In October 2023, Gov. Gavin Newsom signed legislation that updates the state’s conservatorship laws for the first time in more than 50 years.

People experiencing serious mental illness or severe substance use disorder who are most at risk of harming themselves can have a conservator appointed to direct their care – with continued protection of individual rights and increased transparency on data, equity, and outcomes.

Putting the rhetoric aside, elected officials failed to address two critical questions:

First, what will it take to implement this new law? And second, what is the fiscal impact on county-run Behavioral Health Services (BHS) Departments across California?

For Behavioral Health Services, each county must develop an extensive array of new policies, procedures, workforce, and treatment capacity to implement the new legislation.
By expanding the new law to capture any person who has a severe substance use disorder (SUD), this policy change would significantly expand the portion of the population potentially subject to detention and conservatorship.

Who is impacted? This will affect BHS staffing levels and the public conservator, county counsel, public defender, and courts.

For example, under current law, only peace officers and individuals designated by the county may, with probable cause, detain a person and take them into custody for an assessment. Counties must develop criteria for a “severe (SUD)” grave disability assessment. Today, no such assessment exists. Moreover, counties will need to establish standards and policies, as well as protocols for designating individuals to perform severe SUD grave disability assessments, and counties will need to recruit and hire staff to perform strict SUD grave disability assessments. However, the legislature and the governor failed to allocate funding to help counties implement this. Does this mean increased taxes on working families to pay for this new law?

Hospitals will be hit hard. Often, when a person is detained by law enforcement, they are taken to a hospital emergency department or a designated facility for an assessment. Overcrowded and overworked hospital emergency departments will be impacted. Further, the new law expands criteria to evaluate whether an individual cannot survive safely in the community or whether necessary medical care can be provided without involuntary detention. Counties and qualified licensed healthcare providers will need to develop policies and procedures for how these determinations will be made.

In addition, hospitals will be without qualified designated individuals to perform the assessments needed to remove involuntary holds or recommend conservatorship when appropriate.

Compounding the crisis for county Behavioral Health Services Departments and hospital ERs is the fact that there is no locked treatment capacity for individuals with severe SUD. Hospitals may be impacted by additional individuals awaiting placement without this new treatment capacity. There are no state criteria to certify or regulate a locked SUD treatment facility.

But the clumsiness of the new legislation also fails to address these critical points:

• There are very few treatment settings that can serve individuals with complex co-occurring medical, SUD, and mental health treatment needs.
• If a patient is placed in conservatorship based on a severe SUD, clinicians would have no way to determine when a conservatorship should end since the Ca. Department of Healthcare Services does not have clinical standards to choose when to complete involuntary SUD treatment.
• By adding physical health conditions as a basis for conservatorship, the state would require counties to develop new medical services to evaluate and assess physical health risks and status. Under the new law, public conservators are not given the authority to make medical decisions.
• However, under any structure, counties would still only be able to treat the individual's mental health or SUD needs, which are within the county behavioral health system’s scope.

Taxpayers will be asked to pay for these mental health changes and challenges. Should we assume that every county will raise taxes or cut spending in other areas to cover the costs of these new mandates?

The new legislation provides nothing to pay toward public guardians, funding for designated individuals to conduct assessments, or the Patient’s Rights Advocates needed to make determinations, conduct investigations, and manage conservatorships. Behavioral Health Departments often fund these functions within their existing resources.

The federal and state governments provide no reimbursement for long-term residential and inpatient drug treatment under Medi-Cal. And, if courts were to order involuntary SUD treatment, they would not be bound by what Medi-Cal or other insurance payers would cover, leaving counties with a significant unfunded mandate. Compounding these problems is that commercial insurance plans often deny counties’ requests for reimbursement for mobile crisis, crisis, and inpatient residential SUD treatment services.

This structural lack of reimbursement across our major public and private insurance payers has directly led to the scarcity of SUD residential and inpatient treatment capacity.

California needs to invest more in consistent, sustainable reimbursement for longer-term residential and inpatient SUD treatment to both prevent the deterioration of individuals and assist with long-term treatment and recovery.

Fifty years after making these changes, one consistent theme remains: the fiscal impacts on the county counsel, public defender, and the local court system are again ignored. What happened to the old-fashioned pilot project: target one or two counties, work out the kinks, understand the fiscal impact, and then offer a statewide solution? Where was the Department of Healthcare Services and its guidance to counties across California?

— Jeffrey Lewis is the President and CEO of Legacy Health Endowment and the EMC Health Foundation. The views expressed are his own.