Home & Community-Based Services for Individuals Subject to Temporary LPS Conservatorship - An Unfulfilled Promise?
Home & Community-Based Services for Individuals Subject to Temporary LPS Conservatorship - An Unfulfilled Promise?
This pub tells you about policies county public guardians and conservators use. It tells you about ones used for people on temporary conservatorship under the Lanterman-Petris-Short Act. This is for people with mental health disabilities. The pub looks at assessments. It looks at placing people where they can live as freely as possible. It has ideas to make sure people get help where they live.
This report analyzes the written policies and practices adopted by county public guardians or conservators concerning their processes for the provision of individualized assessment, services and placement in the least restrictive alternative setting for individuals subject to temporary conservatorship under the Lanterman-Petris-Short (LPS) Act.1 The temporary conservatorship process (also known as “T-Con”) can result in a significant loss of personal liberty and autonomy. In light of infringement on these personal rights, the LPS Act defines the authority for temporary conservatorships, and specifies an important set of protections for individuals subject to the T-Con process.
Our report focuses on county policies in two key areas: (1) assessment services and (2) placement in the least restrictive, most integrated setting appropriate to individual need.2 We also consider related matters concerning visits with conservators, transportation to hearings, and potential conflicts of interest that we identified in review of the materials provided by the counties.3 We found deficiencies and this report offers a series of recommendations for redressing these deficiencies.
State law provides that individuals subject to temporary LPS conservatorship must be provided with services in the least restrictive setting, preferably in the individual’s home or the home of family or a friend. In addition, counties are obligated under a variety of state and federal programs to assess for and provide access to home and community-based mental health services. As a result, to fulfill their fiduciary role, county public guardians or conservators have a duty to ensure that individuals are provided with the home and community-based services for which they qualify. For example, county-funded crisis intervention, supported housing and other services may support individuals at home and keep them out of institutions.
These protections are consistent with the overall societal movement toward community integration of people with psychiatric disabilities. In 1990, Congress enacted the Americans with Disabilities Act (ADA) based on recognition that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.”4 Nine years later in Olmstead v. L.C., the Supreme Court held that Title II of the ADA prohibits the unjustified segregation of people with disabilities.5
California legal requirements to provide services in the least restrictive appropriate setting to individual need have evolved for over 30 years.6 These state and federal requirements provide clear mandates discussed further in this report (See Section 2 “Legal Background”).
Several general observations are apparent from the written policies and procedures provided by the counties. First, more than half of the counties lacked any written policy on the important issues of assessment and placement in the least restrictive, most integrated setting appropriate to individual need. Many of the patient protections in the LPS Act are expressed as general principles. Written policies are needed to provide specific guidance on how to implement these principles. This ensures clarity for patients and their advocates, as well as county staff.
Second, even among those counties with written policies, there is a lack of consistency and clarity. Some county provisions were exemplary and should be used as statewide models, while other provisions appear incomplete or inconsistent with the governing statute.
Third, we recognize that our survey may not reflect the actual practices in a county, only the written policies or lack thereof at the time of our requests. However, the county responses raise questions about whether they are complying with the statutory protections in the LPS Act by offering and providing home and community-based services “to the greatest extent in order to allow the conservatee to remain as independent and in the least restrictive setting as possible.”7 Because the temporary LPS conservatorship invokes such a significant deprivation of individual rights and autonomy, we should tolerate no uncertainty about whether counties are adequately protecting these core human rights.
This report contains eight (8) recommendations to state and county decision-makers to ensure that individuals subject to temporary LPS conservatorship receive assistance at home and in the community consistent with state law. The following outlines our recommendations which are discussed at greater length in the body of this report.
In coordination with stakeholders, including county patients’ rights advocates and individuals who are or have been subject to temporary or full LPS conservatorship:
- All counties should adopt written policies regarding the assessment and placement of individuals on temporary LPS conservatorship in the least restrictive, most integrated setting appropriate to individual need.
- These written policies should require that the T-Con investigator, or professional person recommending temporary conservatorship, consider, and offer to the potential conservatee, a list of home and community-based service alternatives through existing agencies (such as the sample included as Appendix B to this report), and a list of all placement options, including but not limited to placement in the individual’s home, that of a friend or relative, and supported housing. The written policy should also describe the roles and responsibilities of the public guardian or conservator in obtaining such assistance and placement options.
- These written policies should require that the investigator, or professional person recommending temporary conservatorship, discuss with the individual, and include in his or her report, the individual’s preferences for living arrangement (including the individual’s home, that or a friend or relative, and/or supported housing); the specific services required to support the person in this preferred living arrangement; and the actions by the public guardian or conservator needed to provide these services to the proposed conservatee.
- All counties should adopt written policies regarding the minimum frequency of public guardian or conservator visits to conservatees.
- All counties should adopt written policies regarding the obligation of public guardians or conservators to arrange transportation to enable conservatees to attend their court hearings, including transportation for conservatees who are placed in another county.
- All counties should adopt written policies regarding medical surrogacy standards that require the public guardian or conservator to act based on the express interests of the conservatee.
- All counties should adopt written policies that specify the responsibilities of each person or department for assessment and placement of conservatees, and the procedures to resolve disputes or conflicts of interest between these agencies or persons.
- All counties should track the placement of conservatees by type, length of stay, and, if applicable, name and licensing category, as well as make such information publicly available.
