appoint counsel in all cases, not based on whether the individual can afford counsel.

12.How does the settlement agreement work? Is it essentially a voluntary CARE court treatment plan? Could this be made clearer?
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The settlement agreement is a treatment plan entered into by both the respondent and county behavioral health with court supervision, but not court orders.

13.Should the court order the settlement negotiations and the development of a treatment plan to run simultaneously? There see ms to be a lot of time before the health department is figuring out what the target of the petition needs, or even before there’s an evaluation.

County behavioral health should begin engaging the subject of the petition as early as possible to offer treatment, including upon receipt of notice of a petition.

If an individual is clinically stabilized in on-going treatment with the county behavioral health agency, the parties may no longer meet the criteria for CARE Court and the case may be dismissed at the Initial hearing; or they may more promptly enter into a settlement agreement at the Case Management Conference hearing.

14.The timeline for an adopted CARE plan is a status conference at 60 days after implementation, plus regular conferences set at least every 180 days. In a yearlong plan, this means the default is only two status conferences; should there be greater court oversight?
The goal is to limit court involvement if the individual is doing well in the community and the county is providing services– which is why deference has been given to the court. That said, language should be added that clearly lays out how a hearing can be requested in between status conferences.

15.The bill requires notice to be provided to the respondent’s counsel. How will the family member know who is the respondent’s counsel?
The court will be appointing counsel in every case–likely the public defender in the vast majority of counties. Information on service requirements, including addresses for the entities to be served, will need to be included in the court’s self-help center.

16.Should we require the Judicial Council to develop forms – specifically for a petitioner who is a family member – to make it easier for them to know how to do this?
Yes–the intent is to have the Judicial Council develop accessible forms.

IV. Psychiatric Advance Directive

1.How are Psychiatric Advance Directives currently working in practice? Consenting to care ahead of time that you may refuse in the moment is very 05/24/2022 D2 Page 13 of 35

different from the inverse, which is more common for advance directives. Any info from the MHSOAC on their pilot?
U.S. Centers for Medicare and Medicaid Services clarified over 15 years ago that Psychiatric Advance Directives (PAD)s should be part of psychiatric care but only 27 states have enacted laws and policies recognizing PADS. Advance directives are commonly used for physical health conditions and efforts have been underway for over a decade to increase their use for psychiatric conditions. The National Resource Center on Psychiatric Advance Directives (NRC) provides the following definition, “PADS are relatively new legal instruments that may be used to document a competent person’s specific instructions or preferences regarding future mental health treatment. Psychiatric advance directives are used to plan for the possibility that someone may lose the capacity to give or withhold informed consent to treatment during acute episodes of psychiatric illness”.

PADs can help expand the use of Supportive Decision Making tools. PADs are not intended to be used to require on -going medication or involuntary inpatient care. A PAD allows a person in a mental health crisis to retain their decision- making capacity by choosing supporters to help advocate for their choices.

While California may not yet have specific legal statute regarding PADs there are efforts underway to develop what will work best for California. The Mental Health Services Oversight and Accountability Commission has a learning collaborative with several counties to study and develop standardized templates, training, technology and potentially enabling legislation to support accessibility and sustainability of PADs. The administration looks forward to further engaging in these efforts.

V. Respondent Placement and Housing

1.This proposal is silent, as is AOT, on this point, but where is the respondent throughout this whole process? Are they being held? Are they at an inpatient facility? Are they released? Provided with housing?
CARE Court does not include any locked or custodial commitments. Instead, it is an outpatient model that seeks to support housing stability. For participants who are unhoused, counties may utilize local, state, federal and other housing and homelessness funding to serve CARE participants. Additionally , the proposed $1.5 billion for Behavioral Health Bridge Housing funding would be prioritized to serve CARE Court participants per Sec 5983 (b).
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2.Article Five requires the care plan to include a Housing Plan, with language specifying it includes the needs of the respondent and the resources considered in support of an appropriate placement. It goes on to say counties may offer appropriate housing placements in the region as “early as is feasible in the engagement process.” Does the respondent continue to remain unhoused as they move through the Care COURT process depending on the resources available and the county’s ability to identify an appropriate housing option? Could the respondent complete the care court process without their housing needs ever being met if there was a “housing plan” in place but not an actual placement made?
In the 2021 Budget Act, the state made a $12 billion investment to prevent and end homelessness which included funding to create new community based residential settings and long-term stable housing for people with severe behavioral health conditions. While CARE Court does not create a right to housing, the legislation recognizes the importance of housing in finding stability and staying connected to treatment. To this end, the Governor’s proposed 2022- 2023 budget includes $1.5 billion to support Behavioral Health Bridge Housing, which would fund clinically enhanced bridge housing settings that would be prioritized to serve CARE Court participants, per Sec 5983 (b).

3.Regarding the housing plan, what is a “region?” Counties are being permitted to offer appropriate housing placements “in the region.” Does that mean that someone from Sacramento County may be placed as far east as Lake Tahoe? Individuals who are served by CARE Court will have diverse housing needs on a continuum ranging from clinically enhanced interim or bridge housing, licensed adult and senior care settings, supportive housing, to housing with family and friends. Housing placement should meet the individual needs of the CARE Court participant, including their geographic preferences to the extent possible. In order to support on-going connection to treatment, identifying housing that is near to treatment and other community resources will support the success of the participant. Particularly in rural areas of the state, the most appropriate and near placements may be in the region, but not the county.

4.If courts are not required to order and counties are not being required to provide housing, doesn’t that negate this whole CARE proposal? Isn’t the purpose to ensure a respondent has a care plan, a supporter, and appropriate housing? While CARE Court does not provide a right to housing, the 2021 Budget Act made a $12 billion investment to prevent and end homelessness which included 05/24/2022 D2 Page 15 of 35

funding to create new community based residential settings and long -term stable housing for people with severe behavioral health conditions. In addition, the Governor’s proposed 2022- 2023 budget includes $1.5 billion to support Behavioral Health Bridge Housing, which would fund clinically enhanced bridge housing settings that would be prioritized to serve CARE Court participants, per Sec 5983 (b).

5.Does this structure mean the individual has to comply with stabilization medication and specialty mental health treatment to access housing? If so, how does this align with housing first principles as currently defined and practiced? CARE Court holds the county and the individual accountable to a CARE plan and supports connection to housing as described above. Counties may leverage local, state, federal, and philanthropic resources to support housing placements for CARE Court participants. Nothing in the statute makes housing contingent on CARE Court participation.

6.Does it change the prioritization of limited housing resources available? Would someone be more likely to access housing if they go through CARE Court than other county/city/continuum of care processes?
The Governor’s proposed 2022- 2023 budget includes $1.5 billion to support Behavioral Health Bridge Housing, which would fund clinically enhanced bridge housing settings that would be prioritized to serve CARE Court participants per Sec 5983 (b). This is the only fund source that would statutorily require prioritization of CARE Court participants, though other funds sources for housing are available to serve this population and may also be prioritized at the local level as applicable.

7.If someone does to access housing early on in the CARE court process but then struggle with their treatment plan and fall of their medication, do they lose their housing?
Nothing in the statute makes housing contingent on CARE Court participation.

VI. Post -Hearing Process

1.What happens when a respondent has had two consecutive CARE episodes and they still have not improved? Likewise, if at any time during the first or second year the treating mental health provider does not believe the respondent will improve, what happens?
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CARE is a new approach and is designed to provide meaningful connection to treatment and services for up to 24 months. If, at any time during the proceedings, the court determines by a preponderance of evidence that the respondent is not participating in CARE proceedings, after the respondent receives notice, or is not adhering to their CARE plan, the court may terminate the respondent’s participation in the CARE program. The court may utilize existing legal authority pursuant to Article 4 (commencing with Section 5200) of Chapter 2 of Part 1, to ensure the respondent’s safety. The subsequent proceedings may use the CARE proceedings as a rebuttable presumption that no suitable community alternatives are available to treat the individual.

2.What happens if after one year (or even two years), a respondent improves and is doing well, but they know that without CARE they will not be able to maintain stability, even with targeted outpatient treatment?
Upon successful completion and graduation by the Court, the participant remains eligible for ongoing treatment, supportive services, and housing in the community to support long term recovery. A PAD can remain in place for any future crises.

3.At the 11-month review – what does “successfully completed participation” mean?
This is an evidentiary status hearing. The CARE participant, supporter, counsel, and county behavioral health agency can present evidence, and the court will hear recommendations from the county behavioral health agency. The participant may request graduation or reappointment to CARE court process. If the respondent requests to be graduated from, or times out of, the CARE court process, the court will officially graduate the respondent and terminate its jurisdiction with a graduation plan which successfully completes participation.

4.Where is the authority to reappoint for an additional year if someone is unsuccessful?
A clear standard as to when the program can be extended needs to be add ed to the language.

5.Should CARE court be limited to the one year, not extended, unless the person chooses to do so voluntarily after successful completion? If they do not succeed at the one year or fail earlier, they would be returned to criminal court for continued proceedings. Rationale is because under regular diversion a misdemeanant’s term in a program is a maximum of one year and similarly if a person serves a term in custody the max is anywhere from 6 months to a year. 05/24/2022 D2 Page 17 of 35

Since this would be attached to a criminal case, the maximum terms should be the same.

CARE Court should allow for an additional 12 months. This issue may be addressed by terminating the criminal case once the individual is accepted into the program– as is currently done for AOT.

6.What happens if a person is complying with treatment but is not showing progress or considered “successful?”
We consider participation in treatment success. To the extent that the individual has a subsequent mental health crisis, a PAD may be relied upon, or the court may utilize existing legal authority pursuant to Article 4 (commencing with Section 5200) of Chapter 2 of Part 1, to ensure the respondent’s safety.

7.What is the plan for someone who has not complied with a CARE plan but has not destabilized to the point of needing 5150 care, and who did not participate as part of a diversionary program? Is there a basis for imposing consequences? CARE Court does not create new standards or change existing legal authority pursuant to Article 4 (commencing with Section 5200) of Chapter 2 of Part 1. The county should continue to engage any patients who are terminated from CARE Court and are not subject to existing legal authority.

8.What happens if a CARE court participant moves jurisdictions, or becomes homeless? Is there a possibility of allowing a court to order housing, if the lack thereof is what has kept the person from stabilizing in the past? WIC 5982 outlines that counties may offer appropriate housing placements in t he region as early as feasible in the engagement process but , as currently drafted, does not allow the court to order housing or to require the county to provide housing.

If a person moves jurisdictions, existing rules for behavioral health services continuity should apply.

VII. Support Person

1.Will the supporters be trained in engaging with people with MH/SUD conditions? Likewise, if a respondent decides on a supporter not provided by the Dept of Aging, shouldn’t that supporter receive some kind of training if they will be guiding the respondent through court proceedings, meetings, etc.? Is the Dept of Aging the correct entity to train supporters?
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Supporters will be trained in strategies to engage individuals with severe mental illness. A key department responsibility will be to effectively train supporters on supported decision making with individuals who have behavioral health conditions and on the use of psychiatric advance directives. As W elfare and Institutions code 5980 describes this training will be developed with input from peers, family members, disability groups, providers, and other relevant stakeholders.

Self-direction is a critical element of CARE. Welfare and Institutions code 5980(c) explains that if a respondent chooses their own supporter, that person may serve as a supporter without compensation. Volunteer supporters will be provided with required, accessible training that includes, at a minimum, a description of their role, expectations, and conflicts of interest. Respondent may also choose not to have a supporter.

With a focus on individual empowerment and access to services in the home and community, California Department of Aging (CDA) has long focused on person - centered advocacy and support programs for older and disabled adults, including the Long-Term Care Ombudsmen program for residents of nursing homes and assisted living facilities, the Friendship Line for behavioral health support, and, more recently, the Office of the Patient Representative that represents the wishes of incapacitated individuals in long-term care facilities. In July, subject to final budget approval of the Governor’s January budget proposal, CDA will be hiring a Conservator/Public Guardian liaison that will work with local Pu blic Guardian/Public Conservator offices to help strengthen probate conservatorships for adults with diminished capacity to make financial and personal care decisions.

The supporter program compliments CDA’s focus on advocacy and empowerment of older and disabled adults.

2.If the supporter is required to assist the respondent with understanding the entire CARE process, shouldn’t the supporter be required to attend court proceedings rather than just being allowed to attend?
The supporter should attend and that clarification in the language would be helpful

3.Why the Department of Aging? Would the office of patient’s rights in DHCS make more sense? Will CDA decide the contract specifications if the role is contracted out? Is a competitive process envisioned?
As stated above, CDA has expertise in managing person -centered advocacy and support programs with expert community-based organizations that effectively 05/24/2022 D2 Page 19 of 35

serve vulnerable older and disabled adults, including preserving the righ ts of unrepresented and vulnerable people. They are the appropriate entity to develop and administer a State Supported Decision Making program, in partnership with expert community-based organizations. The Office of Patients’ Rights within DHCS has the responsibility to ensure that mental health laws, regulations, and policies for the rights of mental health service recipients are observed in licensed mental health facilities.

As Welfare and Institutions code 5980 outlines CDA may enter into a technical assistance and training agreement to provide trainings either directly to supporters or to the contracted entities who will be responsible for hiring and matching supporters to respondents. CDA will seek stakeholder input on contract specifications and contract award criteria. The Supporter program contracts shall include labor standards.

4.If supporters are being bound to “existing obligations and prohibitions,” who is ensuring that a supporter not trained/provided by Dept of Aging knows all this? As the program is developed, that will be incorporated into the training envisioned for volunteer Supporters.

5.For the supporter, if someone does volunteer, should there be some written commitment to serve in this role like in 5350(e) (2)?
As the program is developed, that will be incorporated into the training envisioned for volunteer Supporters.

6.Who sets the qualifications and compensation? Who is the employer? What about possible conflict of interest?
Welfare and Institutions Code section 5980 outlines that CDA will develop the Supporter program and will do so with support and input from peers, family members, disability groups, providers, and other relevant stakeholders. CDA intends to contract with community-based organizations at the state, regional or local level who will serve as the employer of the supporters. CDA will be responsible for addressing any potential conflicts of interest for CDA funded supporters or contracted entities.

7.The language allows contracted entities to “match” the supporter and has the court appointing a supporter within 5 days of filing. Does CDA or the contractor provide name(s) to the court or to the respondent first? Does the respondent have a choice?
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Self-direction and choice are critical elements of CARE Court. Reasonable and feasible strategies will be employed to provide Supporter choice to the respondent, recognizing limitations due to the immediate need to have a supporter available in the 5-day period and in every county in California.

Respondents can also decline a supporter.

VIII. Evaluation and Accountability

1.Like we are seeing with LPS, we need specific and robust reporting requirements, should those be included here for technical assistance piece.

A robust data collection, evaluation, and accountability framework will be added to the legislation. This will include demographic data to mitigate against and remedy racial, ethnic, and other inequities in behavioral health and housing. 05/24/2022 D2 Page 21 of 35

April 20, 2022
Funding Backgrounder:

California’s Behavioral Health Approach and Funding
CARE (Community Assistance, Recovery, and Empowerment) Court is a new process to assist people living with under or untreated schizophrenia spectrum or other psychotic disorders who lack medical decision-making capacity, many of whom are unhoused. CARE Court empowers Californians in crisis to access the care, treatment, and housing plan they need in their community. It includes accountability for both individuals and local governments with court orders for needed services.

