July 15, 2021

Health and Behavioral Health Trailer Bills

The legislature passed Health budget trailer bill, AB/SB 133 today. While the main budget bill (AB 128, passed by the Legislature on June 14 and signed by the Governor on June 28) outlined the Legislature’s plan to fund local public health jurisdictions, public hospitals, and implement the Governor’s ambitious proposal for behavioral health infrastructure and children and youth aged 25 and under, it provided few details. Subsequently, the Legislature included $3 million for a local public health needs study and $300 million for public hospitals in SB 129, which was passed by the Legislature on June 28 and signed by the Governor on July 12. AB/SB 133 provides additional details on the Governor’s centerpiece behavioral health proposals and the state’s plan for handling the felony Incompetent to Stand Trial (IST) waitlist.

Incompetent to Stand Trial Waitlist

The Department of State Hospitals (DSH) has struggled with a growing and unconstitutional wait list for felony defendants who are deemed incompetent to stand trial (IST). Under the recent June 15 Stiavetti v. Clendenin decision, the wait time for admission into a state hospital must be less than 28 days.

The Governor’s May Revision proposed increasing DSH capacity, but also halting intake of county conservatees into state hospitals to create more room for the IST population. The Legislature rejected that proposal, and counties subsequently engaged in nearly two months of negotiations with the state in search of viable solutions to reducing the 1,600-person IST wait list.  During that time, SB 129 dedicated $255 million (and up to $75 million more upon approval) to allow (DSH) to contract for additional capacity in the community.

AB/SB 133 includes additional language to create a state-led IST Solutions Workgroup tasked with identifying short, medium, and long-term solutions for complying with Stiavetti. A report is due by November 30 on short-term solutions that can be achieved by April 1, 2022, medium-term solutions that can be achieved by January 10, 2023, and long-term solutions that can be achieved by January 10 of 2024 and 2025.

If the waitlist is not in compliance by December 31, 2024, DSH may discontinue admissions of county conservatees, impose a three-year discharge plan whereby felony IST individuals are sent back to the counties regardless of local readiness, and charge 150 percent of the daily bed rate for any patient not transferred to a county.

The health trailer bill also authorizes DSH to contract with local facilities for bed space and strikes an important requirement for DSH to notify conservators when any conservatees are transferred to another facility. Current IST diversion programs will continue as planned and new placements/programs must be additive.  

CSAC will continue to engage on this issue and play a key role in the IST Solutions Workgroup to ensure safe placements for all felony IST and conserved individuals. 

Behavioral Health Infrastructure Continuum Program

The budget bill signed by the Governor on June 28, SB 129, included $443,499,000 for the Governor’s Behavioral Health Continuum Infrastructure Program until June 30, 2026. Of that amount, $150 million is earmarked to support mobile crisis infrastructure, $100 million for justice-involved initiatives through 2024, $30 million for a Population Health Management service only if legislation is enacted that clarifies its implementation, and $4.6 million for interoperability or data exchange purposes.

The health trailer bill, AB/SB 133, fleshes out some of the details for the infrastructure program, including that it will be administered through competitive grants to construct, acquire, or rehabilitate behavioral health facilities. The grant program requires matching funds or real property, cannot supplant current funding or programs, and any facility or beds created must operate for at least 30 years. It also requires a letter of support from a county or city in which a facility is proposed, and 95 percent of the costs of the project must be covered with public or philanthropic funds. The trailer bill also includes some language waiving some California Environmental Quality Act (CEQA) and relaxing contracting standards.

While AB/SB 133 provides the above details, a great deal of technical and implementation details remain to be hashed out by the Department of Health Care Services, which will administer the Behavioral Health Continuum Infrastructure Program.

Children and Youth Behavioral Health Initiative

The second budget bill, SB 129, provided funding for the Governor’s Children and Youth Behavioral Health Initiative, including $27.5 million for county-school behavioral health partnerships and $5.5 million for qualifying Medi-Cal managed care plans to implement school interventions. Millions more are earmarked for other youth behavioral health efforts led by health plans, schools, counties, and community based organizations for Californians aged 0 to 25.