A. Federal Law Requires Provision of Services in the “Most Integrated Setting Appropriate to Individual Need.”
Under Title II of the federal Americans with Disabilities Act (ADA), Congress prohibited discrimination against individuals with disabilities by public entities: “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”8
The Title II regulations require counties to provide mental health services “in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”9 The “most integrated setting” is one that “enables individuals to interact with nondisabled persons to the fullest extent possible…”10
The Supreme Court held that public entities are required to provide home and community-based services to individuals with disabilities when (a) such services are appropriate; (b) the affected individual does not oppose community-based assistance; and (c) community-based services can be reasonably accommodated, taking into account the resources available to the entity and the needs of others who receive assistance through the entity.11
B. California Statutes and Constitution Provide Important Protections to Conservatees, Including The Right to an Assessment and Placement in the “Least Restrictive” Setting.
1) Mental Health System Principles and Values
Since 1991, the mission of California’s community mental health system has been to enable persons with psychiatric disabilities, including children, “to access services and programs that assist them, in a manner tailored to each individual, to better control their illness, to achieve their personal goals, and to develop skills and supports leading to their living the most constructive and satisfying lives possible in the least restrictive available settings.”12 Local governments should provide mental health services and rehabilitation “in the most appropriate and least restrictive environment, preferably in [persons’] own communities.”13
2) LPS Conservatorship
The LPS Act, which took effect in 1969, was intended to end the inappropriate, indefinite, and involuntary commitment of persons with psychiatric disabilities.14 It includes provisions for conservatorship for persons deemed “gravely disabled.”15 A temporary conservator may have the power to involuntarily commit a conservatee to a locked psychiatric institution for up to six (6) months pending the outcome of the trial on the issue of grave disability. 16 The California Supreme Court has recognized that an LPS “conservatee may be subjected to greater control of his or her life than one convicted of a crime.”17 Moreover, a grave disability finding carries stigma that threatens his or her reputation and risks discrimination “in seeking employment, applying to schools or meeting old acquaintances”.18
The purpose of LPS conservatorship is “to provide individualized treatment, supervision, and placement.”19 Under the statute, the preferred arrangements for a temporary conservatee are those that “allow the person to return to his [or her] home, family or friends.”20 The court must “order the temporary conservator to take all reasonable steps to preserve the status quo concerning the conservatee’s previous place of residence.”21
3) Constitutional Rights
Undesired institutional care also impinges on the individual’s fundamental constitutional due process rights. In Edward W. v. Lamkins,22 for example, the court stated:
- One private interest plainly affected by appointment of a conservator is the conservatee's right to liberty. It is the constitutional right to liberty that prohibits a state from confining to an institution an individual who is capable of surviving safely in freedom, either alone or with the assistance of family and friends.23
Since a conservator has the power to select care for a conservatee in an institution providing intensive treatment or other facility specified in Section 5358, “the appointment of a temporary conservator affects the conservatee’s interest in personal autonomy as well as in liberty.”24
In sum, the right of a temporary conservatee to services in the “least restrictive” setting appropriate to individual need is protected under both general state statutory provisions governing the mental health system and specific LPS conservatorship provisions, as well as under the California Constitution.
A. Assessment – Unclear what Options are Being Offered and Discussed
1) Duty to Consider and Offer Voluntary Alternatives
The imposition of a temporary LPS conservatorship begins with an assessment, which includes an investigatory report or professional recommendation. Counties must designate the agency or agencies to conduct conservatorship investigation, which may be the public guardian.25
The LPS Act creates protections for the individual at this first step, requiring that the officer providing conservatorship investigation consider “all available alternatives to conservatorship”, and can “recommend conservatorship to the court only if no suitable alternatives are available” (Emphasis added).26 The investigation report “shall be comprehensive and shall contain all relevant aspects of the person’s medical, psychological, financial, family, vocational and social condition.”27
A full LPS conservatorship requires a hearing and other judicial protections. In contrast, a temporary conservatorship can be imposed for up to 30 days without a court hearing, based simply on the results of the investigation report, or even based on sworn statement from a professional person recommending a conservatorship.28 The professional statement must provide reasons why a conservatorship is required, including a determination that the proposed conservatee “is unwilling to accept, or incapable of accepting, treatment voluntarily.”29
While the “treatment” offered by a professional person recommending conservatorship is not specified under section 5352, other sections make clear an obligation to provide those services necessary to avoid institutions. To promote the intent of the LPS, assessment by an investigator or professional person recommending conservatorship should include “the full use of all existing agencies” to serve a proposed temporary conservatee at home and in the community “and to prevent…unnecessary [institutional] expenditures…”30 Further, the LPS Act requires that “[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.”31
A temporary conservator has a duty to “determine what arrangements are necessary to provide the person with food, shelter and care pending the determination of conservatorship.”32
In accordance with state law, the full array of existing home and community-based service options should be considered for and offered to an individual subject to temporary LPS conservatorship where appropriate to individual need.33
2) Policies Indicate Few Specified Home & Community Options
Of the fifty-eight (58) counties, thirty-three (33) reported that they had no written policies and practices on assessment for and provision of services in the least restrictive, most integrated setting appropriate to individual need.34 The absence of any written policies on the issue is of concern. The legal framework and statutory preconditions for the imposition of temporary conservatorship are complex and carefully calculated to ensure that fundamental rights and liberties are denied only when there are no alternatives. However, the actual implementation of this framework and protections will vary in the counties. Without detailed guidance on how these responsibilities must be carried out, each investigator, professional or conservator may rely on his or her own ideas about what the statute means. We acknowledge that in some counties, staff may exercise their discretion so as to perfectly implement all the statutory protections. However, this approach may lack reliance. Written policies help ensure that all conservatees are provided with the rights and protections required under the LPS Act.
