August 18, 2022

Last Thursday marked another big day for the California Legislature. The Senate and Assembly Appropriations Committees convened their suspense file hearings to consider nearly 800 bills prior to the fiscal committee deadline. As the Legislature approaches its last day on August 31 to finish out the two-year session, we wanted to provide an update on a key bill of interest to counties.

SB 1338 (Umberg/Eggman), the Administration-sponsored measure that would create the new Community Assistance, Recovery, and Empowerment (CARE) court process, moved off the Assembly Appropriations Committee’s Suspense File with numerous amendments. Prior to the bill’s consideration on the Suspense File, CSAC and county affiliates submitted a joint letter to the Committee outlining continued policy and fiscal concerns with the proposal, including the lack of funding and resources for counties to support the new duties and responsibilities outlined in the bill which are estimated to cost at minimum in the hundreds of millions of dollars.

While the recent amendments do provide improvements to the bill, some operational and implementation issues continue to be discussed. Additionally, significant fiscal concerns remain. CSAC and county affiliates continue to engage with the Administration on these issues prior to the floor amendment deadline on August 25.

Notable amendments to the bill are outlined below:

IMPLEMENTATION timeline and criteria changes:

• Three-month extension for the first cohort of counties (representing at least ½ of state population; specific counties not identified) to implement: from July 1, to no later than October 1, 2023, unless the county is provided additional time, as specified below. Deletes reference to “additional funding provided to support the earlier implementation date.”
• Five-month extension for the second cohort of counties (specific counties not identified) to implement: from July 1, to no later than December 1, 2024, unless the county is provided additional time, as specified below.
• Requires the Department of Health Care Services (DHCS) to issues guidelines under which counties may apply and be granted additional time to implement.
  • Specifies DHCS shall approve implementation delay for counties in the first or second cohort if the county experiences a state or local emergency and the delay of provision of the CARE process is necessary to respond to the emergency.
  • Specifies DHCS will only grant delays once and no later than December 1, 2025.

COURT PROCESS revisions:

• Requires the Judicial Council to develop a mandatory form for use in filing a CARE process petition and any other forms necessary for the CARE process.
• Requires the Legal Services Trust Fund Commission at the State Bar (instead of the Judicial Council) to provide funding to qualified legal services projects to provide legal counsel in the CARE process.
• Specifies substitution of the director of the county behavioral health agency or their designee as the petitioner at the initial hearing, with initial petitioner retaining specified rights.
• Specifies CARE Act eligibility process separately for petitions submitted by county behavioral health agencies vs. other petitioners.
• For the CARE plan or plans (allows one from respondent and one from the behavioral health agency) presented to and considered by the court, requires the court to adopt the elements of a CARE plan that support the recovery and stability of the respondent. The court may issue any orders necessary to support the respondent in accessing appropriate services and supports, including prioritization for those services and supports, subject to applicable laws and available funding. These orders shall constitute the CARE plan.
• Adds a new hearing in the 12^th month of the program for presentation of the graduation plan. States the graduation plan shall not place additional requirements on local governments and is not enforceable by the court, except that the graduation plan may, at respondent’s election, include a psychiatric advance directive, which shall have the force of law.

STATE AGENCY RESPONSIBILITY/OVERSIGHT changes:

• Adds consultatory role for specified stakeholders for required DHCS provision of optional training and technical resources for supporters.
• Removes “subject to appropriation” provision for the following requirements:
  • California Health and Human Services Agency (CalHHS) or designated department to engage an independent, research-based entity to advise on the development of data-driven process and outcome measures for the CARE process.
  • DHCS required to provide training and technical assistance to county behavioral health agencies to implement the CARE process and to provide training to counsel.
• Adds requirement for CalHHS/designated department to convene a working group to provide coordination and support among state/local partners and stakeholders. The working group meets no more frequently than quarterly, meets during implementation, and ends no later than December 31, 2026.
• Specifies DHCS in consultation with the Judicial Council to develop an annual reporting schedule of CARE Act data from the courts, with data to be aggregated by Judicial Council and submitted to DHCS.
  • Specifies list of data points, demographics, services/supports, housing, treatments, outcome measures, and a health equity assessment of the CARE process to identify demographic disparities and to inform disparity reduction efforts.

SANCTIONS process revisions:

• Revises sanction process to instead have courts report to the presiding judge of the superior court, who may upon a finding of clear and convincing evidence of a local government’s substantial failure to comply with the CARE process, impose a fine of up to $1,000/day up to a maximum of $25,000 per violation.
• Specifies moneys from fines shall be used to support the efforts of the local government entity that paid the fines to serve specified individuals (but amendments stop short of specifying allocation of funds directly back to local governments).