March 2, 2010 Pub #5487.01
Voluntary Services as Alternative to Involuntary Detention under LPS Act
This memo outlines often overlooked rights to end the unnecessary involuntary
commitment of Californians with psychiatric disabilities in hospitals and other
institutional settings. All persons
subject to involuntary hospitalization have rights to evaluation for and
advisement of home and community-based services to meet individual needs. State programs and services provide for a
wide array of alternatives, including but not limited to voluntary programs
created by the Mental Health Services Act (MHSA) and Medi-Cal
Specialty Mental Health Services.
There
are several ways to challenge the denial of these rights and obtain the
services that you desire as an alternative to involuntary hospitalization. One way
is to request written information from county or hospital staff about available
service alternatives. Another way is to
request a Medi-Cal fair hearing to obtain assistance
provided by your Mental Health Plan. There
are also federal compliance and discrimination complaint processes. If you would like more information about how
to obtain home and community-based alternatives to involuntary detention,
please call Disability Rights California at 1-800-776-5746.
1. Evaluation
and Offer of Voluntary Home & Community-Based Care Instead of Involuntary Hospitalization
Any person who is detained for involuntary mental health treatment under
the Lanterman-Petris-Short (LPS) Act has rights:
a.
to an
evaluation of whether home and community-based services available under county
and state programs could appropriately meet his or her needs;
b.
to voluntarily
accept appropriate home and community-based services as an alternative to
involuntary detention; and
c.
to reasonable
provision of home and community services on a voluntary basis.[1]
2. Offer
of Voluntary Home & Community-Based Care is Promoted and Often Required
under Constitutional and Statutory Law
The right to acceptance of mental health services on a voluntary basis is based on several legal concepts, including;
a. Government curtailment of liberty under
federal and state constitutions is not necessary where a person is willing and
able to accept appropriate services on a voluntary basis so long as the person
is nondangerous and able to take care of him- or herself. Additionally, a person’s ability and
willingness to accept voluntary services prevents unnecessary legal
expenditures associated with furthering the involuntary commitment process,
which often includes appeals.[2]
b. State law provides that a psychiatric patient
may not be presumed incompetent solely on the basis of
his or her hospitalization.[3] As such, hospitalized individuals retain the
right to give informed consent to mental health care and treatment absent a
judicial determination of incompetence.[4]
c. State law provides that persons subject to
detention under section 5150 of the Welfare and Institutions Code are entitled
to an evaluation of whether he or she “can be properly served without being
detained . . . . ”
If so, ‘he or she shall be
provided evaluation, crisis intervention, or other inpatient or outpatient services on a voluntary basis.”[5]
d. State law provides that a person subject to
14-day detention under section 5250 of the Welfare and Institutions Code must
be “advised of the need for, but has not been willing or able to accept,
treatment on a voluntary basis.”[6]
The 14-day certification notice specifically references voluntary
hospitalization or “referral” to specified home and community-based services.[7]
(See
Attachment 1 – Notice)
e. Under section 5008(d) of the Welfare and
Institutions Code, “Referral”
is defined, in part, as “informing the person of available services, making
appointments on the person’s behalf, discussing the person’s problem with the
agency or individual to which the person has been referred, appraising the
outcome of referrals, and arranging for personal escort and transportation when
necessary.” Further, “[r]eferral shall be considered complete when the agency or
individual to whom the person has been referred accepts responsibility for
providing the necessary services.”
Finally, “[a]ll persons shall be advised of
available pre-care services which prevent initial recourse to hospital
treatment or aftercare services which support adjustment to community living
following hospital treatment.” (Section 5008(d)).
f. A person may be detained
for up to one year on LPS conservatorship only if a treating professional
determines that the proposed conservatee “is unwilling to accept, or incapable
of accepting, treatment voluntarily . . . .”[8]
g. The Americans with Disabilities Act and Olmstead decision require provision of
services in the most integrated setting and reasonable modifications in
programs to ensure integration of persons with psychiatric disabilities in the
community. The U.S.
Supreme Court has ruled that public entities such as county mental health
departments have a duty to provide home and community-based services to
individuals who would otherwise be in a facility when: (i) the assistance would
appropriately meet the person’s needs, (ii) the person prefers or does not
oppose the assistance, and (iii) the assistance could be reasonably provided.[9]
3. Provision
of Home and Community-Based Services Available under State Law
a.
Home and
Community-based services that are available under state law on a voluntary
basis include:
(i)
Mental
Health Services Act (MHSA) services “will be provided to severely mentally ill
children . . . . ” and “shall be available to adults
and seniors with severe illnesses… ”[10]
(See Attachment 2 for the provision
of MHSA services)
(ii)
Medically
necessary Medi-Cal Specialty Mental Health Services for Medi-Cal eligible
persons (See Attachment 3)
(iii)
Housing
Programs
(iv)
Peer and
Self-Advocacy Services
(v)
(vi)
Medi-Cal
and other Physical Health Care Services
(vii)
Substance
Abuse Services
(viii)
Educational
Services
(ix)
Vocational
Services
(x)
Transportation
Services
(xi)
Legal Services.
b.