Counties can tap into multiple funding sources to provide the court ordered care and treatment. *Counties received Medi-Cal behavioral health funding for all years reflected. Estimates are included for 2014-15 and 2022-23 to provide an overall view of growth in this funding over the period reflected. *Data between 2014-15 and 2020-21 represent actuals, except 2014-15 Medi-Cal Behavioral Health costs, which are an estimate. Data for 2021-22 and 2022-23 are estimates.
*Medi-Cal non-specialty mental health managed care state costs of $406 million in 2014-15 and $529.1 million in 2022-23 are not included in this graph. Also, not included in the graph are Medi-Cal carved-out psychotropic medications. For reference, psychotropic medications were estimated to be $1.1 billion in 2017-18. Additionally, No Place Like Home Program actual expenditures of $590 million in 2018-19 and $622 million in 2019-20, and estimated expenditures of $202 million in 2021-22 and $400 million in 2022-23 are not included in this graph. Not all Non-Medi-Cal Behavioral Health (Federal Block Grants) are available to counties.

The below represents many of the recent investments designed to support the public community behavioral health system, however the list is not exhaustive (amounts reflected in the graph above are denoted with an asterisk*):

Housing and Homelessness
CARE Court builds on significant new investments, including Governor Newsom’s $14 billion multi -year investment to provide 55,000 new housing units and treatment slots. The Governor’s approach focuses on quickly rehousing unsheltered individuals with behavioral health issues, all while new units come online, while also transforming Medi-Cal to provide more behavioral health services to people struggling the most. Part of the $14 billion investment reflects the following:
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•Behavioral Health Continuum Infrastructure Program: $2.2 billion to support competitive grants to qualified entities to construct, acquire, and rehabilitate real estate assets or to invest in mobile crisis infrastructure to expand the community continuum of behavioral health treatment resources.
•Community Care Expansion Program: $805 million for acquisition, construction, and rehabilitation to preserve and expand adult and senior care facilities that serve SSI/SSP and Cash Assistance Program for Immigrants. This program supports seniors and adults who are at risk of or experiencing homelessness, including those who have behavioral health conditions. It expands the state’s housing and care continuum, facilitating better treatment outcomes and preventing the cycle of homelessness or unnecessary institutionalization. •Behavioral Health Bridge Housing Program: $1.5 billion to address the immediate housing and treatment needs of people experiencing unsheltered homelessness with serious behavioral health conditions by providing time-limited operational supports in various bridge housing settings, including existing assisted living settings.

Children and Youth
•Children and Youth Behavioral Health Initiative: $4.7 billion (including $480.5 million in the Behavioral Health Continuum Infrastructure Program, described above, targeted to individuals 25 years of age and younger) to help transform the state’s behavioral health system into an innovative ecosystem in which all children and youth 25 years of age and younger, regardless of payer, are screened, supported, and served for emerging and existing behavioral health needs.

Behavioral Health Workforce
•Care Economy Workforce: $1.7 billion for Care Economy Workforce investments, including funding to recruit and train 25,000 new community health workers as well as additional psychiatric providers.
•*Peer Support: $31.3 million federal funds to add peer support specialist services as a covered Medi-Cal benefit in the public behavioral health delivery system.

Substance Use Disorder
•Opioid Settlements Funds: $86 million to support opioid abatement programs, including, but not limited to, distribution of naloxone to homeless service providers, operation of a web-based statewide addiction treatment locator platform, support of vocational rehabilitation employment services, provider training on opioid treatment, and education and outreach campaigns.

Behavioral Health Crisis Continuum
•*Behavioral Health Crisis Continuum: $20 million one-time federal funds in 2021-22 to expand capacity to the 13 accredited crisis call centers in California. In 2022, the California Health and Human Services Agency is starting a planning process to develop a clear strategy for how all the components of the behavioral health crisis continuum interact, including connections between prevention efforts like hotlines and peer support services, 9-8-8 mental health crisis call centers, and mobile crisis response at the local level. •*Medi-Cal Mobile Crisis Benefit: $1.4 billion to add qualifying community-based mobile crisis intervention services as a Medi-Cal covered benefit available to eligible Medi-Cal beneficiaries exclusively through the Medi-Cal behavioral health delivery system. Qualifying community- based mobile crisis intervention services will be available 24 hours a day, 7 days a week, and provided by a multidisciplinary mobile crisis team to Medi-Cal beneficiaries in the community. 05/24/2022 D2 Page 23 of 35

5/18/22, 4:58 PM Bill Text - SB-1338 Community Assistance, Recovery, and Empowerment (CARE) Court Program. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB1338 1/12 SENATE BILL NO. 1338
SHARE THIS:Date Published: 04/07/2022 09:00 PM
SB-1338 Community Assistance, Recovery, and Empowerment (CARE) Court Program.(2021-2022) AMENDED IN SENATE APRIL 07, 2022
AMENDED IN SENATE MARCH 16, 2022
CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION
Introduced by Senators Umberg and Eggman
February 18, 2022
An act to add Part 1.3 (commencing with Section 5565) to Division 5 of Section 1374.723 to the Health and Safety Code, to amend Section 1370.01 of the Penal Code, and to add Part 8 (commencing with Section 5970) to Division 5 of the Welfare and Institutions Code, relating to mental health.

LEGISLATIVE COUNSEL'S DIGEST
SB 1338, as amended, Umberg. Community Assistance, Recovery, and Empowerment (CARE) Court Program.

Existing
(1)Existing law, the Assisted Outpatient Treatment Demonstration Project Act of 2002, known as Laura’s Law, requires each county to offer specified mental health programs, unless a county or group of counties opts out by a resolution passed by the governing body, as specified. Existing law defines “assisted outpatient treatment” to mean categories of outpatient services that have been ordered by a court, as prescribed. law, the Lanterman-Petris-Short Act, provides for short-term and longer-term involuntary treatment and conservatorships for people who are determined to be gravely disabled.

This bill would establish the Community Assistance, Recovery, and Empowerment (CARE) Court Program to connect a person struggling with untreated mental illness and substance use disorders with a court-ordered CARE plan. The bill would authorize a court to order an adult person who is suffering from a mental illness and a substance use disorder and who lacks medical decisionmaking capacity to obtain treatment and services under a CARE plan that is managed by a CARE team, as specified. The bill would require each county to participate in providing services under the program. By imposing new duties on counties, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Home Bill Information California Law Publications Other Resources My Subscriptions My Favorites 05/24/2022 D2 Page 24 of 35EXHIBIT 5

5/18/22, 4:58 PM Bill Text - SB-1338 Community Assistance, Recovery, and Empowerment (CARE) Court Program. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB1338 2/12 This bill would enact the Community Assistance, Recovery, and Empowerment (CARE) Act, which would authorize specified people to petition a civil court to create a CARE plan and implement services, to be provided by county behavioral health agencies, to provide behavioral health care, stabilization medication, and housing support to adults who are suffering from schizophrenia spectrum and psychotic disorders and who lack medical decisionmaking capacity. The bill would specify the process by which the petition is filed and reviewed, including requiring the petition to be signed under penalty of perjury, and to contain specified information, including the acts that support the petitioner’s belief that the respondent meets the CARE criterion. The bill would also specify the schedule of review hearings required if the respondent is ordered to comply with a one-year CARE plan by the court. The bill would authorize the CARE plan to be extended for up to one year and prescribes the requirement for the graduation plan that is required upon leaving the CARE program. By expanding the crime of perjury and imposing additional duties on the county behavioral health agencies, this bill would impose a state-mandated local program.

This bill would include in the CARE program the respondent’s right to have a supporter and counsel at all proceedings.

The bill would require the California Health and Human Services Agency, subject to appropriation, to administer the CARE Supporter program, which would make available a trained supporter to each respondent.

This bill would authorize the court, at any time during the proceedings if it finds the county not complying with court orders, to fine the county up to $1,000 per day and, if the court finds persistent noncompliance, to appoint a receiver to secure court-ordered care for the respondent at the county’s cost. (2) Existing law, the Knox-Keene Health Care Service Plan Act of 1975, provides for the licensure and regulation of health care service plans by the Department of Managed Health Care. Existing law requires health care service plans to provide coverage for medically necessary treatment of mental health and substance use disorders. Violation of the Knox-Keene Act is a crime.

This bill would require health care service plans to cover the cost of developing an evaluation for CARE services and the provision of all health care services for an enrollee when required or recommended for the enrollee pursuant to a CARE plan, as specified, without cost sharing. By creating a new crime, this bill would impose a state-mandated local program.
(3) Existing law prohibits a person from being tried or adjudged to punishment while that person is mentally incompetent. Existing law establishes a process by which a defendant’s mental competency is evaluated and by which the defendant receives treatment, with the goal of returning the defendant to competency. Existing law suspends a criminal action pending restoration to competency.

This bill, for misdemeanor defendants who have been determined to be incompetent to stand trial, would authorize the court to refer the defendant to the CARE program.
(4) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Vote: majority Appropriation: no Fiscal Committee: yes Local Program: yes THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. The Legislature finds and declares all of the following:
(a) Thousands of Californians are suffering from untreated schizophrenia spectrum and psychotic disorders, leading to risks to their health and safety and increased homelessness, incarceration, hospitalization, conservatorship, and premature death. These individuals, families, and communities deserve a path to care and wellness. (b) With advancements in behavioral health treatments, many people with untreated schizophrenia spectrum and psychotic disorders can stabilize, begin healing, and thrive in community-based settings, with the support of behavioral health services, stabilizing medications, and housing. But too often this comprehensive care is only provided after arrest, conservatorship, or institutionalization. (c) 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 05/24/2022 D2 Page 25 of 35

5/18/22, 4:58 PM Bill Text - SB-1338 Community Assistance, Recovery, and Empowerment (CARE) Court Program. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB1338 3/12 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) Court Program. (d) Self-determination and civil liberties are important California values that can be advanced and protected for individuals with these untreated severe mental illnesses and without current capacity for medical decisionmaking, with the establishment of a new CARE Supporter role, in addition to legal counsel, for CARE proceedings. (e) California continues to act with urgency to expand behavioral health services and to increase housing choices and end homelessness for all Californians. CARE provides a vital solution for some of the most ill and most vulnerable Californians.

SEC. 2. Section 1374.723 is added to the Health and Safety Code, to read:
1374.723. (a) A health care service plan contract issued, amended, renewed, or delivered on or after July 1, 2023, that covers hospital, medical, or surgical expenses shall cover the cost of developing an evaluation pursuant to Section 5977 of the Welfare and Institutions Code and the provision of all health care services for an enrollee when required or recommended for the enrollee pursuant to a care plan approved by a court in accordance with the court’s authority under Sections 5977 and 5982 of the Welfare and Institutions Code. (b) (1) A health care service plan shall not require prior authorization for services provided pursuant to a care plan approved by a court under the CARE program.
(2) A health care service plan may conduct a postclaim review to determine appropriate payment of a claim. Payment for services subject to this section may be denied only if the health care service plan reasonably determines the enrollee was not enrolled with the plan at the time the services were rendered, the services were never performed, or the services were not provided by a health care provider appropriately licensed or authorized to provide the services. (3) Notwithstanding paragraph (1), a health care service plan may require prior authorization for services as permitted by the department pursuant to subdivision (e). (c) (1) A health care service plan shall provide for reimbursement of services provided to an enrollee pursuant to this section at the greater of either of the following amounts:
(A) The health plan’s contracted rate with the provider. (B) The fee-for-service or case reimbursement rate paid in the Medi-Cal program for the same or similar services, including prescription drugs, as identified by the State Department of Health Care Services. (2) A health care service plan shall provide reimbursement for services provided pursuant to this section in compliance with the requirements for timely payment of claims, as required by this chapter. (d) Services provided to an enrollee pursuant to a CARE plan shall not be subject to copayment, coinsurance, deductible, or any other form of cost sharing. An individual or entity shall not bill the enrollee or subscriber, nor seek reimbursement from the enrollee or subscriber, for services provided pursuant to a CARE plan. (e) No later than July 1, 2023, the director of the Department of Managed Health Care may issue guidance to health care service plans regarding compliance with this section. This guidance shall not be subject to the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code). Guidance issued pursuant to this subdivision shall be effective only until the director adopts regulations pursuant to the Administrative Procedure Act.
(f) This section does not apply to Medi-Cal managed care contracts entered pursuant to Chapter 7 (commencing with Section 14000), Chapter 8 (commencing with Section 14200), or Chapter 8.75 (commencing with Section 14591) of Part 3 of Division 9 of the Welfare and Institutions Code, between the State Department of Health Care Services and a health care service plan for enrolled Medi-Cal beneficiaries. (g) This section shall become operative on July 1, 2023.

SEC. 3. Section 1370.01 of the Penal Code is amended to read:
1370.01. (a) If the defendant is found mentally competent, the criminal process shall resume, and the trial on the offense charged or hearing on the alleged violation shall proceed. (b) If the defendant is found mentally incompetent, the trial, judgment, or hearing on the alleged violation shall be suspended and the court may do either of the following:
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5/18/22, 4:58 PM Bill Text - SB-1338 Community Assistance, Recovery, and Empowerment (CARE) Court Program. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB1338 4/12 (1) (A) Conduct a hearing, pursuant to Chapter 2.8A (commencing with Section 1001.35) of Title 6, and, if the court deems the defendant eligible, grant diversion pursuant to Section 1001.36 for a period not to exceed one year from the date the individual is accepted into diversion or the maximum term of imprisonment provided by law for the most serious offense charged in the misdemeanor complaint, whichever is shorter. (B) If the court opts to conduct a hearing pursuant to this paragraph, the hearing shall be held no later than 30 days after the finding of incompetence. If the hearing is delayed beyond 30 days, the court shall order the defendant to be released on their own recognizance pending the hearing. (C) If the defendant performs satisfactorily on diversion pursuant to this section, at the end of the period of diversion, the court shall dismiss the criminal charges that were the subject of the criminal proceedings at the time of the initial diversion.
(D) If the court finds the defendant ineligible for diversion based on the circumstances set forth in subdivision (b) or (d) of Section 1001.36, the court may, after notice to the defendant, defense counsel, and the prosecution, hold a hearing to determine whether to do any of the following:
(i) Order modification of the treatment plan in accordance with a recommendation from the treatment provider. (ii) Refer the defendant to assisted outpatient treatment pursuant to Section 5346 of the Welfare and Institutions Code. A referral to assisted outpatient treatment may only occur in a county where services are available pursuant to Section 5348 of the Welfare and Institutions Code, and the agency agrees to accept responsibility for treatment of the defendant. A hearing to determine eligibility for assisted outpatient treatment shall be held within 45 days after the date of the referral. If the hearing is delayed beyond 45 days, the court shall order the defendant, if confined in county jail, to be released on their own recognizance pending that hearing. If the defendant is accepted into assisted outpatient treatment, the charges shall be dismissed pursuant to Section 1385. (iii) Refer the defendant to the county conservatorship investigator in the county of commitment for possible conservatorship proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code. A defendant shall only be referred to the conservatorship investigator if, based on the opinion of a qualified mental health expert, the defendant appears to be gravely disabled, as defined in subparagraph (A) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institution Code. Any hearings required in the conservatorship proceedings shall be held in the superior court in the county of commitment.