Turning to the twenty-five (25) counties that did provide assessment policies, some included good general provisions. For example, Kern County provided a policy stating that “the community has a responsibility to develop a continuum of services to meet [conservatees’] needs.” Los Angeles County provided a policy stating that the Public Guardian’s philosophy is “to maintain a conservatee at the least restrictive level of care possible…” Further, “individuals should retain their autonomy and remain in their own homes.” In addition, the role of the Deputy Public Guardian is, in part, to “provide direct services and/or coordinate the services of other community resources to meet the needs of conservatees.” 35
However, most of the policies provided lack specificity on home and community-based services to allow the person to return to his or her home. Nor do they specify the pre-care and post-hospital services that the individual must be advised of under subsection (d) of Section 5008(h).36 For example, none of the records provided by the counties describe the full scope of Medi-Cal Specialty Mental Health Services.37 Additionally, the records provided by the counties do not detail the broad array of services available under Children’s, Adult, or Older Adult Systems of Care.38
Some county documents refer to one or several home and community-based services. For example, Los Angeles County provided policies referencing “case management” services. Colusa County provided a policy noting services “including psychotherapy, case management, day treatment, medication monitoring, and hospitalization when appropriate.”
Further, San Benito County provided a document stating in part: “An LPS Conservatorship is a ‘last resort’ measure; all attempts should be made to treat the individual at a lower level of care. . . . [T]he requesting party will contact the SBCBH Case Manager who is responsible for LPS Conservatorship investigations. . . . [T]he LPS Case Manager will also visit the prospective conservatee at the hospital to determine if the conservatorship request is valid or if the individual could be maintained at a lower level of care (e.g., intensive case management, doctor visits at the mental health clinic, therapy, etc.)” (emphasis added).
Reference to several but not all specific community support services suggests that the omitted services may not be provided to a conservatee. To ensure that all existing community service agencies will be discussed with the proposed conservatee and offered in the temporary LPS conservatorship process, counties should adopt written policies that include a comprehensive list of services, such as that included in Appendix B to this report.39
B. Placement – Unclear What Placements are Provided
County placement policies obtained indicate that some individuals subject to temporary LPS conservatorship may not be placed in the least restrictive setting appropriate to individual need. Over half of California counties (30 of 58) reported not having written policies and procedures on the placement of temporary LPS conservatees in the least restrictive, most integrated setting appropriate to individual need. As discussed above, without written policies on this point, there is no assurance that counties are properly adhering to the protections required by the LPS Act.
Twenty-eight (28) counties did provide copies of their policies.40 Of these, some are good models, as they expressly recognize the legislative preference that an individual be placed in his or her own home or that of a relative or friend.41
At least two counties, however, appear not to allow a temporary or full LPS conservatee to receive assistance at home. Orange County provided a policy stating, in part: “The Public Guardian maintains a general policy of placing LPS conservatees only in licensed facilities such as State Hospitals, TRCs, IMDs, skilled nursing facilities, and board & care facilities” (emphasis added). San Bernardino County provided a policy also indicating placement only in a licensed facility: “Public Guardian (PG) has been directed by the State not to place conservatees in unlicensed facilities.”42
In general, the records provided by the counties refer to placement in the “least restrictive” setting, as determined by the court under Section 5358(c)(1).
Yet, many policies provided by the counties focus on placement in locked facilities. For example, Contra Costa County provided a policy including the medical necessity criteria for such placement as follows:
- Current evidence of symptoms, including, but not limited to depression, anxiety, hypomania, delusions, or hallucinations, that create barriers to community placement, and/or due to behaviors demonstrating an inability of the consumer to be managed in a less restrictive, less structured environment.
Under the policy, referral for such placement requires evaluation and assessment of “other possible community placements”, but the array of alternative placements is unspecified.43
Other records provided also refer to a treatment team meeting process to consider placement options. For example, Kern County provided a policy including that if anyone on the team opposed proposed locked facility placement, the matter could be taken to the county’s dispute resolution process. Again, however, this policy does not list the array of home and community-based services and placements to be considered as an alternative to locked facility placement, nor is it clear whether such information is provided to the affected individual.
Significantly, none of the written policies provided by the counties describe supported housing as a possible living arrangement. Supported housing is a home and community-based setting available under the Mental Health Services Act (MHSA) and other programs.44 The State Department of Mental Health (DMH) has defined the target population for the MHSA Housing Program, as follows:
- Adults/older adults with serious mental health illness as defined under California Welfare and Institutions Code Section 5600.3(b); or
- Children/adolescents with serious emotional disturbance as defined under California Welfare and Institutions Code Section 5600.3(a); and
- Persons who are homeless or at risk of homelessness.45
Individuals subject to a temporary or full LPS conservatorship would likely qualify for supported housing under the MHSA Housing Program because they meet the above-referenced “target population” criteria and are homeless or “at risk of being homeless”.
The California Legislature has declared “that there is an urgent need to increase access to supportive housing” and that such housing is “an effective and cost-efficient method of serving persons with disabilities who wish to live independently.”46 County policies should specify explicitly that such programs must be considered for, and made available to, individuals subject to temporary LPS conservatorship.47
We recommend that all counties adopt written policies regarding the assessment and placement of individuals on temporary LPS conservatorship in the least restrictive, most integrated setting appropriate to individual needs. These written policies should require that the T-Con investigator, or professional person recommending temporary conservatorship, consider and offer to the potential conservatee, a list of home and community-based service alternatives through existing agencies (such as the sample included as Appendix B to this report), and a list of all placement options, including but not limited to placement in the individual’s home, that of a friend or relative, and supported housing. The written policy should also describe the roles and responsibilities of the public guardian or conservator in obtaining such assistance and placement options.
C. Unclear How Often Public Guardian or Conservator Visits a Conservatee
While we did not request records from county public guardians or conservators on the frequency of visits to LPS conservatees, the issue arose in the course of our review of the documents provided. The records provided by the counties indicate that there is no uniform standard on public guardian or conservator visits to a conservatee.