These
home and community-based services must both be tailored
to individual needs and be administered in a manner that affords reasonable
access. Rules or policies must be reasonably modified to ensure access.
ATTACHMENT
1 - § 5252. Necessity for, and form of, notice of
certification
A notice of certification is required for all persons certified for intensive treatment pursuant to Section 5250 or 5270.15, and shall be in substantially the following form (strike out inapplicable section):
The authorized agency providing evaluation services in the County of ________ has evaluated the condition of:
[name, address, age, sex, marital status]
We the undersigned allege that the above-named person is, as a result of mental disorder or impairment by chronic alcoholism: (1) A danger to others, (2) A danger to himself or herself, (3) Gravely disabled as defined in paragraph (1) of subdivision (h) or subdivision (l) of Section 5008 of the Welfare and Institutions Code.
The specific facts which form the basis for our opinion that the above-named person meets one or more of the classifications indicated above are as follows:
(certifying persons to fill in blanks) ______________________________
[Strike out all inapplicable classifications.]
The above-named person has been informed of
this evaluation, and has been advised of the need for, but has not been able or
willing to accept treatment on a voluntary basis, or to accept referral to, the
following services:
________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
We, therefore, certify the above-named person to receive intensive treatment related to the mental disorder or impairment by chronic alcoholism beginning this ______ day of _________, 20___, in the intensive treatment facility herein named __________
__________
(Date)
Signed _____________________________________________________
Signed _____________________________________________________
Countersigned _______________________________________________
(Representing facility)
I hereby state that I delivered a copy of this notice this day to the above-named person and that I informed him or her that unless judicial review is requested a certification review hearing will be held within four days of the date on which the person is certified for a period of intensive treatment and that an attorney or advocate will visit him or her to provide assistance in preparing for the hearing or to answer questions regarding his or her commitment or to provide other assistance. The court has been notified of this certification on this day.
Signed____________________
ATTACHMENT 2 –
mENTAL hEALTH seRVICES aCT pROGRAMS AND SERVICES under Welfare and Institutions
Code SEctions 5801, 5802 and 5806
Section 5801(b) The underlying philosophy for these systems of care includes
the following:
. . . .
(4)
Seriously mentally
disordered adults and older adults should have an interagency network of
services with multiple points of access and be assigned to a single person or
team to be responsible for all treatment, case management, and community
support services.
(5) The client
should be fully informed and volunteer for all treatment provided, unless
danger to self or others or grave disability requires temporary involuntary
treatment.
(6) Clients and families
should directly participate in making decisions about services and resource
allocations that affect their lives.
. . . .
(9) For the majority
of adults and older adults, treatment is best provided
in the client’s natural setting in the community. Treatment, case management, and community
support services should be designed to prevent removal
from the natural environment to more restrictive and costly placements.
. . . .
(11) State and
county government agencies each have responsibilities and fiscal liabilities
for seriously emotionally disordered adults and seniors.
Section 5802(a)
. . . .
(1) A comprehensive
and coordinated system of care includes community-based treatment,
. . . case management, and interagency [coordination] . . . .
(2) [Services come
from] . . . many different state and local agencies, particularly criminal
justice, employment, housing, public welfare, health and mental health. In a system of care
these agencies collaborate in order to deliver integrated and cost-effective
programs.
. . . .
(4) System of care
services which ensure culturally competent care for persons with severe mental
illnesses in the most appropriate, least restrictive level of care necessary to
achieve the desired performance outcomes.
Section 5806(a)
[Desired performance
outcomes enable adults with severe mental illness to reduce symptoms
which impair their ability to live independently, work, maintain
community supports, care for their children, stay in good health, not abuse
drugs or alcohol, and not commit crimes.
State standards must include planning for services including outreach,
services design, and evaluation strategies that consider cultural, linguistic,
gender, age and special needs of minorities in the target population.]
(2)
. . . . Provision shall be made for staff with the cultural background and
linguistic skills necessary to remove linguistic barriers to mental health
services due to limited English speaking ability and cultural differences. . .
.
(3) Provision shall be made for services to meet the needs of target
population clients who are physically disabled.
(4) Provision shall be made for services to meet the special needs of
older adults.
(5)
Provision for family support and consultation services, parenting support and
consultation services, and peer support or self-help group support, where
appropriate.
. . . .
