MEMORANDUM
June 19, 2015
To:
Tom Sherry
Pat Ryan
Adrienne Shilton
From: Diane Van Maren
Sub: State Hospitals: Incompetent to Stand Trial and Potential Legislation
This memorandum is in response to questions raised last week regarding the potential for
legislation to require the State to admit individuals deemed to be Incompetent to Stand Trial
(IST) into the State Hospital system. Background information is provided to frame a context for
discussion, and options for continued discussion are offered in closing. Further, trailer bill
passed today as part of the 2015-16 Budget package is also referenced.
Overview of IST Issue
At any given time, between 15 percent and 20 percent of the population at State Hospitals is
committed as IST. For 2015-16, the projected census for ISTs is 1,485 patients. The State
spends about $300 million (GF) annually to provide treatment to this population—an average
of about $230,000 per bed (LAO, Analysis of 2015-16 Governor’s Budget, February 2015).
Individuals who are IST and face a felony charge are eligible for Department of State Hospital
(DSH) provided restoration of competency services (Penal Code, Section 1370). If these ISTs
are charged with a violent felony or sexual felony they are usually prioritized for admittance. If
there is no bed available, they are usually placed on a waiting list and held in county jail until a
bed is available. ISTs with misdemeanor charges are usually provided treatment locally or
released with charges dismissed.
Over the past several years, the State Hospitals have seen a growing waiting list of forensic
patients. The largest waiting lists are for IST and “Coleman” inmate-patient commitments
(court-settled litigation) from the CA Department of Corrections and Rehabilitation (CDCR). As
of late February 2015, the waiting list for all commitment types was 484, including 328
specifically IST (Senate Budget Committee, March 19, 2015 Agenda). It should be noted that
the IST waiting list has consistently been at least 300 patients for the past several years.
Generally, the DSH utilizes priority admissions of penal code commitments as follows: (1)
Sexually Violent Predators; (2) Mentally Disordered Offenders; (3) Coleman inmate-patients;
(4) Not Guilty by Reason of Insanity; and (5) ISTs. Therefore, ISTs are usually the last group
to be admitted to a State Hospital. This ordering reflects both concerns with risk to public
safety posed by certain patient populations as well as requirements imposed by federal court
cases.
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State statute requires that State Hospitals admit, examine and report to the court on the
likelihood of competency restoration within 90 days of the defendant’s commitment in order to
avoid violating the defendant’s constitutional right to due process. In Freddy Mille v Los
Angeles County (2010) it was ruled that an IST must be transferred to a State Hospital within a
“reasonable amount of time” in order to comply with the 90-day statutory requirement. In this
case the court specifically held that the provision of antipsychotic medications alone to the IST
defendant within the confines of jail did not legally constitute treatment for the purposes of
restoring a person’s mental competency.
After a series of subsequent court rulings, the courts have recommended that the transfer of
IST defendants from jail to State Hospitals be completed in no more than 30 to 35 days. This
still leaves from 55 to 60 days for the examination and assessment of competency at the State
Hospital.
As such, there is pressure on the Administration to add more beds at the State Hospitals for
IST patients and to be more adept at restoring competency. It is noted that the previously
described waiting list is problematic because it could result in increased court costs and higher
risk of the DSH being found in contempt of court orders to admit IST patients. Further, based
on recent statistics, it takes from six to seven months on average to restore a defendant to
competency (Department of State Hospitals and LAO).
Question has arisen as to whether this length of time could be improved through clinical
improvements and efficiencies. In response to this, the DSH contends they have undertaken
some efforts to address the IST waiting list, including the following:

Increasing State budgeted bed capacity by activating new units and converting other units;

Establishing a statewide patient management unit within the DSH;

Promoting expansion of jail-based IST programs;

Standardizing competency treatment programs across the State Hospitals;

Seeking community placements;