The frequency of visits relates to the conservator’s ability to help obtain needed services and supports for the conservatee’s transition to a less restrictive placement.
Some counties appear to provide for early visits. For example, Merced County provided a policy on interviewing the proposed conservatee, spouse or registered domestic partner and relatives within the first degree pursuant to temporary conservatorship investigation.48
On the other hand, Nevada County provided a record stating that it may not be possible for a Deputy Public Guardian to visit the proposed conservatee prior to a temporary conservatorship petition if the proposed conservatee is placed in an out of county hospital.49
Some records provided by the counties specify a visit to the conservatee within one month if the person is in an “unfamiliar placement.”50 Siskiyou County provided a policy for a visit to an individual in an unfamiliar placement within 60 days of placement.
Other records provide for visits at least on a quarterly basis (e.g., Colusa, Riverside, and San Benito Counties).51
Some county documents require visits at least every six (6) months or as specified in the treatment plan (e.g., Placer, Sierra, and Siskiyou).52 Kern County provided a policy that there be monthly visits for conservatees placed at facilities within the county, that there be quarterly visits for conservatees placed out of county, and that there never be more than 6 months between visits.
Thus, under some policies provided by the counties, it is possible that a temporary LPS conservatee would not be visited by the county conservator throughout the potential full duration of the temporary conservatorship, i.e., up to six (6) months.53
Limited contact between an individual subject to temporary (or full) LPS conservatorship and his or her public guardian or conservator raises questions over the conservator’s ability to fulfill his or her fiduciary duties, including but not limited to understanding the conservatee’s express interests.54
We recommend that all counties adopt written policies regarding the minimum frequency of public guardian or conservator visits to conservatees.
D. Unclear Who Arranges and Provides Transportation for a Conservatee to Attend Court Hearings
We identified another issue in the review of documents provided by the counties. The records provided by the counties indicate that there are no uniform standards on public guardian or conservator duties on arranging and obtaining funding for transportation. This is of particular importance to conservatees placed out of the county, which further limits opportunities to interact with family, friends, and within known communities.55
One essential need for transportation is to hearings on the conservatorship. The California Supreme Court has held “that Probate Code section 1825(a)(3)’s procedure pertaining to a proposed conservatee’s production and attendance at the hearing must be followed in LPS cases.” In re Conservatorship of Person of John L. (2010) 48 Cal.4th 131, 146-47.56 A conservatee’s presence at a hearing guards against potential abuse in the process. (Id.).57 Additionally, “for clients themselves, direct participation in the process by appearing in court goes a long way to dispelling the fears that naturally arise in connection with protective proceedings.” CEB, California Conservatorship Practice, § 7.24 (June 2011).
Some records provided by the counties clearly address responsibility for arranging transportation. For example, a Memorandum of Understanding Between Glenn County Public Guardian and Glenn County Health Services Agency states, in part: “Conservator shall coordinate transportation for conservatee for all court appearances.”
Similarly, a Mariposa County policy states, in part: “The Public Guardian/Conservator Social Worker will coordinate the attendance of the proposed conservatee and any persons required for testimony and advise the Office of County Counsel if subpoenas are needed.”
Some records provided by the counties are less clear. For example, an Interagency Agreement Between the Colusa County Public Guardian and Department of Behavioral Health Services provides, in part, that the Public Guardian’s duties and responsibilities include “[s]cheduling and preparation for court appearances for LPS hearings or other legal adjudication as may be required.” On the other hand, it further provides: “Scheduling and transporting conservatees for court appearances shall be the responsibility of the Department of Behavioral Health Services. Related costs will be charged to the conservatee.”58
Some policies provided by the counties indicate that a conservatee may not be transported to a court hearing due to reasons other than that he or she does not want to attend. For example, Merced County provided a record stating, in part: “A conference court hearing may be requested by Mental Health if conservatee cannot [sic] be transported to this county due to distance or volatility” (emphasis added).
San Diego County provided a document that also suggests that distance may influence whether a conservatee physically attends a hearing. The policy, titled “Out-of-County Placements for Clients on LPS Conservatorship” states, in part, that no out-of-county placements could take place absent several conditions including as follows: “If the client is on a temporary conservatorship, the Public Defender must agree to waive client’s presence in Court for the permanent conservatorship hearing or arrangements have been confirmed for a video conference hearing or transportation to Court.”
The vital interests of persons subject to LPS conservatorship in having the opportunity to physically attend and participate in the court processes affecting his or her life require clear standards on responsibility for arranging and funding transportation to court hearings.59
We recommend that all counties adopt written policies regarding the obligation of public guardians or conservators to arrange transportation to enable conservatees to attend their court hearings, including transportation for conservatees who are placed in another county.
E. Unclear How Counties Guard Against Potential Conflicts of Interest between Conservatee and the Conservator
There are at least two potential conflicts of interest between an individual subject to temporary or full LPS conservatorship and his or her public guardian or conservator. First, there may be disagreement over individualized treatment and placement for the conservatee. Second, there appears to be a conflict of interest inherent in the dual role of a public guardian or conservator as having a fiduciary duty to the conservatee and being an employee of the county, which has financial and programmatic responsibility for providing medically necessary mental health services to the conservatee. These potential conflicts and county policies to avoid them are discussed further below.60
1) Duty to Protect a Conservatee’s Express Interests
One of the overarching principles of the state’s mental health system is that services be “client-directed”. As such, individuals with psychiatric disabilities “[a]re the central and deciding figure, except where specifically limited by law, in all planning for treatment and rehabilitation based on their individual needs.”61
Even if a person is on temporary LPS conservatorship, a duly authorized conservator has a duty to make decisions “in accordance with the conservatee’s individual health care instructions, if any, and other wishes to the extent known to the conservator.”62 The California Uniform Health Care Decisions Act has a similar provision for medical decision-making by a health care agent.63
“Best Interest Standard: The Best Interest Standard mirrors the view that the guardian’s duties are akin to those imposed on a parent. Under this standard, the charge of the guardian is to make an independent decision [about] the ward’s best interest as defined by more objective, societally shared criteria. . . .