The court shall transmit a copy of the order directing initiation of conservatorship proceedings to the county mental health director or the director’s designee and shall notify the county mental health director or their designee of the outcome of the proceedings. Before establishing a conservatorship, the public guardian shall investigate all available alternatives to conservatorship pursuant to Section 5354 of the Welfare and Institutions Code. If a petition is not filed within 60 days of the referral, the court shall order the defendant, if confined in county jail, to be released on their own recognizance pending conservatorship proceedings. If the outcome of the conservatorship proceedings results in the establishment of conservatorship, the charges shall be dismissed pursuant to Section 1385. (iv) Refer the defendant to the CARE program pursuant to Section 5978 of the Welfare and Institutions Code. A hearing to determine eligibility for CARE shall be held within 14 days after the date of the referral. If the hearing is delayed beyond 14 days, the court shall order the defendant, if confined in county jail, to be released on their own recognizance pending that hearing. If the defendant successfully completes CARE, the charges shall be dismissed pursuant to Section 1385.
(2) Dismiss the charges pursuant to Section 1385. If the criminal action is dismissed, the court shall transmit a copy of the order of dismissal to the county mental health director or the director’s designee. (c) If the defendant is found mentally incompetent and is on a grant of probation for a misdemeanor offense, the court shall dismiss the pending revocation matter and may return the defendant to supervision. If the revocation matter is dismissed pursuant to this subdivision, the court may modify the terms and conditions of supervision to include appropriate mental health treatment.
(d) It is the intent of the Legislature that a defendant subject to the terms of this section receive mental health treatment in a treatment facility and not a jail. A term of four days will be deemed to have been served for every two days spent in actual custody against the maximum term of diversion. A defendant not in actual custody shall otherwise receive day for day credit against the term of diversion from the date the defendant is accepted into diversion. “Actual custody” has the same meaning as in Section 4019. (e) This section shall apply only as provided in subdivision (b) of Section 1367.

SEC. 4. Part 8 (commencing with Section 5970) is added to Division 5 of the Welfare and Institutions Code, to read:

PART 8. The Community Assistance, Recovery, and Empowerment Act05/24/2022 D2 Page 27 of 35

5/18/22, 4:58 PM Bill Text - SB-1338 Community Assistance, Recovery, and Empowerment (CARE) Court Program. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB1338 5/12 CHAPTER 1. General Provisions
5970. This part shall be known, and may be cited, as Community Assistance, Recovery, and Empowerment (CARE) Act.
5971. Unless the context otherwise requires, the following definitions shall govern the construction of this part. (a) “Court-ordered evaluation” means an evaluation ordered by a superior court pursuant to Section 5977. (b) “CARE plan” means an individualized, clinically appropriate range of behavioral health related services and supports provided by a county behavioral health agency, including, but not limited to, clinical care, stabilization medications, and a housing plan, pursuant to Section 5982. (c) “Graduation plan” means a plan that is developed by the person who is the subject of the petition, with assistance from a supporter, as needed, and the person’s treatment team. The graduation plan shall include a strategy to support a successful transition out of court jurisdiction and may include a psychiatric advance directive. The graduation plan may also include, but is not limited to, on-going behavioral health services, including medication management, peer support services, housing and related support services, vocational or educational services, and psychoeducation.
(d) “Psychiatric advance directive” means a legal document that allows a person with mental illness to protect their autonomy and ability to self-direct care by documenting their preferences for treatment in advance of a mental health crisis.
(e) “Respondent” means the person who is subject to the petition for CARE court proceedings. (f) “Supporter” means an adult, trained pursuant to Chapter 4 (commencing with Section 5980), who assists the person who is the subject of the petition, which may include supporting the person to understand, make, communicate, implement, or act on their own life decisions.

CHAPTER 2. Process
5972. A court may order a respondent to participate in CARE proceedings if the court finds, by clear and convincing evidence, that the facts stated in the petition are true and establish that the requisite criteria set forth in this section are met, including all of the following:
(a) The person is 18 years of age or older.
(b) The person has a diagnosis of schizophrenia spectrum or other psychotic disorder, as defined in the most current version of the Diagnostic and Statistical Manual of Mental Disorders. (c) The person is not clinically stabilized in on-going treatment with the county behavioral health agency. (d) The person currently lacks medical decisionmaking capacity. 5973. Proceedings under this part may be commenced in any of the following:
(a) The county in which the respondent resides.
(b) The county where the respondent is found.
(c) The county where the respondent is facing criminal or civil proceedings. 5974. The following persons may file a petition to initiate CARE proceedings:
(a) A person 18 years of age or older with whom the respondent resides. (b) A spouse, parent, sibling, or adult child of the respondent. (c) The director of a hospital, or their designee, in which the respondent is hospitalized, including hospitalization pursuant to Section 5150 or 5250.
(d) The director of a public or charitable organization, agency, or home, or their designee, currently or previously providing behavioral health services to the respondent or in whose institution the respondent resides. (e) A qualified behavioral health professional, or their designee, who is, or has been, either supervising the treatment of, or treating the respondent for a mental illness.
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5/18/22, 4:58 PM Bill Text - SB-1338 Community Assistance, Recovery, and Empowerment (CARE) Court Program. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB1338 6/12 (f) A first responder, including a peace officer, firefighter, paramedic, emergency medical technician, mobile crisis response worker, or homeless outreach worker.
(g) The public guardian or public conservator, or their designee, of the county in which the respondent is present or reasonably believed to be present.
(h) The director of a county behavioral health agency, or their designee, of the county in which the respondent is present or reasonably believed to be present.
5975. The petition shall be signed under the penalty of perjury and contain all of the following:
(a) The name of the court to which it is addressed.
(b) The title of the proceeding.
(c) The name, age, and address, if any, of the respondent. (d) The code section and the subdivision under which the proceedings are instituted. (e) The petitioner’s relationship with the respondent.
(f) Facts that support the petitioner’s belief that the respondent meets the CARE criterion, including identification of the county behavioral health agency with responsibility for providing care to the respondent, if known. (g) Either of the following:
(1) An affirmation or affidavit of a qualified behavioral health professional, stating that the qualified behavioral health professional or their designee has examined the respondent within three months of the submission of the petition, or has made appropriate attempts, but has not been successful, in eliciting the cooperation of the respondent to submit to an examination, and that the qualified behavioral health professional had determined that, based on an examination or a review of records and collateral interviews, the respondent meets, or is likely to meet, the diagnostic criteria for CARE proceedings.
(2) Evidence that the respondent was detained for intensive treatment pursuant to Article 4 (commencing with Section 5250) of Chapter 2 of Part 1 within the previous 90 days. 5976. The respondent shall have all of the following rights:
(a) To receive notice of the hearings.
(b) To receive a copy of the court-ordered evaluation.
(c) To be represented by counsel at all stages of a proceeding commenced under this chapter. (d) To a supporter, as described in Section 5982.
(e) To be present at the hearing unless the respondent waives the right to be present or the court makes a finding described in Section 5977 or appears remotely.
(f) To present evidence.
(g) To call witnesses.
(h) To cross-examine witnesses.
(i) To appeal decisions, and to be informed of the right to appeal. 5977. (a) (1) Upon receipt by the court of a petition, the court shall set an initial hearing not later than 14 days from the date the petition is filed with the court.
(2) The court shall appoint counsel and a supporter within five calendar days of filing. (3) The petitioner shall be responsible for providing notice of the hearing to the respondent, the respondent’s counsel and supporter, and the county behavioral health agency in the county where the respondent resides. (b) (1) At the initial hearing, which shall occur 14 days after the petition is filed with the court, the court shall determine if the respondent meets the CARE criteria.
(2) All of the following shall be required for the hearing:
05/24/2022 D2 Page 29 of 35

5/18/22, 4:58 PM Bill Text - SB-1338 Community Assistance, Recovery, and Empowerment (CARE) Court Program. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB1338 7/12 (A) The petitioner shall be present. If the petitioner is not present, the matter shall be dismissed. (B) The respondent may waive their appearance and appear through their counsel. If the respondent does not waive their appearance and does not appear at the hearing, and appropriate attempts to elicit the attendance of the respondent have failed, the court may conduct the hearing in the respondent’s absence. If the hearing is conducted without the respondent present, the court shall set forth the factual basis for doing so. (C) A representative from the county behavioral health agency shall be present. (D) The supporter shall be allowed to be present.
(3) (A) The court shall determine if the petitioner has presented prima facie evidence that respondent meets the CARE criteria.
(B) If the court finds that the petitioner has not presented sufficient prima facie evidence, the court shall dismiss the case without prejudice, unless the court makes a finding on the record that the petitioner’s filing was not in good faith.
(C) If the court finds that the petitioner has submitted prima facie evidence that the respondent meets the CARE criteria, the court shall order the county behavioral health agency to work with the respondent and the respondent’s counsel and supporter to determine if the respondent shall engage in a treatment plan. A case management conference shall be set for no later than 14 days after the court makes its finding. (c) (1) At the case management conference hearing, the court shall determine if a settlement agreement may be entered into by the parties.
(2) The case management conference may be continued for up to 14 days upon stipulation of the respondent and the county behavioral health agency.
(3) The court’s findings that a settlement agreement may be entered into by the parties shall require a recitation of all terms and conditions on the record.
(4) If the court finds that parties have agreed to a settlement agreement, and the court agrees with the terms of the agreement, the court shall stay the matter and set a progress hearing for 60 days. (5) (A) If the court finds that the parties are not likely to reach a settlement agreement, the court shall order a clinical evaluation of the respondent unless the parties stipulate otherwise. (B) The court shall order the county behavioral health agency to conduct the evaluation unless the parties stipulate otherwise.
(C) The court shall set a hearing to review the evaluation within 14 days. (D) The evaluation shall be confidential pursuant to Section 5200. (d) (1) At the evaluation review hearing, the court shall review the evaluation and any other evidence from all interested individuals, including, but not limited to, evidence from the petitioner, the county behavioral health agency, the respondent, and the supporter.
(2) The hearing may be continued a maximum of 14 days upon stipulation of the respondent and the county behavioral health agency.
(3) (A) If the court finds that the evaluation and other evidence demonstrate by clear and convincing evidence that the respondent meets the CARE criteria, the court shall order the county behavioral health agency, the respondent, and the respondent’s counsel and supporter to jointly develop a CARE plan. (B) The respondent and the county behavioral health agency may request appellate writ review of the order to develop a CARE plan.
(C) A hearing to approve the CARE plan shall be set not more than 14 days from the date of the order to develop a CARE plan.
(4) If the court finds that the evidence does not, by clear and convincing evidence, support that the respondent meets the CARE criteria, the court shall dismiss the petition without prejudice. (e) (1) The plan approval and implementation hearing to approve the CARE plan shall occur within 14 days after date of the order to develop a CARE plan.
05/24/2022 D2 Page 30 of 35

5/18/22, 4:58 PM Bill Text - SB-1338 Community Assistance, Recovery, and Empowerment (CARE) Court Program. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB1338 8/12 (2) The CARE plan may be presented by both or either of the parties. After presentation, the court may do any of the following:
(A) Approve the plan as presented and make any orders necessary for the implementation of the plan. (B) Order the plan modified to better meet the needs of the parties, approve the plan as modified, within the scope of the county behavioral health agency’s services, and make any orders necessary for the implementation of the plan. (C) Reject the plan and order the parties to continue to work on the plan. The court shall set a subsequent hearing for no more than 14 days after rejecting the proposed plan. (3) (A) If the court rejects the plan or if there is no CARE plan because the parties have not had sufficient time to complete it, the court may grant a continuance for no more than 14 days. (B) At the subsequent CARE plan approval and implementation hearing, the court shall review the CARE plan, at which time the court may do either of the following:
(i) Approve the plan as presented and make any orders necessary to implement the plan. (ii) Order the plan modified, within the scope of the county behavioral health agency’s services, to better meet the needs of the parties, approve the plan as modified, and make any orders necessary to implement the plan. (4) Court approval of the CARE plan begins the one-year CARE program timeline. (f) The court shall schedule a status conference for 60 days after the approval of the CARE plan to review the progress of the CARE plan’s implementation.
(g) (1) The 60-day status conference shall be followed by regular status conferences set by the court, at least every 180 days.
(2) Intermittent lapses or setbacks experienced by the respondent shall be reviewed by the court. (h) (1) In the 11th month of the program timeline, the court shall hold a one-year status hearing. At that hearing, the court shall determine whether to graduate the respondent from the program with a graduation plan or reappoint the respondent to the program for another term, not to exceed one year. (2) The one-year status hearing shall be an evidentiary hearing. All parties shall be permitted to speak, present evidence, and the court shall hear recommendations from the county behavioral health agency. (3) If the respondent has successfully completed participation in the one-year CARE program, the respondent shall not be reappointed to the program.
(4) At the one-year status hearing, the respondent may request graduation or reappointment to the CARE program.

If the respondent elects to accept voluntary reappointment to the program, the respondent may request any amount of time, up to and including one additional year, to be reappointed to the CARE program. (5) If the respondent requests to be graduated from, or times out of, the program, the court shall officially graduate the respondent and terminate its jurisdiction with a graduation plan. (6) Upon completion, for a respondent who was transferred from another court, the referring court shall be given notice of completion and the underlying matter shall be terminated. (i) The hearings described in this section shall occur in-person unless the court, in its discretion, determines that a party may appear remotely through the use of remote technology. (j) Consistent with its constitutional rulemaking authority, the Judicial Council shall adopt rules to implement the policies and provisions in this section to promote statewide consistency, including, but not limited to, what is included in the petition form packet, the clerk’s review of the petition, and the process by which counsel and supporter will be appointed.
5978. (a) A court may refer an individual from assisted outpatient treatment and conservatorship proceedings to CARE proceedings.
(b) A court may refer an individual from misdemeanor proceedings pursuant to Section 1370.01 of the Penal Code.

CHAPTER 3. Accountability
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5/18/22, 4:58 PM Bill Text - SB-1338 Community Assistance, Recovery, and Empowerment (CARE) Court Program. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB1338 9/12 5979. (a) If, at any time during the proceedings, the court determines by a preponderance of evidence that the respondent is not participating in CARE proceedings, after the respondent receives notice, or is failing to comply with their CARE plan, the court may terminate the respondent’s participation in the CARE program. The court may utilize existing legal authority pursuant to Article 4 (commencing with Section 5200) of Chapter 2 of Part 1, to ensure the respondent’s safety. The subsequent proceedings may use the CARE proceedings as a factual presumption that no suitable community alternatives are available to treat the individual. (b) If, at any time during the proceedings, the court finds that the county is not complying with court orders, the court may fine the county up to one thousand dollars ($1,000) per day for noncompliance. If a county is found to be persistently noncompliant, the court may appoint a receiver to secure court-ordered care for the respondent at the county’s cost.
(c) Either the respondent or the county behavioral health agency may appeal an adverse court determination to the appellate division of the superior court.