(b)Each client shall
have a clearly designated mental health case manager or multidisciplinary
treatment team who is responsible for providing or assuring needed
services. Responsibilities include
complete assessment of the client’s needs, development of the client’s personal
services plan, linkage with all appropriate community services, monitoring of
the quality and follow-through of services, and necessary advocacy to ensure
each client receives those services which are agreed
to in the personal services plan. Each
client shall participate in the development of his or her personal services
plan, and responsible staff shall consult with the designated conservator . . .
and, with the consent of the client, consult with family and other significant
persons as appropriate.
(c) The individual
services plan shall assure that . . . [system of care clients receive services which are designed to:
1.
Reduce
the disabling conditions of mental illness.
2.
Live in
the most normal housing feasible in the local community.
3.
Have an
adequate income and an appropriate level of work or vocational training.
4.
Are in good health.
5.
Have a
support system, with friendships and participation in community activities.
6.
Have
freedom from dangerous, addictive substances.
7.
Maintain
socially responsible behavior.
8.
Obtain
an appropriate level of education and learning.
9.
Receive
culturally appropriate services.
10.
Receive
gender and age appropriate services.]
Section 5878.3
(a) [Children with
severe mental illness, as defined under Welfare and Institutions Code sections
5878.2 and subdivision (a) of section 5600.3,] for whom services under any
other public or private insurance or mental health or entitlement program is
inadequate or unavailable . . . [shall be offered services by the county mental
health program.] Other entitlement
programs include but are not limited to Medi-Cal, child welfare, and special
education programs. The [MHSA] funding
shall cover only those portions of care that cannot be paid
for with public or private insurance, or other mental health funds or
other entitlement programs.
(b) Funding shall be
sufficient to ensure that counties can provide each child served all of the
necessary services set forth in the applicable treatment plan, including
services where appropriate and necessary to prevent an out of home placement .
. . .
ATTACHMENT 3 -
Medi-Cal specialty mental health services available as an alternative to
hospitalization
Article 2. Definitions,
Abbreviations and Program terms
. . . .
Adult Residential
Treatment – Rehabilitative
services provided in a non-institutional, residential setting,
. . . for beneficiaries who would be at risk of hospitalization or other
institutional placement if they were not in a residential treatment
program. The service is available 24
hours a day, seven days a week. Service
activities include assessment, plan development, therapy, rehabilitation and collateral.
(
ASSESSMENT – Service activity that may include clinical analysis of the history
and current status of the beneficiary’s mental, emotional, or behavioral
disorder; relevant cultural issues and history; diagnosis; and the use of
testing procedures. (
. . . .
COLLATERAL – A service activity to a significant support person in a
beneficiary’s life with the intent of improving or maintaining the mental
health status of the beneficiary. The beneficiary may or may not
be present for this activity. The
activity may include helping significant support persons to understand and
accept the beneficiary’s condition and involving them in service planning and
implementation of service plan(s).
Family counseling or therapy that is provided
on behalf of the beneficiary is considered collateral. (
. . . .
CRISIS RESIDENTIAL TREATMENT SERVICE - Therapeutic and/or rehabilitation services
provided in a 24-hour non-institutional residential treatment setting providing
a structured program as an alternative to hospitalization for beneficiaries
experiencing an acute psychiatric episode or crisis, and who do not present
medical complications requiring nursing care.
Individuals are supported in their efforts to
restore, maintain and apply interpersonal and independent living skills and
access community supports systems. This
is a structured, packaged program with services available day and night, seven
days a week. Service activities may
include assessment, plan development, therapy, rehabilitation, collateral and crisis intervention. (
CRISIS INTERVENTION - Subdivision (e) of section 5008 of the
Welfare and Institutions Code defines “Crisis intervention” as consisting of
“an interview or series of interviews within a brief period of time, conducted
by qualified professionals, and designed to alleviate personal or family
situations which present a serious and imminent threat to the health or
stability of the person or the family. The interview or interviews may be conducted in the home of the person or family, or on
an inpatient or outpatient basis with such therapy, or other services, as may
be appropriate. Crisis intervention may,
as appropriate, include suicide prevention, psychiatric, welfare,
psychological, legal, or other social services.” State regulations further provide that
“Crisis intervention” is a service lasting less than 24 hours to or on behalf
of a beneficiary for a condition that requires more
timely response than a regularly scheduled visit. The service includes but is not limited to
assessment, collateral and therapy.
Crisis intervention is distinguished from crisis
stabilization by being delivered by providers not eligible to deliver crisis
stabilization or who are eligible but deliver the service at a site
other than a provider site certified to provide crisis stabilization. (
CRISIS STABILIZATION - “Crisis Stabilization” means a service
lasting less than 24 hours, to or on behalf of a beneficiary for a condition which requires more timely response than a
regularly scheduled visit. Service
activities may include, but are not limited to, assessment, collateral and
therapy. Crisis stabilization must be
provided on site at a 24 hour health facility or
hospital-based outpatient program or at other provider sites which have been
certified by the department or a Mental Health Plan to provide crisis
stabilization services. (
. . . .