“Substituted Judgment Standard: The principle of Substituted Judgment requires the surrogate to attempt to reach the decision the [conservatee] would make if that person were able to choose. Use of this model for decision making allows the guardian to make decisions in accord with the incompetent person’s own definition of well-being. . . . [T]his type of decision making should be utilized if possible, [and] imposes a duty on guardians to attempt to find this information.”
Further, under Probate Code section 2113, “[a] conservator shall accommodate the desires of the conservatee, except to the extent doing so would violate the conservator’s fiduciary duties to the conservatee or impose an unreasonable expense on the conservatorship estate.”
Some records provided by the counties recognize the need to protect the express interests of the conservatee. For example, Stanislaus County provided “Medical Surrogacy Standards”, which discuss how the “Substituted Judgment Standard” is based on the express interests of the conservatee and differs from the “Best Interest Standard.”64 Los Angeles County provided a policy stating, in part: “[a]s far as possible, individuals should retain their autonomy and remain in their own homes.” Butte and Kern Counties produced similar documents recognizing the need to “allow conservatees to develop their own life goals and to be an integral part of their own recovery planning whenever possible.” Several counties provided policies that seek to honor the safe and reasonable wishes of the conservatee.
Based on the records provided by the counties, it appears that most of the county policies that reference the issue do so in a general way.65 The “Medical Surrogacy Standards” adopted by Stanislaus County, however, are more specific. These standards could be considered as a model by other counties that have not yet adopted similar policies.
We recommend that all counties adopt written policies regarding medical surrogacy standards that require the public guardian or conservator to act based on the express interests of the conservatee. These written policies should require that the investigator or professional person recommending temporary conservatorship discuss with the individual and include in his or her report the individual’s preferences for living arrangement (including individual’s home, that or a friend or relative, supported housing), the specific services required to support the person in this preferred living arrangement, and the actions by the public guardian or conservator needed to provide these services to the proposed conservatee.
2) Duty to Avoid Real Conflict of Interest
State law protects against conflicts of interest in the appointment of conservators. The LPS Act specifies that “[n]o person…or agency shall be designated as conservator whose interests, activities, obligations or responsibilities are such as to compromise his or their ability to represent and safeguard the interests of the conservatee.”66
State law further provides that a county board of supervisors must not appoint any person or agency as “public guardian whose agency functions present real conflict with the functions of conservatorship investigation or administration.”67
Additionally, the LPS Act requires conservatorship investigation and administration independent from any person or agency providing mental health treatment for conservatees where “it has been demonstrated that the existing arrangement creates a conflict of interest . . .”68 Further, the statute requires the execution of a written agreement or protocol between the agency responsible for mental health treatment and the agency responsible for conservatorship investigation and administration.69 The agreement must specify the responsibilities of each person or agency, and the procedure to resolve disputes or conflicts of interest between agencies or persons.70
The Ninth Circuit Court of Appeal recently found that a conflict arises where the same entity makes coverage decisions and pays for the benefits.71 That case concerned Blue Shield’s denial of a request by a woman with anorexia nervosa for payment of residential treatment. It focused on her insurance company’s responsibilities under California’s Mental Health Parity Act. According to the Court, the dual role of making coverage determinations and paying for assistance “always creates a conflict of interest.” (Id.). The Court found that “[t]he conflict is less important when the administrator took ‘active steps to reduce potential bias and to promote accuracy’.” (Id.)
Counties have a similar dual role in the provision of Medi-Cal Specialty Mental Health Services. They make coverage determinations and pay for assistance. The issue of conflict of interest may especially be of concern in counties where the county mental or behavioral health director also serves as the public guardian or conservator.
Some records provided by the counties include written agreements or protocols to minimize the risk of conflicts. For example, a Memorandum of Understanding between Glenn County Public Guardian and Glenn County Health Services Agency, was developed, in part, “to avoid conflict of interest . . . between two separate departments . . .”
Interagency agreements provided delineate respective roles for the public guardian and community mental health programs. For example, a Colusa County agreement requires the public guardian to determine and pursue entitlement programs, including Social Security, Medicare, and Medi-Cal, while the county behavioral health department is responsible for the development of an individual treatment plan for the conservatee.
Some documents provided by counties appear to address the dual role of the county behavioral or mental health department in making coverage decisions and paying for services. Glenn County provided a record stating, in part: “[a]ll services of the Mental Health Department shall be available to conservatee at the request of the Conservator.” Further, this policy recognizes that “[t]he success and effectiveness of the Conservatorship and Mental Health Programs are interdependent.”
We recommend that all counties adopt written policies that specify the responsibilities of each person or department for assessment and placement of conservatees, and the procedures to resolve disputes or conflicts of interest between these agencies or persons. Written policies and procedures that delineate operational roles and responsibilities consistent with the values, principles and requirements of the California Mental Health System would promote success and effectiveness of services, and minimize potential conflicts of interest.72
We also recommend that all counties track the placement of conservatees by type, length of stay, and, if applicable, name and licensing category, as well as make such non-identifying information publicly available. This would allow stakeholders to have a clearer understanding of resource allocation at the state and local level.