CHAPTER 4. The Supporter
5980. (a) Subject to appropriation, the California Department of Aging shall administer the CARE Supporter program, which shall make available a trained supporter to the respondent. The department shall train the supporter on supported decisionmaking with individuals who have behavioral health conditions and on the use of psychiatric advance directives, with support and input from peers, family members, disability groups, providers, and other relevant stakeholders. The department may enter into a technical assistance and training agreement to provide trainings either directly to supporters or to the contracted entities who will be responsible for hiring and matching supporters to respondents. The CARE Supporter program contracts shall include labor standards. (b) The CARE Supporter program shall be designed to do all of the following:
(1) Offer the respondent a flexible and culturally responsive way to maintain autonomy and decisionmaking authority over their own life by developing and maintaining voluntary supports to assist them in understanding, making, communicating, and implementing their own informed choices. (2) Strengthen the respondent’s capacity and prevent or remove the need to use more restrictive protective mechanisms, such as conservatorship.
(3) Assist the respondent with understanding, making, and communicating decisions and expressing preferences throughout the CARE court process.
(c) If the respondent chooses to have a supporter who was not trained pursuant to this section, that person may serve as a supporter without compensation.
5981. (a) Notwithstanding any other provision of this part, the respondent may have their supporter present, if available, in any meeting, judicial proceeding, or communication related to any of the following:
(1) An evaluation.
(2) Creation of a CARE plan.
(3) Establishing a psychiatric advance directive.
(4) Development of a graduation plan.
(b) A supporter shall do all the following, to the best of their ability and to the extent reasonably possible:
(1) Support the will and preferences of the respondent. (2) Respect the values, beliefs, and preferences of the respondent. (3) Act honestly, diligently, and in good faith.
(4) Avoid, to the greatest extent possible, and disclose, minimize, and manage, conflicts of interest. (c) Unless explicitly authorized, a supporter shall not do any of the following:
(1) Make decisions for, or on behalf of, the respondent, except when necessary to prevent imminent bodily harm or injury.
(2) Sign documents on behalf of the respondent.
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5/18/22, 4:58 PM Bill Text - SB-1338 Community Assistance, Recovery, and Empowerment (CARE) Court Program. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB1338 10/12 (3) Substitute their own judgment for the decision or preference of the respondent. (d) In addition to the obligations in this section, a supporter shall be bound by all existing obligations and prohibitions otherwise applicable by law that protect people with disabilities and the elderly from fraud, abuse, neglect, coercion, or mistreatment. This section does not limit a supporter’s civil or criminal liability for prohibited conduct against the respondent, including liability for fraud, abuse, neglect, coercion, or mistreatment, including liability under the Elder Abuse and Dependent Adult Civil Protection Act (Chapter 11 (commencing with Section 15600) of Part 3 of Division 9), including, but not limited to, Sections 15656 and 15657.

CHAPTER 5. CARE Plan
5982. The CARE plan shall be created by the respondent, their supporter and counsel, and the county behavioral health agency. The plan shall include all of the following components:
(a) (1) Behavioral health treatment, which includes medically necessary mental health or substance use disorder treatment, or both.
(2) If the respondent is enrolled in the Medi-Cal program, the county shall provide all medically necessary specialty mental health and substance use disorder treatment services, as those services are defined in the Medi-Cal program and consistent with their responsibilities thereunder, to a respondent when included in their court ordered CARE plan.

Specialty mental health services and substance use disorder treatment services may be included in the CARE plan if they are determined to be medically necessary by the clinical evaluation. If the respondent is an enrollee in a health care service plan, other than a Medi-Cal managed care plan, the services shall be provided and reimbursed pursuant to Section 1374.723 of the Health and Safety Code.
(3) Counties are encouraged to employ medically necessary, evidence-based practices and promising practices supported with community-defined evidence, which may include assertive community treatment, peer support services, and psychoeducation.
(b) (1) As part of the provision of behavioral health care, the care plan may include medically necessary stabilization medications, including antipsychotic medications. If medically necessary, medications may be provided as long-acting injections.
(2) Court ordered stabilization medications shall not be forcibly administered, absent a separate order by the court pursuant to Sections 5332 to 5336, inclusive.
(3) Medically necessary stabilization medications may be prescribed by the treating licensed behavioral health care provider and medication support services shall be offered. The respondent, in the development and on-going maintenance of the plan, shall work with their behavioral health care provider and their supporter to address medication concerns and make changes to the treatment plan. (c) A housing plan that describes the housing needs of the respondent and the housing resources that will be considered in support of an appropriate housing placement. The respondent shall have diverse housing options, including, but not limited to, housing in clinically enhanced interim or bridge housing, licensed adult and senior care settings, and supportive housing. Counties may offer appropriate housing placements in the region as early as feasible in the engagement process. This section does not allow the court to order housing or to require the county to provide housing.

CHAPTER 6. Technical Assistance and Administration
5983. (a) Subject to appropriation, the State Department of Health Care Services shall provide technical assistance to county behavioral health agencies to support the implementation of this part, including trainings regarding the CARE model and statute and data collection.
(b) Subject to appropriation, the State Department of Health Care Services shall administer the Behavioral Health Bridge Housing program to provide funding for clinically enhanced bridge housing settings to serve individuals who are experiencing homelessness and have behavioral health conditions. Individuals who are CARE program participants shall be prioritized for any appropriate bridge housing funded by the Behavioral Health Bridge Housing program. (c) Subject to appropriation, the Judicial Council shall provide technical assistance to judges to support the implementation of this part, including trainings regarding the CARE model and statutes, working with the supporter, best practices, and evidence-based models of care for people with severe behavioral health conditions. 5984. (a) For purposes of implementing this part, the California Health and Human Services Agency, the State Department of Health Care Services, and the California Department of Aging may enter into exclusive or nonexclusive05/24/2022 D2 Page 33 of 35

5/18/22, 4:58 PM Bill Text - SB-1338 Community Assistance, Recovery, and Empowerment (CARE) Court Program. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB1338 11/12 contracts, or amend existing contracts, on a bid or negotiated basis. Contracts entered into or amended pursuant to this part shall be exempt from Chapter 6 (commencing with Section 14825) of Part 5.5 of Division 3 of Title 2 of the Government Code, Section 19130 of the Government Code, Part 2 (commencing with Section 10100) of Division 2 of the Public Contract Code, and the State Administrative Manual, and shall be exempt from the review or approval of any division of the Department of General Services.
(b) Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, the California Health and Human Services Agency, the State Department of Health Care Services, and the California Department of Aging may implement, interpret, or make specific this part, in whole or in part, by means of plan letters, information notices, provider bulletins, or other similar instructions, without taking any further regulatory action.

SEC. 5. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution for certain costs that may be incurred by a local agency or school district because, in that regard, this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.

SECTION 1.Part 1.3 (commencing with Section 5565) is added to Division 5 of the Welfare and Institutions Code, to read:

1.3.Community Assistance, Recovery, and Empowerment (CARE) Court Program 5565.(a)The Community Assistance, Recovery, and Empowerment (CARE) Court Program is hereby established to connect a person struggling with untreated mental illness and substance use disorders with a court-ordered CARE plan.
(b)(1)A court may order a person who is the subject of a petition filed pursuant to this section to obtain treatment and services under a CARE plan if the court finds that the facts stated in the verified petition are true and established and the criteria set in this section are met, including, but not limited to, each of the following:
(A)The person is 18 years of age or older.
(B)The person is suffering from a mental illness and a substance use disorder. (C)The person lacks medical decisionmaking capacity.
(2)A court may order the person to have a CARE plan for up to 12 months, and may renew the plan for up to another 12 months. The court shall conduct periodic review hearings. (3)A person who is ordered under a CARE plan who does not complete the plan may be referred to conservatorship pursuant to Chapter 3 (commencing with Section 5350) of Part 1, and it shall be presumed that there are no suitable alternatives to conservatorship available to the person (c)A petition for an order authorizing a CARE plan may be filed by a family member, county representative, community-based social services provider, behavioral health provider, or first responder in the superior court in the county in which the person who is the subject of the petition is present or reasonably believed to be present.
(d)(1)A CARE plan shall be managed by a CARE team in the community, and may include clinically prescribed and individualized interventions with several supportive services, including, but not limited to, medication and housing.
(2)The CARE team shall consist of clinical team members, a public defender, and a support person to help make self-directed care decisions.
(e)(1)Each county shall participate in providing services under the program. (2)The court may order sanctions or appoint an agent to ensure the county provides services under the program.

SEC. 2.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.05/24/2022 D2 Page 34 of 35

5/18/22, 4:58 PM Bill Text - SB-1338 Community Assistance, Recovery, and Empowerment (CARE) Court Program. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB1338 12/1205/24/2022 D2 Page 35 of 35

From:Corinna Contreras
To:Kathy Valdez; Patrick Johnson
Subject:Council meeting May 24, 2022 D2 SB 1338 Resolution Date:Tuesday, May 24, 2022 11:45:13 AM
Attachments:HRW Opposition (CARE) Court SB 1338.pdf
Hello,
I have attached documents to be included in the public record for Discussion Item 2.

These documents are:
1) Human Right's Watch Opposition Letter
The following web articles:
1)
https://www.disabilityrightsca.org/latest-news/disability-rights-california-coalitions-letter-in- opposition-to-care-court
2)
https://www.aclusocal.org/en/press-releases/disability-civil-rights-groups-say-fundamental- questions-must-be-answered-regarding
3)
https://www.disabilityrightsca.org/latest-news/disability-rights-california-stands-united-with- individuals-experiencing-mental-health
Thank you.

ADD TO PACKET
D2

April 12, 2022

Senator Tom Umberg
Senator Susan Talamantes Eggman
California State Senate
Sacramento, Ca. 95814

Re: Human Rights Watch’s Opposition to CARE
Court (SB 1338)

Dear Senators Umberg and Eggman:

Human Rights Watch has carefully reviewed SB 13381 and the proposed framework for the Community Assistance, Recovery and Empowerment (CARE) Court created by CalHHS,2 and must respectfully voice our strong opposition. CARE Court promotes a system of involuntary, coerced treatment, enforced by an expanded judicial infrastructure, that will, in practice, simply remove unhoused people with perceived mental health conditions from the public eye without effectively addressing those mental health conditions and without meeting the urgent need for housing. We urge you to reject this bill and instead to take a more holistic, rights- respecting approach to address the lack of resources for autonomy- affirming treatment options and affordable housing.

CARE Court proponents claim it will increase up-stream diversion from the criminal legal and conservatorship systems by allowing a wide range of actors to refer people with schizophrenia and other psychotic disorders to the jurisdiction of the courts without an arrest or hospitalization. In fact, the bill creates a new pathway for government officials and family members to place people under state control and take away their autonomy and liberty.3 It applies generally to those the bill describes as having a “schizophrenia spectrum or other psychotic disorder” and specifically targets unhoused people.4 It seems aimed at facilitating removing unhoused people from public view without actually providing housing and services that will help to resolve homelessness. Given the racial

1 California SB 1338, “Community Assistance, Recovery, and Empowerment (CARE) Court Program (Umberg, Eggman),” 2022, https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220SB1338 (accessed April 12, 2022). 2 California Health & Human Services Agency, “CARE Court: A New Framework for Community Assistance, Recovery & Empowerment,” March 2022, https://www.chhs.ca.gov/wp-content/uploads/2022/03/CARE-Court-Framework_web.pdf (accessed April 12, 2022).
3 California SB 1338, “Community Assistance, Recovery, and Empowerment (CARE) Court Program (Umberg, Eggman),” 2022, https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220SB1338 . 4 Marisa Lagos, “Gov. Newsom on His Plan to Tackle Mental Health, Homelessness with ‘CARE Courts’,”KQED, March 16, 2022, https://www.kqed.org/forum/2010101888316/gov-newsom-on-his-new-plan-to-tackle-mental-health-homelessness-with-care- courts (accessed April 12, 2022).

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Akwasi Aidoo
Lishan Aklog
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Andrew Zolli

2 demographics of California’s homeless population5, and the historic over-diagnosing of Black and Latino people with schizophrenia,6 this plan is likely to place many, disproportionately Black and brown, people under state control.

CARE Court is Coerced Treatment

Proponents of the plan describe CARE Court in misleading ways as “preserving self- determination” and “self-sufficiency,” and “empower[ing].”7 But CARE Court creates a state- imposed system of coerced, involuntary treatment. The proposed legislation authorizes judges to order a person to submit to treatment under a CARE plan.8 That treatment may include an order to take a given medication, including long-acting injections, and a housing plan.9 That housing plan could include a variety of interim housing or shelter options that may be unacceptable to an individual and unsuited to their unique needs.10

A person who fails to obey court orders for treatment, medication, and housing may be referred to conservatorship, which would potentially strip that person of their legal capacity and personal autonomy, subjecting them to forcible medical treatment and medication, loss of personal liberty, and removal of power to make decisions over the conduct of their own lives.11 Indeed, the court may use failure to comply with their court-ordered treatment, “as a factual presumption that no suitable community alternatives are available to treat the individual,” paving the way for detention and conservatorship.12 In practical effect, the mandatory care plans are simply pathways to the even stricter system of control through conservatorship.

This approach not only robs individuals of dignity and autonomy but is also coercive and likely ineffective.13 Studies of coercive mental health treatment have generally not shown

5 Los Angeles Homeless Services Authority, “Report and Recommendations of the Ad Hoc Committee on Black People Experiencing Homelessness,” December 2018, https://www.lahsa.org/documents?id=2823-report-and-recommendations-of- the-ad-hoc-committee-on-black-people-experiencing-homelessness (accessed April 12, 2022). 6 Charles M. Olbert, Arundati Nagendra, and Benjamin Buck, “Meta-analysis of Black vs. White racial disparity in schizophrenia diagnosis in the United States: Do structured assessments attenuate racial disparities?” Journal of Abnormal Psychology 127(1) (2018): 104-115, accessed April 12, 2022, doi: 10.1037/abn0000309; Robert C. Schwartz and David M. Blankenship, “Racial disparities in psychotic disorder diagnosis: A review of empirical literature,” World Journal of Psyciatry 4 (2014): 133-140, accessed April 12, 20220, doi: 10.5498/wjp.v4.i4.133.
7 “CARE (Community Assistance, Recovery and Empowerment) Court,” California Health & Human Services Agency, March 14, 2022, Slides 5, 10 and 20, https://www.chhs.ca.gov/wp-content/uploads/2022/03/CARE-Court-Stakeholder-Slides- 20220314.pdf (accessed April 12, 2022); Marisa Lagos, “Gov. Newsom on His Plan to Tackle Mental Health, Homelessness with ‘CARE Courts’,” KQED, March 16, 2022, https://www.kqed.org/forum/2010101888316/gov-newsom-on-his-new-plan-to-tackle- mental-health-homelessness-with-care-courts (accessed April 12, 2022). 8 SB 1338, Section 59–82 (a)-(b).
9 SB 1338, Section, 5982.
10 SB 1338, Section 5982(c); “CARE (Community Assistance, Recovery and Empowerment) Court.” The DHHS presentation discusses a range of housing possibilities including “interim or bridge housing,” which in common usage means temporary shelter.
11 SB 1338, Section 5979(a); California Welfare and Institutions Code Section 5350—5372, https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=WIC&sectionNum=5357 (accessed April 12, 2022).
12 SB 1338, Section 5979(a).
13 Sashidharan, S. P., Mezzina, R., & Puras, D., “Reducing coercion in mental healthcare,” Epidemiology and psychiatric sciences, 28(6) (2019): 605–612, accessed April 12, 2022, https://doi.org/10.1017/S2045796019000350 (“Available research does not suggest that coercive intervention in mental health care “are clinically effective, improve patient safety or result in better clinical or social outcomes.”).