DAY REHABILITATION - “Day Rehabilitation” means a structured
program of rehabilitation therapy to improve, maintain or restore personal
independence and functioning, consistent with requirements for learning and
development, which provides services to a distinct group of beneficiaries and
is available at least three hours and less than twenty-four hours each day the
program is open. Service activities may
include, but are not limited to, assessment, plan development, therapy,
rehabilitation and collateral.
(
DAY TREATMENT INTENSIVE - “Day Treatment Intensive” means a structured,
multi-disciplinary program of therapy which may be an
alternative to hospitalization, avoid placement in a more restrictive setting,
or maintain the beneficiary in a community setting, with services available at
least three hours and less than twenty-four hours each day the program is
open. Service activities may include,
but are not limited to, assessment, plan development, therapy, rehabilitation
and collateral.
(
. . . .
EARLY AND PERIODIC SCREENING, DIAGNOSIS AND
TREATMENT (EPSDT) SUPPLEMENTAL MENTAL HEALTH SERVICES - “EPSDT Supplemental Services” means those
services defined in Title 22, Section 51184, that are provided to beneficiaries
under age 21 to correct or ameliorate the diagnoses listed in section 1830.205,
and that are not otherwise covered services (e.g., Therapeutic Behavioral
Services). (
. . . .
MEDICATION SUPPORT SERVICES - “Medication Support Services” means those services which include prescribing, administering,
dispensing and monitoring of psychiatric medications or biologicals which are
necessary to alleviate the symptoms of mental illness. The services may include evaluation of the
need for medication, evaluation of clinical effectiveness and side effects, the
obtaining of informed consent, medication education and plan development
related to the delivery of the service and/or assessment of the beneficiary. (
. . . .
MENTAL HEALTH SERVICES - “Mental Health Services” means those
individual or group therapies and interventions that are designed to provide
reduction of mental disability and improvement or maintenance of functioning
consistent with the goals of learning, development, independent living and
enhanced self-sufficiency and that are not provided as a component of adult
residential services, crisis residential treatment services, crisis
intervention, crisis stabilization, day rehabilitation, or day treatment
intensive. Service activities may include but are not
limited to assessment, plan development, therapy, rehabilitation, and
collateral.
(
. . . .
PLAN DEVELOPMENT - “Plan Development” means a service
activity for development of client plans, approval of client plans, and/or
monitoring of a beneficiary’s progress. (
. . . .
PSYCHIATRIST SERVICES - “Psychiatrist Services” means services
provided by licensed physicians, within their scope of practice, who have
contracted with the MHP to provide specialty mental health services or who have
indicated a psychiatrist specialty as part of the provider enrollment process
for the Medi-Cal program, to diagnosis or treat a mental illness or
condition. For the purposes of this
chapter, psychiatrist services may only be provided by
physicians who are individual or group providers.
(
PSYCHOLOGIST SERVICES - “Psychologist Services” means services
provided by licensed psychologists, within their scope of practice, to diagnose
or treat a mental illness or condition.
For the purposes of this chapter, psychologist
services may only be provided by psychologists who are individual or group
providers. (
. . . .
REHABILITATION - “Rehabilitation” means service activity
which includes assistance in improving, maintaining, or restoring a
beneficiary’s or group of beneficiaries’ functional skills, daily living
skills, social and leisure skills, grooming and personal hygiene skills, meal
preparation skills, and support resources; and/or medication education.
(
. . . .
TARGETED CASE MANAGEMENT/BROKERAGE - Services that assist a beneficiary to
access needed medical, educational, social, prevocational, vocational,
rehabilitative, or other community services.
The service activities may include communication, coordination, and
referral; monitoring service delivery to ensure beneficiary access to service
and the service delivery system; monitoring of the beneficiary’s progress; and
plan development. (
THERAPY - “Therapy” means a service activity which is
a therapeutic intervention that focuses primarily on symptoms reduction as a
means to improve functional impairments.
Therapy may be delivered to an individual or
group of beneficiaries and may include family therapy at which the beneficiary
is present. (
[1]
[2] O’Conner v.
Donaldson (1975) 422 U.S. 563, 577 (“A finding of
‘mental illness’ alone cannot justify a State's locking a person up against his
will and keeping him indefinitely in simple custodial confinement. . . . In short, a State cannot constitutionally confine, without more, a
nondangerous individual who is capable of surviving safely in freedom by
himself or with the help of willing and responsible family members or
friends.”); a person cannot be certified as gravely disabled if he or she is
capable of safely surviving in freedom with the help of willing and responsible
family members, friends or third parties. Conservatorship of Early (1983) 35
Cal.3d 244;
[3]
[4]
[5]
[6]
[7]
[8]
[9] 42 U.S.C. section 12101 et seq.; Olmstead v. L.C., 527
[10]