In sum, our analysis of the written policies and procedures on assessment for provision of services and placement in the least restrictive, most integrated setting appropriate to individual need seeks to fulfill the promise of the LPS Act. Our eight (8) recommendations are intended to ensure clarity on implementation of fundamental rights for state and county staff, as well as for individuals subject to temporary LPS conservatorship, their families, friends and advocates.
Disclaimer: This publication is legal information only and is not legal advice about your individual situation. It is current as of the date posted. We try to update our materials regularly. However, laws are regularly changing. If you want to make sure the law has not changed, contact DRC or another legal office.
- 1. California Welfare and Institutions Code §§ 5000 et seq. All statutory references herein are to the Welfare and Institutions Code unless otherwise specified.
- 2. Responsibility for individualized assessment, treatment and placement of individuals proposed for or under temporary LPS conservatorship is shared by various entities including: 1) county conservatorship investigators; 2) county behavioral health departments; 3) superior court judges; and 4) county public guardians or conservators. Each of these entities has a duty or duties to ensure that individuals with psychiatric disabilities receive assistance in the most integrated, least restrictive setting appropriate to individual need. However, this report focuses on the duties of the county public guardian or conservator with respect to his or her conservatee.
- 3. This report is based on information received pursuant to requests to each of the 58 counties under the California Public Records Act in 2010. We submitted requests concerning two issues. First, we requested information concerning advance notice to individuals subject to temporary LPS conservatorship. Those findings are discussed in a separate report by Disability Rights California, “Advance Notice for Individuals Subject to Temporary LPS Conservatorship—Denial of Statutory and Constitutional Rights” (March 2011). Second, we requested copies of county policies and practices on assessment for services and placement in the least restrictive, most integrated setting appropriate to individual need. The findings here are presented in the form of questions, rather than conclusions. Additional information may be specified in other county policies and practices not provided in response to our requests. Nonetheless, we raise the issues now because they are important and worth consideration by stakeholders at the local level.
- 4. 42 U.S.C. § 12101(a)(2).
- 5. 527 U.S. 581 (1999). See “Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C.” (http://www.ada.gov/olmstead/q&a_olmstead.htm) (“DOJ Statement”).
- 6. For example, the Community Residential Treatment Systems Act established alternatives to institutional care as the policy of the California mental health system in 1978. (See §§ 5670-5676.5). In 1988, the State Legislature found and declared that “there is a severe shortage of adequate facilities for [people with psychiatric disabilities] of all ages since the closing of the 48 out of 94 facilities in the mental illness program in 1968.” (§ 4026(a)(1), repealed by Stats.2004, c. 193 (S.B.111), sec. 213). Further, “these [individuals] are not receiving the care that they are entitled to.” (§ 4026(a)(3)). In addition, “this shortage is demonstrated by the current practice of placing [such individuals] in jails and in transferring them from county to county.” (§ 4026(a)(4)). In 1984, California began the development of “integrated systems of care” for children, adults and older adults with psychiatric disabilities. These systems of care served as a model for the landmark Mental Health Services Act (MHSA), which was a statewide ballot initiative (“Prop. 63”) approved by voters in 2004. MHSA programs and services must “be consistent with the philosophy, principles, and practices of the Recovery Vision for mental health consumers.” (§ 5813.5(d)). As a historical note, in 1991, the California Legislature shifted many responsibilities for the funding and provision of mental health services from the state to the counties through the Bronzan-McCorquodale Act. (See § 5600 et seq.) The act incorporated key components of the California Mental Health Master Plan and designated child, adult and older adult “target populations” for access to mental health services. (§§ 5600.3(a)(1) (children or adolescents) and 5600.3(b)(1) (adults and older adults)).
- 7. Probate Code § 1800(d). Probate Code provisions apply to LPS conservatorship except where the latter specifies otherwise. (See § 5350).
- 8. 42 U.S.C. § 12132.
- 9. 28 C.F.R. § 35.130(d).
- 10. 28 C.F.R. Pt. 35, App. B (2011) (addressing § 35.130).
- 11. Olmstead v. L.C., 527 U.S. at 607; see also DOJ Statement, at p. 2.
- 12. 12 § 5600.1.
- 13. § 5600.2(a)(4); individuals with psychiatric disabilities “[a]re the central and deciding figure, except where specifically limited by law, in all planning for treatment and rehabilitation based on their individual needs.” (§ 5600.2(a)(2)). Even where a conservatee has been adjudicated to lack capacity to make health care decisions, the conservator must make decisions based on the expressed wishes of the conservatee. (Probate Code § 2355(a), discussed further below at Section E(1), Duty to Protect a Conservatee’s Express Interests).
- 14. § 5001(a).
- 15. See § 5350 et seq. “Gravely disabled” generally is defined as: “[a] condition in which a person, as a result of a mental disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter.” (§ 5008(h)(1)(A)). Another definition of “gravely disabled” relates to a so-called “Murphy Conservatorship,” which involves a person found incompetent to stand trial under Section 1370 of the Penal Code. (See § 5008(h)(1)(B)). This reports focuses on individuals considered “gravely disabled” under Section 5008(h)(1)(A).
- 16. § 5352.1(c).
- 17. See Conservatorship of Roulet (1979) 23 Cal.3d 219, 228.
- 18. Id. 23 Cal.3d at 229.
- 19. § 5350.1.
- 20. § 5353.
- 21. Id.. Similarly, the preferred setting for an individual on full conservatorship is in his or her home or the home of a relative (§ 5358(c)(1)). If not placed in his or her home or the home of a relative, “first priority shall be to placement in a suitable facility as close as possible to his or her home or the home of a relative.” (Id.). A “suitable facility means the least restrictive residential placement available and necessary to achieve the purpose of treatment.” (Id.).