3 positive outcomes.14 Evidence does not support the conclusion that involuntary outpatient treatment is more effective than intensive voluntary outpatient treatment and, indeed, shows that involuntary, coercive treatment is harmful.15

Coerced Treatment Violates Human Rights

Under international human rights law, all people have the right to “the highest attainable standard of physical and mental health.”16 Free and informed consent, including the right to refuse treatment, is a core element of that right to health.17 Having a “substitute” decision- maker, including a judge, or even a “supporter,” make orders for health care can deny a person with disabilities their right to legal capacity and infringe on their personal autonomy.18

The Convention on the Rights of Persons with Disabilities establishes the obligation to “holistically examine all areas of law to ensure that the right of persons with disabilities to legal capacity is not restricted on an unequal basis with others. Historically, persons with disabilities have been denied their right to legal capacity in many areas in a discriminatory manner under substitute decision-making regimes such as guardianship, conservatorship and mental health laws that permit forced treatment.”19 The US has signed but not yet ratified this treaty, which means it is obligated to refrain from establishing policies and legislation that will undermine the purpose and object of the treaty, like creating provisions that mandate long-term substitute decision-making schemes like conservatorship or court- ordered treatment plans.

The World Health Organization has developed a new model that harmonizes mental health services and practices with international human rights law and has criticized practices promoting involuntary mental health treatments as leading to violence and abuse, rather than recovery, which should be the core basis of mental health services.20 Recovery means

14 Sashidharan, S. P., Mezzina, R., & Puras, D., “Reducing coercion in mental healthcare,” Epidemiology and psychiatric sciences, 28(6) (2019): 605–612, https://doi.org/10.1017/S2045796019000350 (accessed April 12, 2022); Richard M. Ryan, Martin F. Lynch, Maarten Vansteenkiste, Edward L. Deci, “Motivation and Autonomy in Counseling, Psychotherapy, and Behavior Change: A Look at Theory and Practice,” Invited Integrative Review (2011), https://www.apa.org/education/ce/motivation-autonomy.pdf (accessed April 12, 2022); McLaughlin, P., Giacco, D., & Priebe, S., 2016, “Use of Coercive Measures during Involuntary Psychiatric Admission and Treatment Outcomes: Data from a Prospective Study across 10 European Countries,” PloS one, 11(12), https://doi.org/10.1371/journal.pone.0168720 (“All coercive measures are associated with patients staying longer in hospital, and seclusion significantly so, and this associati on is not fully explained by coerced patients being more unwell at admission.”). 15 Joseph P. Morrissey, Ph.D., et al., “Outpatient Commitment and Its Alternatives: Questions Yet to Be Answered,” Psychiatric Services (2014): 812 at 814 (2014); S.P. Sashidharan, Ph.D., et al., “Reducing Coercion in Mental Healthcare,” Epidemiology and Psychiatric Sciences 28 (2019): 605-612.
16 International Covenant on Economic, Social and Cultural Rights, (“ICESCR”), adopted December 16, 1966, entered into force January 3, 1976, Art. 12(1), https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx . 17 Human Rights Council; United Nations, General Assembly, “Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health,” March 28, 2017, https://undocs.org/en/A/HRC/35/21 , para. 63. See also Convention on the Rights of Persons with Disabilities, art. 12 read in conjunction with art. 25; Committee on the Rights of Persons with Disabilities: General comment No. 1 (2014), May 19, 2014, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/031/20/PDF/G1403120.pdf?OpenElement , para. 31, 41. 18 Convention on the Rights of Persons with Disabilities, art. 12; Committee on the Rights of Persons with Disabilities: General comment No. 1 (2014), May 19, 2014, para. 7.
19 Committee on the Rights of Persons with Disabilities: General comment No. 1 (2014), May 19, 2014, para. 7. 20 Freedom from coercion, violence, and abuse. WHO Quality Rights core training: mental health and social services, 2019, https://apps.who.int/iris/bitstream/handle/10665/329582/9789241516730-eng.pdf?sequence=5&isAllowed=y , p. 2, 8, 22.

4 different things for different people but one of its key elements is having control over one´s own mental health treatment, including the possibility of refusing treatment.

To comport with human rights, treatment should be based on the will and preferences of the person concerned, and not defined by some other entity’s conception of their best interest.

Housing or disability status does not rob a person of their right to legal capacity or their personal autonomy, including the right to refuse treatment. In very narrow, exceptional circumstances, where a person poses a serious and imminent risk to themselves or a third party and a qualified healthcare professional has determined they lack capacity to give informed consent to treatment, a brief, temporary period of mandatory treatment may be permissible if strictly clinically necessary for the purpose of returning the person to a place of autonomy in which they can make decisions about their own welfare—and for no longer than that. The process envisioned by the CARE Court plan is far more expansive; by definition, involuntary; and, as discussed below, runs the risk of being abused by self- interested actors. This coerced process leading to “treatment” undermines any healing aim of the proposal.

CARE Court Denies Due Process

The CARE Court proposal authorizes family members, first responders, including police officers or outreach workers, the public guardian, service providers, and the director of the county behavioral health agency, to initiate the process of imposing involuntary treatment by filing a petition with the court.21 These expansive categories of people with the power to embroil another person in court processes and potential loss of autonomy, many of whom lack any expertise in recognition and treatment of mental health conditions, reveals the extreme danger of abuse inherent in this proposal. For example, interpersonal conflicts between family members could result in abusive parents, children, spouses, and siblings using the referral process to expose their relatives to court hearings and potential coerced treatment, housing, and medication.

Law enforcement and outreach workers would have a new tool to threaten unhoused people with referral to the court to pressure them to move from a given area. These state actors could place those who disobeyed their commands into the CARE Court process and under the control of courts. Given the long history of law enforcement using its authority to drive unhoused people from public spaces, a practice that re-traumatizes those people and does nothing to solve homelessness, it is dangerous to provide them with additional powers to do so.22

The legislation does not set meaningful standards to guide judicial discretion and does not delineate procedures for those decisions.23 It establishes a contradictory and unworkable procedure by which a petition may be made on an allegation that a person “lacks medical decision making capacity”24 On a mere showing of “prima facie” evidence that the petition is

21 SB 1338, Section 5974.
22 Chris Herring, “Complaint-Oriented Policing: Regulating Homelessness in Public Space,” American Sociological Review 1-32, (2019),
https://static1.squarespace.com/static/5b391e9cda02bc79baffebb9/t/5d73e7609b56e748f432e358/1567876975179/complai nt-oriented+policing_ASR.pdf.
23 SB 1338, Section, 5972-5978
24 SB 1338, Section 5972.

5 true, the person is then required to enter into settlement discussions with the county behavioral health agency.25 If someone lacks decision-making capacity, they would not be able to enter a settlement agreement voluntarily. Unless the parties stipulate otherwise, failure to enter a settlement agreement results in an evaluation by that same behavioral health agency, which is used to impose a mandatory, court-ordered course of treatment.26 This process is entirely involuntary and coercive. The role of the behavioral health agency poses a great potential for conflicts of interest, as they will presumably be funded to carry out the Care Plans that result from their negotiations and their evaluations.

The CARE Court plan threatens to create a separate legal track for people perceived to have mental health conditions, without adequate process, negatively implicating basic rights.27 Even with stronger judicial procedures and required clinical diagnoses by mental health professionals, this program would remain objectionable because it expands the ability of the state to coerce people into involuntary treatment beyond the limited and temporary circumstances provided for under human rights law.

CARE Court will harm Black, brown, and Unhoused people

The CARE Court directly targets unhoused people to be placed under court-ordered treatment, thus denying their rights and self-determination. Governor Newsom, in pitching this plan, called it a response to seeing homeless encampments throughout the state of California.28 CARE Court will empower police and homeless outreach workers to refer people to the courts and allow judges to order them into treatment against their will, including medication plans. Despite allusions to “housing plans,” CARE Court does not increase access to permanent supportive housing and indeed, the bill prohibits the court from requiring the county to provide actual housing.29

Due to a long history of racial discrimination in housing, employment, access to health care, policing and the criminal legal system, Black and brown people have much higher rates of homelessness than their overall share of the population.30 The CARE Court plan in no way addresses the conditions that have led to these high rates of homelessness in Black and brown communities. Instead, it proposes a system of state control over individuals that will compound the harms of homelessness.

25 SB 1338, Section 5977.
26 SB 1338, Section 5977.
27 Committee on the Rights of Persons with Disabilities, “Guidelines on article 14 of the Convention on the Rights of Person wit h Disabilities: The right to liberty and security of persons with disabilities,” (September 2015), para. 14 https://www.google.com/search?q=Guidelines+on+CRPD+article+14%2C+paragraph+21&rlz=1C1PRFI_enUS936US936&oq=Gu idelines+on+CRPD+article+14%2C+paragraph+21&aqs=chrome..69i57j33i160.3045j0j7&sourceid=chrome&ie=UTF-8, para. 14. 28 KQED, “Gov. Newsom on His Plan to Tackle Mental Health, Homelessness with ‘CARE Courts.’”

30 Kate Cimini, “Black people disproportionately homeless in California,” CalMatters, February 27, 2021, https://calmatters.org/california-divide/2019/10/black-people-disproportionately-homeless-in-california/ (”about 6.5% of Californians identify as black or African American, but they account for nearly 40% of the state’s homeless population”); Esmeralda Bermudez and Ruben Vives, “Surge in Latino homeless population ‘a whole new phenomenon; for Los Angeles,” LA Times, June 18, 2017, https://www.latimes.com/local/california/la-me-latino-homeless-20170618-story.html; Los Angeles Homeless Services Authority, “Report and Recommendations of the Ad Hoc Committee on Black People Experiencing Homelessness,” December 2018, https://www.lahsa.org/documents?id=2823-report-and-recommendations-of-the-ad-hoc- committee-on-black-people-experiencing-homelessness.

6 Further, much research shows that mental health professionals diagnose Black and Latino populations at much higher rates than they do white people.31 One meta-analysis of over 50 separate studies found that Black people are diagnosed with schizophrenia at a rate nearly

2.5 times greater than white people.32 A 2014 review of empirical literature on the subject found that Black people were diagnosed with psychotic disorders three to four times more frequently than white people.33 This review found large disparities for Latino people as well.

CARE Court may place a disproportionate number of Black and Latino people under involuntary court control.

CARE Court Does Not Increase Access to Mental Health Care

The CARE plan would establish a new judicial infrastructure focused on identifying people with mental health conditions and placing them under state control for up to twenty-four months. While touted as an unprecedented investment in support and treatment for people with mental health conditions, in reality, the program provides no new funding for behavioral health care, instead re-directing money already in the budget for treatment to programs required by CARE Court.34 According to the DHHS presentation on the proposal, the only new money allocated for the program will go to the courts themselves to administer this system of control.35

The court-ordered plans will include a “housing plan,” but not a guarantee of, or funding for, permanent supportive housing.36 The court may not order housing or require the county to provide housing.37 The proposal seems to anticipate allowing shelter and interim housing to suffice if available, without recognizing the vast shortage of affordable housing, especially supportive housing, throughout most of California.38 To the extent the proposal relies on state investment in housing already in existence, it will prioritize availability of that housing for people under this program, meaning others in need would have less access to that housing.

California Should Invest in Voluntary Treatment and Supportive Services

CARE Court shifts the blame for homelessness onto individuals and their vulnerabilities, rather than recognizing and addressing the root causes of homelessness such as poverty, affordable housing shortages, barriers to access to voluntary mental health care, and racial discrimination. CARE Courts are designed to force unhoused people with mental health conditions into coerced treatment that will not comprehensively and compassionately address their needs.

31 https://pubmed.ncbi.nlm.nih.gov/29094963/; https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4274585/ 32 https://pubmed.ncbi.nlm.nih.gov/29094963/
33 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4274585/ 34 “CARE (Community Assistance, Recovery and Empowerment) Court,” California Health & Human Services Agency. 35 Ibid.
36 Ibid.
37 SB 1338, Section 5982(c).
38 Ibid.; National Low Income Housing Coalition, “The Gap: A Shortage of Affordable Homes,” March 2020, https://reports.nlihc.org/sites/default/files/gap/Gap-Report_2021.pdf , p. 2, 9; California Housing Partnership, “California Affordable Housing Needs Report,” March 2020, https://1p08d91kd0c03rlxhmhtydpr-wpengine.netdna-ssl.com/wp- content/uploads/2020/03/CHPC_HousingNeedsReportCA_2020_Final-.pdf.

7 Californians lack adequate access to supportive mental health care and treatment.39 However, this program does not increase that access. Instead, it depends on money already earmarked for behavioral health initiatives and layers harmful court involvement onto an already inadequate system. Similarly, the “Care plans” mandated by the CARE Courts do not address the shortage of housing.

Investing in involuntary treatment ties up resources that could otherwise be invested in voluntary treatment and the services necessary to make that treatment effective.40 California should provide well-resourced holistic community-based voluntary options and remove barriers to evidence-based treatment to support people with mental health conditions who might be facing other forms of social exclusion. Such options should be coupled with investment in other social supports and especially housing, not tied to court -supervision.

Rather than co-opting the language used by movements supporting housing and disability rights and cynically parading the trauma of family members let down by the state mental health system, as proponents of CARE Courts have done, we instead ask that you reject the CARE Court proposal entirely and direct resources towards making voluntary treatment and other necessary services accessible to all who need it.

Sincerely,

Olivia Ensign John Raphling
Senior Advocate, US Program Senior Researcher, US Program Human Rights Watch Human Rights Watch

39 Liz Hamel, Lunna Lopes, Bryan Wu, Mollyann Brodie, Lisa Aliferis, Kristof Stremikis and Eric Antebi, “Low-Income Californians and Health Care,” KFF, June 7, 2019, https://www.kff.org/report-section/low-income-californians-and-health-care- findings/#:~:text=About%20half%20of%20Californians%20with%20low%20incomes%20%2852,not%20able%20to%20get% 20needed%20services%20%28Figure%208%29. ( “A majority of low-income Californians (56 percent) say their community does not have enough mental health care providers to serve the needs of local residents.”) 40 Physicians for Human Rights, Neither Justice nor Treatment: Drug Courts in the United States, June 2017, phr_drugcourts_report_singlepages.pdf, p. 3.