AB/SB 133 provides additional details for the Children and Youth Behavioral Health Initiative, including grants to:

1. provide youth services in rural, urban, and suburban areas and different age cohorts
2. build youth behavioral capacity and workforce
3. address behavioral health disparities for youth
4. develop data sharing practices for prevention and treatment purposes
5. create an app-based behavioral health services and supports platform to provide behavioral health screenings, online supports, and referrals and direct services to users

The bill also places a strong emphasis on school-based behavioral health activities and requires health plans to cover school-linked behavioral health services. It also requires a new workgroup to develop and select evidence-based interventions for improving youth behavioral health.

As with the infrastructure proposal above, a great deal of technical and implementation details must be settled to implement the Children and Youth Behavioral Health Initiative.

Human Services Trailer Bills

There are human services provisions in three trailer bills that became available this week and were passed by the Legislature today. These include the human services trailer bill (AB 135/SB 135), the child welfare trailer bill (AB 153/SB 153) and the early care and education trailer bill (AB 131/SB 131). Many of the provisions of these bills were already settled and described in the CSAC June 28 BAB. However, there are a few key items described below that CSAC continued to engage on and that further details became available once the trailer bills were in print. 

In-Home Supportive Services (IHSS)

IHSS Collective Bargaining Tools

The human services trailer bill (AB 135/SB 135) includes the CSAC-sponsored proposal to maintain the existing sharing ratio of 35% county/65% state for local wage increases up to the cap. This means that the sharing ratio will no longer flip on January 1, 2022, but will continue forward as it currently operates. In addition, AB 135/SB 135 includes language to maintain the ten percent over three years tool that allows counties to secure state participation above the cap. The bill does contain the final language changes that CSAC asked for to make it clear that all counties are able to use the tool two times for three-year periods that begin on or after January 1, 2022, no matter how many times a county has utilized the tool prior to that date.

Counties were facing significant uncertainty for IHSS collective bargaining with the changes that were set to occur on January 1, 2022. CSAC is pleased and grateful to the Governor and the Legislature for the adoption of this sponsored budget proposal that will help sustain the significant progress on IHSS collective bargaining that has been achieved in recent years.

Collective Bargaining Fiscal Penalty

AB 135/SB 135 includes the IHSS fiscal penalty proposal that CSAC and counties have opposed. This means that a county without a collective bargaining agreement could be subject to a 1991 Realignment withholding, but only if certain conditions are met. The conditions are the same and the penalty language is nearly identical to the 2019 penalty provision, with the penalty amount now being at seven percent. With a strong county advocacy effort, CSAC was able to prevent the penalty from being an ongoing penalty and keep it as a one-time penalty, which is significantly better.

The language reenacts the IHSS mediation and fact finding process as of October 1, 2021. A county could then be subject to the withholding only if all of the following four conditions are met: (1) A county and provider union have completed the full IHSS mediation and factfinding process; (2) the factfinding panel has issued recommended settlement terms that are more favorable to the union; (3) the county has an expired IHSS collective bargaining agreement; and (4) the county and union have not reached an agreement within 90 days after the release of the factfinding recommendations. For any county that has already gone through mediation and factfinding with recommended settlement terms issued prior to June 30, 2021, the county will have 90 days to reach an agreement or the withholding will occur on October 1, 2021.

The amount of the withholding will be equivalent to seven percent of a county’s 2020-21 IHSS MOE. The withholding will occur through an adjustment to the county’s Social Services Realignment base. The Social Services Realignment base will be restored by the amount of the withholding in the next fiscal year. The Public Employment Relations Board is required to notify the county, the provider union, the Department of Finance, and the State Controller of any withholding.

Child Welfare and Foster Care

Complex Care Needs for Foster Youth

AB 153/SB 153 includes provisions related to increasing the services and supports that are available to those foster youth with complex needs. The final language contains provisions from AB 808, a bill that was sponsored by the County Welfare Directors Association, as well as priorities of the Legislature related to out-of-state placements. CSAC has been engaged on this issue for a number of years and action was accelerated by the announcement from last December that the California Department of Social Services was bringing youth home from out-of-state facilities.

This bill would establish the Children’s Crisis Continuum Pilot Program. It would be a five-year pilot that would require the creation of several types of crisis stabilization and residential programs, intensive services foster care homes with integrated mental health services, and community based support services that would be available 24/7. The child welfare trailer bill also requires the California Health and Human Services Agency to submit a plan to develop the services that are needed for youth for whom counties had difficulty providing services and securing placements. Finally, AB 153/SB 153 prohibits the placement of youth in out-of-state residential facilities as of July 1, 2021, but provides a one-year exemption if certain conditions are met.