- 22. Edward W. v. Lamkins (2002) 99 Cal.App.4th 516 [122 Cal.Rptr.2d 1].
- 23. Id. at 530, 122 Cal.Rptr.2d at 11-12.
- 24. Id. at 534, 122 Cal.Rptr.2d at 15.
- 25. § 5351.
- 26. § 5354.
- 27. Id.; The conservatorship investigator has a duty to provide a copy of the comprehensive report to, among others, the proposed conservatee. (§ 5354). Such report, however, is not required prior to the establishment of a temporary conservatorship. (See § 5352.1).
- 28. A temporary conservatorship may be extended up to six months if the proposed conservatee demands a court or jury trial on the issue of whether he or she is gravely disabled. (§ 5352.1(c)).
- 29. § 5352.1(a); § 5352.
- 30. § 5001(f).
- 31. § 5008(d). Further,“[e]ach agency or facility providing evaluation services shall maintain a current and comprehensive file of all community services, both public and private. These files shall contain current agreements with agencies or individuals accepting referrals, as well as appraisals of the results of past referrals.” (Id.)
- 32. § 5353. Only the officer providing conservatorship investigation or other county employee, such as the public guardian or conservator, may act as the temporary LPS conservator. (§ 5352). As referenced above, the temporary conservator “shall give preference to arrangements which allow the person to return to his [or her] home, family or friends.” (§ 5353). See also Probate Code § 1800(d) (purpose of conservatorship is to “[p]rovide that community-based services are used to the greatest extent possible to allow the conservatee to remain as independent and in the least restrictive setting as possible”).
- 33. See Appendix B, Examples of Existing Home and Community-Based Options.
- 34. See Appendix A, Chart of County Documents Received.
- 35. Additional information may be specified in the county’s Case Management Referral Procedures referenced but not provided in response to our request.
- 36. While this issue requires further factual research, we raise the issue now because it is important and worth consideration by stakeholders.
- 37. Medi-Cal eligible individuals have an entitlement to receive medically necessary Specialty Mental Health Services. (See Cal. Code Regs. tit., 9 § 1810.247). Under the so-called “Rehab Option” amendment, Medi-Cal eligible persons have rights to – among other services – crisis residential treatment to prevent hospitalization and other institutional placement. (See Cal. Code Reg., tit. 9, § 1810.208). Service options that must be considered for individuals under age 21 include EPSDT Supplemental Specialty Mental Health Services (See Cal. Code Regs., tit. 9, § 1810.215; see also DMH Information Notice No.: 08-38, Therapeutic Behavioral Services). Both children, transition-age youth, adults and older adults may qualify for Individual Mental Health Rehabilitation (See Cal. Code Regs., tit. 9, § 1810.227; see also DMH Letter No: 01-01, One-To-One Mental Health Services) and Targeted Case Management (Cal. Code Regs., tit. 9, § 1810.249); See also §§ 5775-5780 (Mental Health Managed Care Contracts).
- 38. Sacramento County provided a record referring to Turning Point Integrated Service Agency (ISA). According to the Turning Point website, the ISA “is a full service partnership providing wraparound services to 150 clients with psychiatric disabilities who are transitioning from long-term hospitalizations.” (www.tpcp.org/ISA-Sacramento). It is unclear whether the ISA reference in the record provided by the county relates to financial responsibility if a Turning Point ISA member is placed in a locked facility, or whether Turning Point ISA or a similar program is considered for all individuals subject to temporary LPS conservatorship in the county.
- 39. Some counties provided records that appear expressly not to use all existing agencies for temporary LPS conservatees. For example, Santa Cruz County provided a record stating that the Assigned Deputy visits and evaluates “whether the Conservatee’s immediate needs for placement, home care, food and clothing are being met. . . . These actions may include but are not limited to: a. Arranging for home care (Probate) b. Arranging for appropriate placement (LPS, Probate) c. Arranging for clothing, if needed (LPS, Probate) d. Arranging for Meals on Wheels, if appropriate (Probate)” (emphasis in original). Thus, the county appears potentially not to require consideration of home care and home-delivered meals for individuals on temporary LPS conservatorship.
- 40. See Appendix A.
- 41. A Stanislaus County policy provides for “temporary LPS conservatee placement in the appropriate and least restrictive level of care” pursuant to Section 5353, which requires “preference to arrangements which allow the person to return to his [or her] home, family, or friends.”
- 42. This would apparently contravene the above-referenced provisions of the LPS Act. See also Health and Safety Code §§ 1536.1(c), 1504.5 and 1505 (exemptions to state licensing requirements).
- 43. The Contra Costa County record also discusses IMD/MHRC discharge planning, which states, in part: “the Long Term Care Utilization Review Coordinator (LTC-URC) shall meet regularly with the Consumer, and the IMD/MHRC multidisciplinary treatment team, i.e., Psychiatrist, Program Director, Director of Nursing, Conservator, etc. to discuss and/or identify the following: a. Socio-economic factors and/or consumer variables that may present barriers to discharge, (i.e., legal status, homelessness, lack of resources, age-related issues, lack of social support system, etc.) b. Community Referral(s): Independent Living, Return to former placement with family, or other significant support person(s), Board and Care, Skilled nursing referral etc. c. Specific action steps and/or strategies needed to provide the necessary help and support to the consumer.” (emphasis added) Such steps could both “prevent initial recourse to hospital treatment” as well as facilitate “aftercare services which support adjustment to community living following hospital treatment.” (See § 5008(d)). But such assistance to prevent locked facility placement is not specified in the county record provided.