5/24/22, 12:12 PM Disability Rights California & Coalition's Letter in Opposition to CARE Court | Disability Rights California https://www.disabilityrightsca.org/latest-news/disability-rights-california-coalitions-letter-in-opposition-to-care-court 1/18 Vision Tools Select a Language
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Disability Rights California
& Coalition's Letter in
Opposition to CARE Court
May 11, 2022
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The Honorable Anthony Portantino
Chair, Senate Appropriations Committee
1021 O Street, Ste. 6730
Sacramento, CA 95814
RE: SB 1338 (Umberg) – OPPOSE
Dear Senator Portantino:

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5/24/22, 12:12 PM Disability Rights California & Coalition's Letter in Opposition to CARE Court | Disability Rights California https://www.disabilityrightsca.org/latest-news/disability-rights-california-coalitions-letter-in-opposition-to-care-court 2/18 The organizations sending this letter advance and protect the civil rights of Californians living with disabilities, experiencing homelessness, and involved in the criminal legal system.

Respectfully, we oppose SB 1338. The CARE Court framework that it seeks to establish is unacceptable for a number of reasons, including major fiscal concerns:

It does not guarantee housing as a solution to address homelessness; Evidence shows that adequately-resourced intensive voluntary outpatient treatment is more effective than court-ordered treatment;
It will perpetuate institutional racism and worsen health disparities; There are flaws in SB 1338’s reliance on a person’s lack of capacity to make medical decisions;
Use of the terms “Supportive Decision-Making” and “Supporter” reflects a misunderstanding of the concepts behind the terms and obscures the involuntary nature of CARE Court; and
Critical terms and concepts are not defined by SB 1338 or elsewhere in California law.

We believe that a transformational proposal like CARE Court should be thoroughly vetted by stakeholders and informed by research and data before it is adopted. That has not happened here. Because CARE Court will harm Californians with disabilities, experiencing homelessness, and involved in the criminal legal system, we cannot support this proposal.

I. Background
The California Legislature has declared that, “In the absence of a controversy, a court is normally not the proper forum in which to make health care decisions.” Yet, SB 1338 seeks to establish a new court system in which health care decisions will be made. Despite SB 1338’s use of the terms “recovery” and “empowerment,” CARE Court is a system of coerced, court- ordered treatment that strips people with mental health disabilities of their right to make their own decisions about their lives.

CARE Court is antithetical to recovery principles, which are based on self-determination and self-direction. The CARE Court proposal is based on stigma and stereotypes of people living with mental health disabilities and experiencing homelessness.

While the organizations submitting this letter agree that State resources must be urgently allocated towards addressing homelessness, incarceration, hospitalization, conservatorship, and premature death of Californians living with severe mental illness, CARE Court is the wrong framework. The right framework allows people with disabilities to retain autonomy over 1 2

5/24/22, 12:12 PM Disability Rights California & Coalition's Letter in Opposition to CARE Court | Disability Rights California https://www.disabilityrightsca.org/latest-news/disability-rights-california-coalitions-letter-in-opposition-to-care-court 3/18 their own lives by providing them with meaningful and reliable access to affordable, accessible, integrated housing combined with voluntary services.

II. Ending homelessness for all
Californians living with mental health
disabilities requires guaranteed housing
provided with delity to principles that
prioritize voluntary services.

Instead of allocating vast sums of money towards establishing an unproven system of court- ordered treatment that does not guarantee housing, the state should expend its resources on a proven solution to homelessness for people living with mental health disabilities: guaranteed housing with voluntary services. Given that housing is proven to reduce utilization of emergency services and contacts with the criminal legal system, a team of UC Irvine researchers concluded that it is “fiscally irresponsible, as well as inhumane” not to provide permanent housing for Californians experiencing homelessness.

To effectuate guaranteed housing, California should use the funds targeted towards CARE Court to instead make large-scale investments in low-barrier, deeply affordable (15% of area median income or less), accessible, integrated housing for people experiencing homelessness. This housing should be made available with access to voluntary, trauma- informed, culturally-responsive, evidence-based services such as Assertive Community Treatment, Intensive Case Management, Peer Support, and substance use disorder services that follow the Harm Reduction approach.

Informed by Housing First Principles, California has recognized that it is crucial to use housing as a tool rather than a reward for recovery, and to provide or connect unhoused people to permanent housing as quickly as possible. Housing First principles, as an evidence-based model, require offering services as needed and requested on a voluntary basis, and not making housing contingent on participation in services. By statute, state programs that provide housing or housing-based services to people experiencing homelessness or at risk of homelessness must adopt guidelines and regulations to incorporate the core components of Housing First.

Evidence shows that housing provided with fidelity to Housing First principles leads to the types of positive outcomes for unhoused people that the state is misguidedly proposing to attain via CARE Court. For example, a recent UCSF randomized controlled study of unhoused 3 4
5 5/24/22, 12:12 PM Disability Rights California & Coalition's Letter in Opposition to CARE Court | Disability Rights California https://www.disabilityrightsca.org/latest-news/disability-rights-california-coalitions-letter-in-opposition-to-care-court 4/18 high utilizers of public systems in Santa Clara County found that permanent supportive housing (which incorporates Housing First principles) combined with intensive case management, significantly reduced psychiatric emergency room visits and increased the rate of scheduled outpatient mental health visits compared to the control group. In addition, Housing First programs that closely adhere to the evidence-based model result in positive housing and substance use outcomes for chronically homeless people with substance use disorders.

CARE Court flies in the face of any evidence-based approach to ending homelessness. It requires a person to be court-ordered into a treatment plan that includes a “housing plan,” without any guarantee that the plan will ever lead to permanent housing. As the Health and Human Services Agency recognizes, “finding stability and staying connected to treatment, even with the proper supports, is next to impossible while living outdoors, in a tent or a vehicle.” On this premise, a person should be offered housing before they can be reasonably expected to engage in mental health services. Because SB 1338 specifically precludes a court from ordering housing and does not require a county to provide housing, CARE Court will create a system of distrust and further hinder participants from obtaining appropriate treatment and services by employing a coercive model. With SB 1338’s built-in presumption that “failure to comply” will lead to a “factual presumption that no suitable community alternatives are available” to treat the person, CARE Court is a fast track to conservatorship and re- institutionalization of people with mental health disabilities, exactly the outcomes that SB 1338 purports to avoid.

III. Evidence shows that adequately-
resourced intensive voluntary outpatient
treatment is more effective than court-
ordered treatment.

Despite SB 1338’s use of the terms “recovery” and “empowerment,” CARE Court sets up a system of coerced, involuntary outpatient civil commitment that deprives people with mental health disabilities of the right to make self-determined decisions about their own lives.

Evidence does not support the conclusion that involuntary outpatient treatment is more effective than intensive voluntary outpatient treatment provided in accordance with evidence- based practices. Conversely, evidence shows that involuntary, coercive treatment is harmful.
6 7
8 9
10 5/24/22, 12:12 PM Disability Rights California & Coalition's Letter in Opposition to CARE Court | Disability Rights California https://www.disabilityrightsca.org/latest-news/disability-rights-california-coalitions-letter-in-opposition-to-care-court 5/18 In 2000, the California Senate Committee on Rules commissioned the RAND Institute to develop a report on involuntary outpatient treatment, with a primary objective to identify and synthesize empirical evidence on the effectiveness of involuntary outpatient treatment and its alternatives. The findings of the RAND report remain relevant today. Then and now, no studies exist to prove that a court order for outpatient treatment in and of itself has any independent effect on client outcomes. Studies show that any positive effects that result from outpatient commitment are due to the provision of intensive services, and whether court orders have any effect at all in the absence of intensive treatment is an unanswered question. In addition, a well-resourced treatment system with the appropriate infrastructure to deliver high-intensity services is critical for the success of any outpatient commitment program.

On the other hand, the RAND study provided strong evidence of the effectiveness of Assertive Community Treatment (ACT), a multidisciplinary, community-based intervention that combines the delivery of clinical treatment with intensive case management. The report’s authors concluded that there is clear evidence that, when implemented with fidelity to evidence-based models, community-based mental health interventions like ACT can produce good outcomes for people living with severe mental illness. Furthermore, psychosocial rehabilitation programs are evidence-based recovery models and interventions considered best practices in addressing the recovery of unhoused individuals with mental health disabilities. The State’s resources would be better utilized to expand and strengthen the availability of ACT, psychosocial rehabilitation recovery models, and other intensive evidence-based treatment modalities throughout California.

IV. CARE Court will perpetuate
institutional racism and worsen health
disparities.

Due to a long and ongoing history of racial discrimination in housing, banking, employment, policing, land use and healthcare, Black people experience homelessness at a vastly disproportionate level compared to the overall population of the state. In Los Angeles County alone, Black people make up 8% of the population, but 34% of people experiencing homelessness. Statewide statistics are even more dire: 6.5% of Californians identify as Black or African-American, but they account for nearly 40% of the state’s unhoused population.
11 12
13 14
15 16
17 18
19 20

5/24/22, 12:12 PM Disability Rights California & Coalition's Letter in Opposition to CARE Court | Disability Rights California https://www.disabilityrightsca.org/latest-news/disability-rights-california-coalitions-letter-in-opposition-to-care-court 6/18 In addition, research shows that Black, indigenous, and people of color (BIPOC) and immigrant racial minorities are more likely to be diagnosed with psychotic disorders than white Americans. In California, rates of serious mental illness vary considerably by racial and ethnic groups, with. American Indian and Alaska Native and Black Californians experiencing the highest rates of serious mental illness.

By targeting unhoused people with diagnoses of schizophrenia and other psychotic disorders, CARE Court will exacerbate health disparities under the directive of a court system. CARE Court will disproportionately impact BIPOC Californians, who are significantly more likely to be homeless and diagnosed with such conditions.

V. There are numerous aws in SB 1338’s
reliance on a person’s lack of capacity to
make medical decisions as a condition of
eligibility for CARE Court.

The CARE Court framework described by SB 1338 rests on the premise that certain people diagnosed with schizophrenia or other psychotic disorders may be court-ordered into treatment if they lack medical decision-making capacity. This premise has serious flaws. SB 1338 ignores California’s legal requirements that must be met before a finding that a person lacks medical decision-making capacity is legally authorized. In addition, requiring a finding that a person lacks medical decision-making capacity as a prerequisite for ordering a person into CARE Court services undermines the entire CARE Court framework, which assumes a participant’s ability to participate in the development of their treatment plan and ultimately consent to it without the appointment of a substitute decision-maker.

A. SB 1338 ignores specic procedures that California requires to determine whether a person lacks capacity to make medical decisions.

Californians are presumed competent to make health care decisions. The law is clear that “the mere diagnosis of a mental or physical disorder shall not be sufficient in and of itself to support a determination that a person is of unsound mind or lacks the capacity to do a certain act” and that a finding of incapacity to make a certain decision or do a certain act must be based on evidence of a deficit in a mental function related to the decision or action in question. Because the right to refuse medical treatment is a fundamental liberty interest regarding one’s bodily autonomy, the right to due process attaches when it is questioned. 21 22
23 24

5/24/22, 12:12 PM Disability Rights California & Coalition's Letter in Opposition to CARE Court | Disability Rights California https://www.disabilityrightsca.org/latest-news/disability-rights-california-coalitions-letter-in-opposition-to-care-court 7/18 California law is very clear about the process, which includes the right to a court hearing, that must be followed to determine whether a person lacks medical decision-making capacity.Probate Code §§ 3200-3212. SB 1338 does not require any of these steps. Instead, it allows unacceptable shortcuts: submission of an affidavit of a behavioral health professional based on an evaluation that occurred up to three months prior or not at all, or evidence of an LPS hold within the past 90 days. Neither of these shortcuts is sufficient to prove that a person lacks capacity to make medical decisions or satisfy due process requirements for stripping a person of their right to control their bodily autonomy and make their own medical decisions.

B. Finding that a person lacks capacity to make medical decisions requires offering a treatment plan on a voluntary basis rst, with the opportunity to give informed consent.

Under California law, “capacity” means “a person’s ability to understand the nature and consequences of a decision and to make and communicate a decision, and includes in the case of proposed health care, the ability to understand its significant benefits, risks, and alternatives.”
According to this definition of capacity, a person must be provided with a description of the proposed treatment plan, information about risks, benefits, and alternatives to the plan, and an opportunity to voluntarily engage in the plan before a finding of incapacity is made. Under the language of SB 1338, the process is reversed: a person is first found incompetent to make decisions about medical treatment and, only after such finding, offered any information about the proposed treatment. This reversed approach does not pass muster under California laws governing incompetency to make medical decisions.

C. Requiring a lack of capacity as a necessary element of ordering a person to CARE Court effectively eviscerates the proposed legislation.

The premise of CARE Court is that a person can “choose” to enter a court-ordered treatment plan that they have participated in developing. However, this is failed logic if a prerequisite for an order to CARE Court is that a person lacks capacity to make medical decisions. Requiring a lack of capacity as a necessary element of ordering a person to CARE Court completely undermines the framework, inasmuch as SB 1338 presumes that individuals are capable of actively participating in the development of their treatment plans, specifically requires that they be afforded the opportunity to do so, and does not contemplate the appointment of a substitute decisionmaker to consent to the plan.
25 26

5/24/22, 12:12 PM Disability Rights California & Coalition's Letter in Opposition to CARE Court | Disability Rights California https://www.disabilityrightsca.org/latest-news/disability-rights-california-coalitions-letter-in-opposition-to-care-court 8/18 VI. Use of the terms “Supported
Decision-Making” and “Supporter” in the
context of a coercive court-ordered
treatment scheme reects a serious
misunderstanding of the concepts behind
the terms and obscures the involuntary
nature of CARE Court.

SB 1338’s use of the terms “Supported Decision-Making" and “Supporter” to describe certain court-ordered components of the CARE Court process is so inconsistent with well-established definitions of those concepts that the usage is not just inaccurate. It is misleading and problematic.

Supported Decision Making (SDM) is a practice that has been recognized and endorsed by the Administration for Community Living of the U.S. Department of Health and Human Services, (which funds the National Resource Center for Supported Decision-Making), the American Bar Association Commission on Law and Aging, and the United Nations Convention on Rights of Persons with Disabilities. Across the board, these entities have used the term SDM to refer to a model or practice that enables individuals to make choices about their own lives with support from a team of people they choose. With SDM, individuals choose people they know and trust to be part of a support network that helps them understand their issues, options, and choices. The role of the supporter is to offer guidance and advice, but to ultimately honor and help carry out the choices made by that individual, regardless of whether the supporter thinks they are in the person’s best interest.

Contrary to SB 1338’s statement of findings and declarations, the new “CARE Supporter” role will not advance and protect self-determination and civil liberties of Californians living with severe mental illness. More troublingly, the “CARE Supporter” role is not just acting within a coercive system but also has the potential to be an agent of that system. If a person “fails” or does not comply with their “CARE plan,” they risk being forced into a conservatorship based on reports from the “CARE Supporter” about whether the person followed their plan.

Therefore, because these “CARE Supporters” are appointed for the express purpose of assisting with decisions as part of the CARE Court process, they are more accurately “court- appointed navigators,” and should be recognized as such. 27 28
29 30

5/24/22, 12:12 PM Disability Rights California & Coalition's Letter in Opposition to CARE Court | Disability Rights California https://www.disabilityrightsca.org/latest-news/disability-rights-california-coalitions-letter-in-opposition-to-care-court 9/18 Because a person’s choice of their own supporters is at the heart of SDM, it cannot exist within a framework of a coercive court-ordered treatment scheme where a judge appoints a navigator whom the individual has never met and has no reason to trust.