Improving referral tracking systems; and

Participating in an IST workgroup that includes county sheriffs, the Judicial Counsel,
CBHDA, public defenders, district attorney’s, patients’ rights advocates, and the
Administration.
San Bernardino Pilot Project
In 2007, $4.3 million (GF) was appropriated to the Department of Mental Health to establish a
pilot program to restore defendants who are IST to competency. These funds were intended
to provide 40 beds at the county-level for one-year for competency restorations in lieu of State
Hospital services. However after much trial and tribulation, only one pilot was established in
San Bernardino County (as of 2013).
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This pilot operates through a contract with DSH, Liberty Healthcare Corporation and San
Bernardino County. Liberty provides intensive psychiatric treatment, acute stabilization
services and other court mandated services. DSH pays Liberty $278 per bed which is well
below the $450 per bed cost of a State Hospital bed (Senate Budget Committee). San
Bernardino covers the cost of food, housing, medications, and security through its county jail.
According to several reports, the results of this pilot have been positive, including: (1)
treatment begins more quickly than in State Hospitals; (2) treatment is completely on a timelier
basis; (3) treatment has been more effective; and (4) the county has seen a reduction in IST
referrals (LAO report, 2012; and Senate Budget Committee).
San Bernardino reports it has achieved savings of more than $5,000 per IST defendant, and
the State has achieved about $1.2 million in savings from this pilot (LAO and Senate Budget
Committee).
2015-16 Budget Actions (SB 85, trailer bill, Sections 29, 30 and 31)
Through budget actions taken in 2012 and 2014, the pilot was authorized on an ongoing basis
and additional funds were added to the “Restoration of Competency Program”. The DSH
recently informed the Budget Committees that they have had discussions with 14 counties and
they are close to signing contracts with Sacramento and Los Angeles counties. The LAO
reports that the State currently spends about $8.2 million (GF) annually on the ROC
Program—about $91,000 per bed per year (February 2015).
For 2015-16, the Governor proposed to expand the State Hospital IST beds by an additional
105 beds for an increase of $17.3 million (GF) as a phase-in. However the Legislature
modified this proposal through Budget Conference Committee with a final determination made
in their negotiations with the Governor. The Budget Bill provides an increase of only 50 beds
at the State Hospitals and also makes changes to the ROC Program through SB 85
(Committee on Budget). By this action, it appears that the Legislature prefers to use a mixture
of State Hospital beds and local county jail beds (as the less costly to the State option) to treat
defendants who are ISTs (those with felony charges).
Specifically, the trailer bill makes several changes. First, in Section 1369.1 of the Penal Code,
it permanently establishes that the term “treatment facility” includes a county jail and that an
individual may be treated in this manner for a maximum of six months. Previously this
provision of law was scheduled to sunset as of January 1, 2016.
Second, it amends Section 1370 of the Penal Code by deleting a certain section which is then
recast into a new Section 1370.6 of Penal Code. The purpose of this new code section is to
address two aspects—court referral to county jails, and the DSH contracting with county jails
for competency restoration in lieu of State Hospital beds.
Specifically, this new section of code does the following:

Requires the DSH to provide payment to county jails for reasonable costs of the bed
and competency restoration, as well as any necessary medical treatment not provided
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within the county jail, if the court (pursuant to Section 1370) selects the county jail
option for competency restoration;

Provides that if a county jail is willing to participate as an ROC Program partner (at the
county option, not at court direction), then the DSH may make arrangements (through
contracting) to pay/arrange for this contingent upon appropriation in the annual Budget
Act;

Provides both the DSH and the county jail with indemnity protection;

Removes the six-month patient limit for treatment in a county jail facility if a county
contracts with the DSH as an ROC Program partner; and

Provides that if a court selects a community-based residential facility for the defendant
to obtain restoration, then the DSH shall reimburse the facility based upon negotiation of
payment.
Considerations
I think it would be constructive to have discussions within CBHDA regarding the broader
context of the IST population (felony and misdemeanor), including possible unintended
consequences with Proposition 47 that could lead to an increase in ISTs.
In addition, since this topic cuts across many areas it would be helpful to have a discussion
within CSAC to provide a more focused county approach overall prior to any other legislative
changes. Further, it would be constructive to contact the DSH and ask them to convene the
stakeholder group which has only seldom convened.
Finally, I assume our CBHDA Forensics Committee will discuss the implications of SB 85 as
soon as feasible as well. This legislation was enacted without any discussion with CSAC or
CBHDA as far as I can discern.
I hope this information is helpful. Please let me know if you have any questions please.
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