- 44. See Steve Fields, “The Relationship Between Residential Treatment and Supported Housing in a Community System of Services”, 13 PSYCHOSOCIAL REHABILITATION J. 105-113 (1990).
- 45. “Homeless” means that the person is living on the streets or lacking a fixed and regular night-time residence. This includes living in a shelter, motel or other temporary living situation in which the individual has no tenant rights. MHSA Housing Program: Background, and Information about the Application, Commitment, and Funding Processes at 1 (February 1, 2011). Available at http://www.calhfa.ca.gov/multifamily/mhsa/termsheets/MHSATermSheet-highlighted.pdf. “At risk of being homeless” includes youth exiting the child welfare or juvenile justice systems; youth or adults discharging from crisis and transitional residential settings; hospitals, including acute psychiatric hospitals; psychiatric health facilities; skilled nursing facilities with special treatment programs; mental health rehabilitation centers; or jails. Id.
- 46. Health and Safety Code § 1504.5(b)(1).
- 47. The California Senate Rules Committee recently issued a report, “Housing the Mentally Ill and Chronically Homeless: An Effective Solution, But Counties Need Greater Flexibility,” (Aug. 11, 2011). Among other things, the California Senate report provides information on who may live in MHSA Housing. (Id. at Appendix 2).
- 48. The policy provided cites Probate Code § 1821.
- 49. The Nevada County policy states, in part: “Individuals from Nevada County placed on 72-hour psychiatric hold are typically transported to the acute treatment facilities in Placer County (Cirby Hills) or Sacramento County (Sierra Vista, Heritage Oaks) for inpatient treatment. Transportation is generally arranged and approved through Behavioral Health and utilizes contracted secure transport services or law enforcement. These circumstances usually do not allow sufficient time for the Deputy PG to visit the proposed conservatee prior to petitioning for temporary conservatorship.”
- 50. For example, Kern County provided a record requiring a conservator to visit a conservatee within one month of placement “in any unfamiliar placement.” This indicates that such visit is required when the conservator, rather than a conservatee, is unfamiliar with a place. A visit by the conservator is also important when the conservatee finds himself or herself in an unfamiliar setting.
- 51. Riverside County provided a document requiring visits by the Case Manager, but not by the Public Guardian. Stanislaus County provided Medical Surrogacy Standards stating that the Case Manager functions as a Conservatee’s Deputy Public Guardian and medical surrogate and requiring monthly monitoring visits by the Case Manager.
- 52. These counties provided other records requiring visits within one month (Placer & Sierra) or within 60 days (Siskiyou) of placement in any unfamiliar placement.
- 53. An individual subject to a full conservatorship might possibly be visited only twice during a year-long conservatorship.
- 54. Calaveras County provided a policy on LPS Conservator Duties that includes the following: “Have sufficient contact with the conservatee and with agencies providing treatment and other services to know what kind of help and supervision is needed by the conservatee and to make arrangements for obtaining such help and supervision.” See also, Section E(1), Duty to Protect Conservatee’s Express Interests,” below.
- 55. Out of county placement may increase conservatee isolation, which has been recognized as a form of illegal discrimination against individuals with psychiatric disabilities. See Olmstead v. L.C. (1999) 527 U.S. 581, 597 (“Unjustified isolation, we hold, is properly regarded as discrimination on disability”).
- 56. The Court, however, found that section 5350, subdivision (f) did not apply in LPS cases and that counsel for proposed LPS conservatees could seek excusal of their clients’ presence at hearings with client consent. Id.
- 57. Further, it is axiomatic that a party to a proceeding has a right to attend a hearing in the matter. See Cal. Const., Art. 1, § 15 (criminal defendant).
- 58. See Conservatorship of Lambert’s Estate (1985) 191 Cal.Rptr. 725 (conservatorship costs can be taken from SSI). Nonetheless, a temporary or full conservatee may consider, and assert that, the taking of limited funds for costs associated with an involuntary placement as unfair and unreasonable.
- 59. There may also be a need for clear, uniform standards on responsibility of the public guardian or conservator to ensure arrangements and funding for other transportation needs of the conservatee, such as for home visits, community outings, and medical appointments. While it requires further factual research, the issue is raised here as stakeholders may want to consider it at the local level.
- 60. Again, while we did not request documents specific to the discussion in this section, the documents provided by the counties contained references to these issues. Additional information is needed on these issues, but stakeholders may want to consider them at the local level.
- 61. § 5600.2(a)(2).
- 62. Probate Code § 2355(a); see also Edward W. v. Lamkins (2002), 99 Cal. App. 4th 516, 535 [122 Cal Rptr. 1, 15].
- 63. See Probate Code § 4684.
- 64. The Stanislaus County policy explains:
- 65. In addition, none of the documents provided notes the duty to accommodate the desires of the conservatee in accordance with Probate Code section 2113. Thus, it is unclear whether counties realize they have a legal obligation to ensure this takes place. Additional information may be specified in other county policies and practices not provided in response to our request. While this issue requires further factual research, we raise the issue now because it is important and worth consideration by stakeholders at the local level.
- 66. See § 5355. San Mateo County provided a policy indicating that this is designed, in part, to prevent potential interference with treatment, such as possibly removing a conservatee from a treatment facility against medical advice. This would presumably be related more to a private conservator than a public guardian or conservator. Under the LPS Act, however, only a county employee or designee is permitted to act as the temporary conservator. (§ 5352).
- 67. Government Code § 27431(b) (emphasis added).
- 68. § 5371.
- 69. Id.
- 70. Id.
- 71. Harlick v. Blue Shield of California (9th Cir. 8/26/11 Opinion) 16405, 16416.
- 72. Again, this report considers questions about this issue rather than conclusions. More analysis is required. Stakeholders may want to consider this at the local level.