Disability Rights California and Disability Rights Education and Defense Fund—signatories to this letter—are co-sponsors of AB 1663 (Maienschein), the Probate Conservatorship Reform and Supported Decision-Making Act, which seeks to codify SDM as part of the Probate Code.

AB 1663 passed out of this committee with a vote of 10-0. The bill makes clear that SDM allows a person with a disability to choose voluntary supports to help them with decisions, as requested. SB 1338’s misappropriation of these concepts and proposed statutory language from AB 1663, without using the appropriate definitions of the terms, undermines the true meaning and value of SDM.

VII. Many critical terms and concepts are
not dened by SB 1338 or anywhere else
in California law.

SB 1338 does not adequately define critical terms and concepts necessary to provide adequate understanding of the parameters of CARE Court. This lack of clarity will result in confusion and inconsistent application of the law across the state. These terms and concepts include, but are not limited to:
“Not clinically stabilized in on-going treatment with the county behavioral health agency” (§ 5972(c));
“Qualified behavioral health professional” (§ 5975(g)(1)); Criteria for “graduation” from CARE Court (§ 5977(h)(1)); Criteria for “reappointment” to CARE Court (§ 5977(h)(1)); Criteria and process for finding that a person is “not participating in CARE proceedings” or “failing to comply with the CARE plan” (§ 5979(a));
Criteria and process for terminating a participant from CARE Court 5979(a)); Criteria and process for finding that a county is not complying with court orders (§ 5979(b)); and
Criteria and process for finding that a county is “persistently noncompliant” (§ 5979(b)).

VIII. Fiscal Considerations

5/24/22, 12:12 PM Disability Rights California & Coalition's Letter in Opposition to CARE Court | Disability Rights California https://www.disabilityrightsca.org/latest-news/disability-rights-california-coalitions-letter-in-opposition-to-care-court 10/18 For the purposes of the Appropriations Committee’s consideration, we believe CARE Court will be a costly mistake, diverting resources from people who need other care and investing resources in ways that will make CARE Court not just a failure but a costly one as well. CARE Court is time limited assistance with forced treatment, which has a history of more harm than good. A better use of these significant funds will be to invest in a robust housing framework for this target population and provide services.

The new court infrastructure is likely to fail at accomplishing Community Assistance, Recovery, and Empowerment (CARE). Still, an investment in courts is likely to cost in excess of hundreds of millions of dollars, if not more. Part of this may be one-time funding, but to the extent the court system needs to augment and train a workforce for the new responsibilities under CARE Court, we can estimate at least tens of millions of dollars in ongoing costs.

The bill is targeting 7,000 to 12,000 people with severe mental illness but it is unclear how they will be found, how they will get to court, and how much will be spent on care teams of providers through county behavioral health departments. Services would require extensive staffing. Ongoing costs could be at least in the hundreds of millions of dollars statewide.

Current funding for mental health services, already insufficient to meet needs, will likely be diverted to pay for CARE Court, risking services for others, including children and youth. In addition, much of CARE Court will not be reimbursable through Medi-Cal.

Although there is a requirement for a care plan that includes a housing plan, the bill contains no authority for a court to order housing. Without housing first, there is a high likelihood of failure even if a robust menu of services is provided. If a person fails their care plan, “subsequent proceedings may use the CARE proceedings as a factual presumption that no suitable community alternatives are available to treat the individual.” Effective treatment takes time and anticipates relapse on the road to recovery. The high risk of failure, which may not be the fault of the individual, makes it likely the state will incur significant but indeterminate costs on conservatorships and state hospitals.

IV. Conclusion
CARE Court is not the appropriate tool for providing a path to wellness for Californians living with mental health disabilities who face homelessness, incarceration, hospitalization, conservatorship, and premature death. Instead, California should invest in evidence-based practices that are proven to work and that will actually empower people living with mental health disabilities on their paths to recovery and allow them to retain full autonomy over their lives without the intrusion of a court.

5/24/22, 12:12 PM Disability Rights California & Coalition's Letter in Opposition to CARE Court | Disability Rights California https://www.disabilityrightsca.org/latest-news/disability-rights-california-coalitions-letter-in-opposition-to-care-court 11/18 For more information on Care Court view: Disability Rights California Stands United with Individuals Experiencing Mental Health Disabilities (CARE Court) Sincerely,
Andrew J. Imparato
Executive Director
Disability Rights California
Kevin Baker
Director of Governmental Relations
American Civil Liberties Union California Action
Mike Herald
Director of Policy Advocacy
Western Center on Law and Poverty
Andrea Wagner
Interim Executive Director
California Association of Mental Peer-Run Organizations (CAMHPRO) Claudia Center
Legal Director

5/24/22, 12:12 PM Disability Rights California & Coalition's Letter in Opposition to CARE Court | Disability Rights California https://www.disabilityrightsca.org/latest-news/disability-rights-california-coalitions-letter-in-opposition-to-care-court 12/18 Disability Rights Education & Defense Fund (DREDF)
Mari Castaldi
Senior Legislative Advocate
Housing California
Sharon L. Rapport
Director, California State Policy
Corporation for Supportive Housing (CSH)
Paul Boden
Executive Director
Western Regional Advocacy Project (WRAP)
Ira Burnim
Legal Director
Bazelon Center
Tony Chicotel
California Advocates for Nursing Home Reform
Kim Lewis
Managing Attorney
National Health Law Project
Michael Bien
Rosen Bien Galvan & Grunfeld LLP
Abre’ Conner
Directing Attorney
Law Foundation of Silicon Valley
Sasha Ellis
Senior Attorney
Bay Area Legal Aid
Frank SmithWaters
Director
The SmithWaters Group
Karen Hernández
Lead Organizer

5/24/22, 12:12 PM Disability Rights California & Coalition's Letter in Opposition to CARE Court | Disability Rights California https://www.disabilityrightsca.org/latest-news/disability-rights-california-coalitions-letter-in-opposition-to-care-court 13/18 People’s Budget Orange County
David Duran
HHROC Co-Founder
Housing is a Human Right Orange County (HHROC)
Ambrose Brooks
Coalition Coordinator
JusticeLA
Stacie Hiramoto, MSW
Director
Racial & Ethnic Mental Health Disparities Coalition (REMHDCO) Eric Tars
Legal Director
National Homelessness Law Center
Kelechi Ubozoh
(Individual)
David Mauroff
CEO
San Francisco Pretrial Diversion Project
Andreya Garcia-Ponce De Leon
Executive Director
San Bernardino Free Them All
Maria Apodaca
Legal Assistant
Project Amiga
Bob Erlenbusch
Executive Director
Sacramento Regional Coalition to End Homelessness
Amanda Andere
CEO
Funders Together to End Homelessness

5/24/22, 12:12 PM Disability Rights California & Coalition's Letter in Opposition to CARE Court | Disability Rights California https://www.disabilityrightsca.org/latest-news/disability-rights-california-coalitions-letter-in-opposition-to-care-court 14/18 Larry Dodson
Pastor
New Life Ministries of Tulare County
Alexis Sanchez
Director of Advocacy & Training
Sacramento LGBT Community Center
Paula Lomazzi
Executive Director
Sacramento Homeless Organizing Committee
Stuart Seaborn
Managing Director, Litigation
Disability Rights Advocates
James Burch
Policy Director
Anti-Police Terror Project
Mental Health First
The Justice Teams Network
Melissa A. Morris
Staff Attorney
Public Interest Law Project
Genevieve Romero
Fellow
Care First California
Pavithra Menon
Supervising Attorney
Mental Health Advocacy Services (MHAS)
Heidi L. Strunk
President and CEO
Mental Health America of California
Katherine Pérez
Director
The Coelho Center for Disability Law, Policy & Innovation

5/24/22, 12:12 PM Disability Rights California & Coalition's Letter in Opposition to CARE Court | Disability Rights California https://www.disabilityrightsca.org/latest-news/disability-rights-california-coalitions-letter-in-opposition-to-care-court 15/18 Lori Markuson, PhD
Administrative Coordinator
Psychologists for Social Responsibility
Jael Barnes
Pretrial Justice Organizer
Decarcerate Sacramento
Tatiana Turner
Founder
Caravan4justice
Avalon Edwards
Policy Associate
Starting Over, Inc.

Kara Chien
Managing Attorney, Mental Health Unit
San Francisco Public Defender's Office
Jordan Kough
Executive Director
Disability Rights Legal Center
Yasmin Peled
Senior Policy Advocate
Justice in Aging
Emily Harris
Policy Director
Ella Baker Center for Human Rights
Paul Simmons
Executive Director
Depression and Bipolar Support Alliance – CA
Keris Jän Myrick, M.B.A., M.S., Ph.D.c
Host
Unapologetically Black Unicorns
Cathy E. Costanzo
Executive Director

5/24/22, 12:12 PM Disability Rights California & Coalition's Letter in Opposition to CARE Court | Disability Rights California https://www.disabilityrightsca.org/latest-news/disability-rights-california-coalitions-letter-in-opposition-to-care-court 16/18 Center for Public Representation
Jessica Lehman
Executive Director
Senior & Disability Action
cc:

The Honorable Members, Senate Appropriations Committee
The Honorable Thomas Umberg, California State Senate
Zach Keller, Legislative Director, Office of Senator Umberg Probate Code § 4650(c).

Substance Abuse and Mental Health Services Administration, SAMHSA’s Working Definition of Recovery ( https://store.samhsa.gov/sites/default/files/d7/priv/pep12-recdef.pdf) .

David A. Snow and Rachel E. Goldberg, Homelessness in Orange County: The Costs to Our Community (June 2017) at 43 ( https://www.unitedwayoc.org/wp-content/uploads/2017/08/united-way-cost-… ).

Welf. & Inst. Code § 8255(d)(1).

Welf. & Inst. Code § 8256(a). SB 1338’s stated plan to give CARE Court participants priority for the “Behavioral Health Bridge Housing” proposed in the Governor’s Budget violates the State’s commitment to Housing First as codified here. CARE Court is not a Housing First program because it will likely require participants to comply with a program or services as a condition of tenancy.

Maria C. Raven, M.D., M.P.H., M.Sc., et al., A Randomized Trial of Permanent Supportive Housing for Chronically Homeless Persons with High Use of Publicly Funded Services, Health Services Research 2020;55 (Suppl. 2): 797 at 803.

Clare Davidson, M.S.W., et al., Association of Housing First Implementation and Key Outcomes Among Homeless Persons with Problematic Substance Use, Psychiatric Services 2014; 65:1318 at 1323.

California Health and Human Services Agency, CARE Court: A New Framework for Community Assistance, Recovery, and Empowerment ( https://www.chhs.ca.gov/wp-content/uploads/2022/03/CARE-Court- Framework…) (accessed April 10, 2022).

Joseph P. Morrissey, Ph.D., et al., Outpatient Commitment and Its Alternatives: Questions Yet to Be Answered, Psychiatric Services 2014:812 at 814 (2014).

S.P. Sashidharan, Ph.D., et al., Reducing Coercion in Mental Healthcare, Epidemiology and Psychiatric Sciences 2019: 28, 605-612 (All forms of coercive practices are inconsistent with human rights-based mental healthcare); Daniel Werb, Ph.D., et al., The Effectiveness of Compulsory Drug Treatment: A Systematic Review, International Journal of Drug Policy 2016: 28, 1-9 (Because evidence, on the whole, does not suggest improved outcomes related to compulsory drug treatment approaches and some studies suggest potential harms, non-compulsory treatment modalities should be prioritized by policymakers seeking to reduce drug- related harms).

M. Susan Ridgely, et al., The Effectiveness of Involuntary Outpatient Treatment: Empirical Evidence and the Experience of Eight States, RAND Health and RAND Institute for Civil Justice, 2001

1. 2.

3. 4.

5. 6.

7. 8.

9. 10.

11. 5/24/22, 12:12 PM Disability Rights California & Coalition's Letter in Opposition to CARE Court | Disability Rights California https://www.disabilityrightsca.org/latest-news/disability-rights-california-coalitions-letter-in-opposition-to-care-court 17/18 ( https://www.rand.org/pubs/monograph_reports/MR1340.html) .

Id. at xvi.

Id. at 27.

Id. at 67.

Id. at 29. The primary difference between California’s Full Service Partnerships (FSP) and ACT is that there is no evidence-based model that FSPs must follow. There is significant variation in FSP delivery across counties.

Some counties have ACT programs as part of their FSP offerings. When offered as part of an FSP, ACT generally provides a more engaged level of service than the standard FSP.

Id. at 32.

Interdepartmental Serious Mental Illness Coordinating Committee, The Way Forward: Federal Action for a System that Works for All People Living with SMI and SED and their Families and Caregivers (December 13, 2017) at 25 ( https://www.samhsa.gov/sites/default/files/programs_campaigns/ismicc_20… ).

The recent behavioral health needs assessment published by DHCS found that ACT is not yet available with fidelity on the scale necessary to support optimal care for people who could benefit from the level of engagement that it offers. State of California, Department of Health Care Services, Assessing the Continuum of Care for Behavioral Health Services in California: Data, Stakeholder Perspectives, and Implications (January 10, 2022) at 60 ( https://www.dhcs.ca.gov/Documents/Assessing-the-Continuum-of-Care-for-B… ) Steve Lopez, Column: Black people make up 8% of L.A. population and 34% of its homeless. That’s unacceptable., Los Angeles Times, June 13, 2020 ( https://www.latimes.com/california/story/2020-06- 13/column-african-amer…).

Kate Cimini, Black people disproportionately homeless in California, Cal Matters, October 5, 2019 (updated February 27, 2021) ( https://calmatters.org/california-divide/2019/10/black-people-dispropor… ).

Robert C. Schwartz, Ph.D., et al., Racial disparities in psychotic disorder diagnosis: A review of empirical literature, World Journal of Psychiatry 2014: 4:4, 133-140.

California Health Care Foundation, Health Disparities by Race and Ethnicity in California: Pattern of Inequity (October 2021) at 33 ( https://www.chcf.org/wp-content/uploads/2021/10/DisparitiesAlmanacRaceE… ).

Probate Code § 4657.

Probate Code § 811(a), (d).

Probate Code § 4609.

See Matter of K.L., 1 N.Y.3d 362, 369 (2004).

American Bar Association, Guardianship and Supported Decision-Making ( https://www.americanbar.org/groups/law_aging/resources/guardianship_law… ).

National Center on Law & Elder Rights, Legal Basics: Supported Decision-Making ( https://ncler.acl.gov/pdf/Legal-Basics-Supported-Decision-Making1.pdf) .

United Nations Department of Economic and Social Affairs/Disability, Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities Chapter Six: From Provisions to Practice: Implementing the Convention – Legal Capacity and Supported Decision-Making ( https://www.un.org/development/desa/disabilities/resources/handbook-for… ).

Center for Public Representation, About Supported Decision Making ( https://supporteddecisions.org/about- supported-decision-making/) (accessed April 8, 2022).

12. 13.

14. 15.

16. 17.

18. 19.

20. 21.

22. 23.

24. 25.

26. 27.

28. 29.

30. 5/24/22, 12:12 PM Disability Rights California & Coalition's Letter in Opposition to CARE Court | Disability Rights California https://www.disabilityrightsca.org/latest-news/disability-rights-california-coalitions-letter-in-opposition-to-care-court 18/18

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5/24/22, 12:14 PM Disability Rights California Stands United with Individuals Experiencing Mental Health Disabilities (CARE Court) | Disability Right… https://www.disabilityrightsca.org/latest-news/disability-rights-california-stands-united-with-individuals-experiencing-mental-health 1/3 Vision Tools Select a Language
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Disability Rights California
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Individuals Experiencing
Mental Health Disabilities
(CARE Court)
April 7, 2022
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Disability Rights California is firm in its commitment to stop any policy that takes away the rights of people with disabilities, including the CARE Court framework. The CARE Court proposal could place Californians living with mental health disabilities and substance use disorders under involuntary court-ordered treatment.

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5/24/22, 12:14 PM Disability Rights California Stands United with Individuals Experiencing Mental Health Disabilities (CARE Court) | Disability Right… https://www.disabilityrightsca.org/latest-news/disability-rights-california-stands-united-with-individuals-experiencing-mental-health 2/3 Background
On March 3, 2022, Governor Newsom announced a policy framework for developing CARE Court in all of California’s 58 counties, which could place Californians living with mental health disabilities and substance use disorders who experience homelessness and/or incarceration under court-ordered treatment. You can read more about the CARE Court framework here: Fact Sheet: CARE Court (*Note: This is a government fact sheet.) On March 10, 2022, Disability Rights California hosted a Town Hall event for DRC’s clients and community stakeholders to provide feedback about Governor Newsom’s CARE Court framework for providing services to unhoused people living with mental health disabilities and substance use disorders.

On April 8, 2022 DRC hosted a convening where advocates provided the most up-to-date information about what we know about the CARE Court framework. We also sought input of our community to combat any framework that demands costly resources, strips the rights of people with disabilities, and makes no commitment to provide housing.

Up-To-Date Information on CARE Court
DRC will continue to effectively oppose a costly, unproven court-ordered treatment system that will not end homelessness in California, we need the community and we want to advocate with you. Below please find educational information and resources about CARE Court:

Disability Rights California & Coalition's Letter in Opposition to CARE Court DRC's Statement in response to Governor Newsom's Framework for CARE Court.

Collective Talking Points Opposing CARE Court from DRC's Community Proposed Bill
Bill Text - SB-1338 Community Assistance, Recovery, and Empowerment (CARE) Court Program.

Disability Rights California Publications -
Know Your Rights
Fact Sheet: Disability-Based Housing Discrimination

5/24/22, 12:14 PM Disability Rights California Stands United with Individuals Experiencing Mental Health Disabilities (CARE Court) | Disability Right… https://www.disabilityrightsca.org/latest-news/disability-rights-california-stands-united-with-individuals-experiencing-mental-health 3/3 https://www.disabilityrightsca.org/publications/fact-sheet-disability-b… Emotional Support and Service Animals in Public Housing https://www.disabilityrightsca.org/publications/emotional-support-and-s… Discrimination Fact Sheet: Public Transportation
https://www.disabilityrightsca.org/publications/discrimination-fact-she… Consumer Information for Complaints about Health Care Professionals, Facilities, and Programs
https://www.disabilityrightsca.org/publications/consumer-information-fo… Understanding the Lanterman-Petris-Short (LPS) Act
https://www.disabilityrightsca.org/publications/understanding-the-lante… Assisted Outpatient Treatment (AOT) Toolkit
https://www.disabilityrightsca.org/resources/mental-health/assisted-out… Handbook for Challenging Mental Health Conservatorships https://www.disabilityrightsca.org/publications/handbook-for-challengin… Comments
You can send comments, and questions to [email protected].

© 2022 Disability Rights California
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Disability Rights California
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organization founded in 1978
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strengthens the rights and
opportunities of people with
disabilities.

5/24/22, 12:14 PM Disability, Civil Rights Groups Say Fundamental Questions Must Be Answered Regarding ‘CARE Court’ Proposal | ACLU of Sout… https://www.aclusocal.org/en/press-releases/disability-civil-rights-groups-say-fundamental-questions-must-be-answered-regarding 1/4 MenuACLU of Southern
California

MEDIA CONTACT
ACLU SoCal Communications & Media
Advocacy, [email protected]
( mailto:[email protected]) , 213-97 7-5242 (tel:213-97 7-5242) Courtney McKinney, Western Center on Law &
Pover t y, [email protected], ( mailto:[email protected],) 214-395- 2755 (tel:214-395-2755)
Melody Pomraning, Disability Rights
California, [email protected]
( mailto:[email protected]) , 916-504-5938 (tel:916-504 -5938)
APRIL 26, 2022
Af ter issuing a letter in strong opposition, groups request specific answers fore core components of proposal
Sacrament o, CA – With Governor Gavin Newsom’s proposal for a so- called "CARE Cour t" set to be heard by the legislature this week, and after more than 40 advocacy groups including ACLU California Action, Disabilit y Rights California, and West ern Center on Law & Pover ty submitted resounding opposition to its related bill, SB 1338 (Umberg & Eggman), advocates say fundamental questions remain unaddressed by the administration and bill authors.

T he specific questions advocates have about the proposal include:

FUNDAMENTAL QUESTIONS MUST BE ANSWERED
REGARDING ‘CARE COURT’ PROPOSAL
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5/24/22, 12:14 PM Disability, Civil Rights Groups Say Fundamental Questions Must Be Answered Regarding ‘CARE Court’ Proposal | ACLU of Sout… https://www.aclusocal.org/en/press-releases/disability-civil-rights-groups-say-fundamental-questions-must-be-answered-regarding 2/4

1. How would the CARE Cour t respond t o the crisis of insufficient housing and treatment availability for people who need either or both?

2. How would the CARE Cour t avoid reinforcing systemic racial biases which result in disproportionate numbers of Black and brown people unhoused and under cour t super vision?

3. How would the CARE Cour t achieve effective outcomes with coerced treatment where evidence has consist ently suppor ted adequately resourced voluntary treatment instead?

4. How would the CARE Cour t avoid fast-tracking vulnerable people with disabilities to conservatorship and the diminution of their aut onomy and legal rights?
T he joint opposition letter sent to legislators this month unequivocally stat es that the framework of the proposal is entirely and irreparably flawed. Specifically, if these fundamental questions go unaddressed, the proposal is simply bill language without substance.

“Instead of creating a new cour t system to delegate medical care, California should guarant ee housing for people who are unhoused and for those with severe mental health disabilities,” says Helen Tran, health attorney for Western Center on Law & Pover t y. “Forcing people into cour t-ordered treatment without guarantee of permanent housing will create a continuous cycle of court inter vention when people find themselves back on the street due to California’s severe lack of affordable, permanent suppor tive housing. State funds should be directed toward the creation of housing and suppor tive services to help people maintain their housing and health care needs.”

T he groups say the proposed CARE Court model will lead to unnecessary institutionalization of people with disabilities and unhoused people and will likely creat e a chilling effect that prevents people from seeking supportive ser vices for fear of being

5/24/22, 12:14 PM Disability, Civil Rights Groups Say Fundamental Questions Must Be Answered Regarding ‘CARE Court’ Proposal | ACLU of Sout… https://www.aclusocal.org/en/press-releases/disability-civil-rights-groups-say-fundamental-questions-must-be-answered-regarding 3/4 institutionalized or other wise having their rights stripped. T he proposal also feeds into the false narrative that most unhoused people have a psychiatric disorder.

“CARE Cour t is a fast track to re-institutionalize Californians living with mental health disabilities,” says Kim Pederson, senior attorney at Disabilit y Rights California. “T he state should invest in evidence- based practices for volunt ary engagement in community-based, trauma-informed, culturally-responsive ment al health services. Instead, CARE Cour t creates a punitive syst em under which a person must comply with cour t orders or risk being conserved and
institutionalized. T rue recovery and empowerment can only come from providing people with meaningful oppor tunities t o make their own choices about the ser vices that will work best for them.”

Additionally, by involving the legal syst em the proposal will perpetuate institutional racism and exacerbate existing disparities in health care delivery since Black, Indigenous and other people of color are significantly more likely to be diagnosed with psychotic disorders than white people, and because there is clear evidence that adequately resourced, intensive, voluntary outpatient treatment is more effective than cour t-ordered treatment .

“At a time when there is an unprecedent ed housing crisis that dispropor tionately impacts Black people and other people of color, many of whom have already been entangled in failed legal and other systems, this proposal if enacted would have disastrous consequences,” says Brandon Greene, director of the Racial and Economic Justice Program at the ACLU of Nor thern California. “What we need is investment in holistic community driven systems not punitive ones that fur ther alienate and ostracize.”

Read the full letter of
opposition:  https://www.disabilityrightsca.org/latest-news/disability- r ights-california-coalitions-letter-in-opposition-t o-care-court

5/24/22, 12:14 PM Disability, Civil Rights Groups Say Fundamental Questions Must Be Answered Regarding ‘CARE Court’ Proposal | ACLU of Sout… https://www.aclusocal.org/en/press-releases/disability-civil-rights-groups-say-fundamental-questions-must-be-answered-regarding 4/4 ( https://www.disabilityrightsca.org/latest-news/disability-rights-california- coalitions-letter-in-opposition-to-care-court)

From:Walter C. Chung
To:Corinna Contreras; Darold Pieper; Patrick Johnson; Kathy Valdez Subject:RE: D2 Resolution SB 1338 Alternative Resolution Date:Tuesday, May 24, 2022 1:41:38 PM
Attachments:Contreras SB1338 Alternate Resolution.docx
Kathy,
Attached is CM Contreras’ alternate resolution that should be included in the add to packet.

From: Corinna Contreras
Sent: Tuesday, May 24, 2022 1:19 PM
To: Darold Pieper ; Walter C. Chung ; Patrick
Johnson
Subject: D2 Resolution SB 1338 Alternative Resolution
Hello,
I am concerned about the gaps in the resolution being presented at tonight's Council meeting. I would like to propose an alternative resolution modeled off of language used by San Diego County.

Is there time to taylor my alternative for review by the Council tonight? Here it is:

RESOLUTION NO. 2022- A RESOLUTION OF THE CITY COUNCIL OF THE

CHARTERED CITY OF VISTA, CALIFORNIA, SUPPORTING COMMUNITY

ASSISTANCE, RECOVERY, AND EMPOWERMENT (CARE) COURT PROGRAM The City Council of the City of Vista does resolve as follows:

1. Findings. The City Council hereby finds and declares the following:

A. In March 2022, California Governor Newsom introduced a policy framework that seeks to assist people living with untreated mental health and substance use disorders. The policy framework, the Community Assistance, Recovery, and Empowerment (CARE) Court, is a court-ordered plan that connects a person with 24 months of case management and services. These services include a public defender, clinical support services and a trained supporter, as well a housing plan. The collaborative participation of local municipalities is necessary for the successful implementation of CARE Court in San Diego County.

B. In the City of Vista, the CARE Court framework could play an important role

ADD TO PACKET
D2

in helping people with very specific needs access treatment. However, certain concerns would need to be addressed in order to successfully implement CARE Court.

C. As CARE Court is a proposed strategy to help those who are experiencing homelessness and substance use disorders, housing is a critical component.

Without providing necessary housing, the CARE Court treatment provided will likely be unsuccessful.

D. An unsuccessful participant of CARE Court is one who fails to follow the court-ordered plan. In failing to follow the plan, there is a presumption that there are no suitable community alternatives and that a conservatorship under the Lanterman-Petris-Short (LPS) Act may be warranted.

E. CARE Court, as currently written, housing is not guaranteed. Without housing, an individual experiencing homelessness could have difficulty successfully participating in the CARE Court plan.

F. The eligibility criteria for CARE Court participation must be carefully crafted to target the population in need. By clearly defining eligibility in consultation with behavioral health experts, the program will avoid the severe unintended consequences of involving people in the court system who are not in crisis.

Additionally, carefully defining eligibility will ensure that those in need receive the full benefit of CARE Court rather than encumbering the program with unintended recipients.

2. Action
A. The above recitals are true and correct, and are the findings of the City Council.

B. The City Council hereby supports CARE Court, and authorizes staff and individual City Councilmembers to support CARE Court on behalf of the City.

RESOLUTION NO. 2022-

A RESOLUTION OF THE CITY COUNCIL OF THE CHARTERED CITY OF

VISTA, CALIFORNIA, SUPPORTING COMMUNITY ASSISTANCE,

RECOVERY, AND EMPOWERMENT (CARE) COURT PROGRAM
The City Council of the City of Vista does resolve as follows:

1. Findings. The City Council hereby finds and declares the following:

A. In March 2022, California Governor Newsom introduced a policy framework that seeks to assist people living with untreated mental health and substance use disorders. The policy framework, the Community Assistance, Recovery, and Empowerment (CARE) Court, is a court-ordered plan that connects a person with 24 months of case management and services.

These services include a public defender, clinical support services and a trained supporter, as well a housing plan. The collaborative participation of local municipalities is necessary for the successful implementation of CARE Court in San Diego County.

B. In the City of Vista, the CARE Court framework could play an important role in helping people with very specific needs access treatment. However, certain concerns would need to be addressed in order to successfully implement CARE Court.

C. As CARE Court is a proposed strategy to help those who are experiencing homelessness and substance use disorders, housing is a critical component. Without providing necessary housing, the CARE Court treatment provided will likely be unsuccessful.

D. An unsuccessful participant of CARE Court is one who fails to follow the court- ordered plan. In failing to follow the plan, there is a presumption that there are no suitable community alternatives and that a conservatorship under the Lanterman-Petris-Short (LPS) Act may be warranted.

E. CARE Court, as currently written, housing is not guaranteed. Without housing, an individual experiencing homelessness could have difficulty successfully participating in the CARE Court plan.

F. The eligibility criteria for CARE Court participation must be carefully crafted to target the population in need. By clearly defining eligibility in consultation with behavioral health experts, the program will avoid the severe unintended consequences of involving people in the court system who are not in crisis. Additionally, carefully defining eligibility will ensure that those in need receive the full benefit of CARE Court rather than encumbering the program with unintended recipients.

2. Action.

A. The above recitals are true and correct, and are the findings of the City Council.

B. The City Council hereby supports CARE Court, and authorizes staff and individual City Councilmembers to support CARE Court on behalf of the City.

[Continued on page 2.]

RESOLUTION NO. 2022-

CITY COUNCIL OF THE CHARTERED CITY OF VISTA
PAGE 2

3. Adoption. PASSED AND ADOPTED at a meeting of the City Council of the City of Vista held on May 24, 2022, by the following vote:

AYES:

NOES:

ABSTAIN:

APPROVED AS TO FORM:

DAROLD PIEPER, CITY ATTORNEY

By:

JUDY RITTER, MAYOR

ATTEST:

KATHY VALDEZ, CITY CLERK

By: