The Right to Receive Home &
Community-Based Services
on a Voluntary Basis
under Medicaid (Medi-Cal) & Olmstead
for Persons Subject to Section 5250 of the
Welfare & Institutions Code
Michael Stortz
Protection and Advocacy, Inc.
_________________________________
10th Annual Patients’ Rights Training
Office of Patients Rights
Thursday, October 3, 2002
Los Angeles, CA
(Revised September 25, 2002)
I.
Introduction ...................................................................................................... 1
A. Overview of Three Key Rights........................................................................ 2
1. Presumption of Legal Competence ............................................................ 2
2. The Right to Informed Consent to Psychiatric Treatment ......................... 2
3. Right to Individualized Services that Promote Rehabilitation and
Recovery in the Least Restrictive, Most Integrated Setting ...................... 3
a. LPS Act Requires Services for Independent Living ............................. 3
b. Medi-Cal Requires Rehab & Community Support Services ................ 4
c. Bronzan-McCorquodale Act Provides Array of Client-Directed
Residential Options and Community Support Services ........................ 5
d. ADA and Olmstead Require Provision of Services in Most
Integrated Setting and Reasonable Modifications ................................ 6
II. Rights of Persons Subject to 5250 Commitment Process ............................. 8
III. Effective Assistance of Advocate or Attorney ............................................. 11
A. Competent Assistance Requires Knowledge of Alternatives ..................... 11
1. Advisement in Primary Language ............................................................. 12
2. Willing and Able to Accept Alternatives Services.................................... 12
3. Services Available on Voluntary Basis ..................................................... 13
4. Application for Voluntary Services........................................................... 14
5. Choice of Facilities & Providers ............................................................... 14
6. Voluntary Hospitalization ......................................................................... 15
B.
Pre-Hearing Preparation............................................................................... 16
1. Initial Investigation & Client Interview .................................................... 16
2. Interviews with Staff & Supportive Persons ............................................. 18
3. Research into Relevant Laws and Professional Standards ........................ 20
C. Presentation at Hearing ................................................................................. 20
1. Act as Advocate & Adversary ................................................................... 20
2. Challenge Irrelevant Evidence .................................................................. 21
3. Present Evidence in Support of Client’s Wishes ....................................... 21
4. Request a Second Opinion......................................................................... 21
D. Post-Hearing Implementation ......................................................................... 22
Appendix 1 – Four Requirements for 14-Day Hold ........................................... 23
Appendix 2 – Medi-Cal Specialty Mental Health Services ................................ 24
Appendix 3 – Notice of Certification for 14-Day Hold ....................................... 28
Appendix 4 – In Re Mental Health of K.G.F. ....................................................... 29
Appendix 5 – National Center for State Courts’ Guidelines for
Involuntary Civil Commitment .................................................... 47
i
I.
INTRODUCTION1
There are three key rights about which all advocates and attorneys
must know the relevant law to provide effective assistance to persons subject
to involuntary psychiatric commitment under section 5250 of the Welfare
and Institutions Code:2 (1) the presumption of legal competence, (2) the
right to informed consent, and (3) the right to individualized services that
promote rehabilitation and recovery in the least restrictive, most integrated
setting appropriate to individual need. Effective advocacy assistance is
required to fulfill these rights.
Effective advocacy requires an ability to inform persons of both their
procedural rights (e.g., to attend the hearing, challenge irrelevant evidence in
support of detention, and present evidence in opposition to detention) and
their substantive rights (e.g., to receive home and community-based
alternatives to involuntary hospitalization).
One of the four requirements to find probable cause for a 14-day
involuntary hold is that “[t]he person has been advised of the need for, but
has not been willing or able to accept, treatment on a voluntary basis.”3 (See
Appendix 1).
This workshop will explore the following questions: (1) To what
extent are advocates and attorneys negotiating with their clients and treating
The information herein builds on the work of Paul Bernstein, Patients’
Rights Manual for Mental Health Service Providers (PAI 1988). Please
contact Protection & Advocacy, Inc. at 1-800-776-5746 if you would like
additional information on the rights discussed below.
2
Persons subject to involuntary detention under section 5150 of the Welfare
and Institutions Code also have rights to home and community-based
alternatives to involuntary hospitalization under the Medicaid Act, the
Americans with Disabilities Act (“ADA”), and the Lanterman-Petris-Short
(“LPS”) Act. See Welf. & Inst. Code § 5151 (“If in the judgment of the
professional person in charge of the facility providing evaluation and
treatment, or his or her designee, the person can be properly served without
being detained, he or she shall be provided evaluation, crisis intervention, or
other inpatient or outpatient services on a voluntary basis.” (emphasis
added).
3
Welf. & Inst. Code § 5250, subd. (c).
1
1
professionals for access to home and community-based alternatives to
involuntary hospitalization? (2) To what extent are advocates and attorneys
addressing subdivision (c) of section 5250 at certification review hearings?
(3) To what extent are hearing officers considering the hospital’s duty to
offer, and the county mental health department’s duty to provide, treatment
services on a voluntary basis? Workshop participants also will discuss what
additional resources or training may be necessary to ensure effective
advocacy assistance to obtain alternatives in the section 5250 process.
A.
Overview of Three Key Rights
1.
Presumption of Legal Competence
The fact that a person is in a psychiatric hospital, whether voluntarily
or involuntarily, does not mean that s/he loses other rights possessed by all
persons. 4 Evaluations or treatment for a mental disorder or chronic
alcoholism may not, in themselves, serve as proof of incompetency.5 The
presumption of competence is found elsewhere in California law. Under the
Uniform Health Care Decision Act, any adult is presumed to have capacity
to develop an advance directive.6
2.
The Right to Informed Consent to Psychiatric Treatment
All patients have a right to be fully informed of the risks and benefits
of proposed treatment and, in most cases, to accept or reject that treatment—
that is, to give their informed consent.7 Informed consent must be voluntary,
knowing, and competent.8 This right is not lost upon admission for
involuntary psychiatric evaluation or treatment. For example, a patient on a
short-term involuntarily hold may refuse antipsychotic medication except in
an “emergency” unless there has been as adjudication of legal
4
Welf. & Inst. Code § 5325.1.
Welf. & Inst. Code § 5331.
6
Probate Code § 4657.
7
Welf. & Inst. Code § 5326.2.
8
See e.g., Cobbs v. Grant (1972) 8 Cal. 3d 229; Keyhea v. Rushen (1986)
178 Cal. App. 3d 526; Bouvia v. Superior Court (1986) 179 Cal. App. 3d
1127; Barber v. Superior Court (1983) 147 Cal. App. 3d 1006.
5
2
incompetence.9 Further, a patient on an involuntary psychiatric hold who
requires treatment for a heart condition must first give informed consent just
like any other patient on a non-psychiatric medical ward.
3.
Right to Individualized Services that Promote Rehabilitation and
Recovery in the Least Restrictive, Most Integrated Setting
There is increasing recognition of a right to treatment services for
persons with psychiatric disabilities to promote rehabilitation and recovery.
The right to mental health treatment services, as first suggested in 1960, is
based on the notion that if patients are confined for the purpose of treatment,
then treatment should in fact be provided.10 Schwitzgebel quotes Judge
Bazelon in Rouse v. Cameron as follows: “Absent treatment, the hospital is
‘transform[ed]… into a penitentiary where one could be held indefinitely for
no convicted offense.’”11 Current clinical practice in California requires
compliance with state and federal laws regarding individualized services that
promote rehabilitation and recovery in accordance with: (1) the LPS Act,
(2) the Medicaid (Medi-Cal) Act, (3) the Bronzan-McCorquodale Act, and
(4) the ADA.
a.
The LPS Act Requires Services for Independent Living
In 1967, the California legislature enacted the Lanterman-Petris-Short
(LPS) Act to, in part, “end the inappropriate, indefinite, and involuntary
commitment” of persons with psychiatric disabilities.12 In 1978, the
legislature mandated that “persons with mental illness shall have rights
including…[a] right to treatment services which promote the potential of the
person to function independently.”13
Welf. & Inst. Code §§ 5325.2, 5332; Riese v. St. Mary’s Hospital and
Medical Center (1987) 196 Cal. App. 3d 1388; persons subject to
conservatorship also have a right to refuse psychotropic medication absent
judicial determination of their incapacity to do so. Welf. & Inst. Code §§
5357, 5358, 5358.2.
10
See Ralph Kirkland Schwitzgebel, “The Right to Effective Mental
Treatment” California Law Review Vol. 62:936 (1974).
11
373 F.2d 451, 453 (D.C. Cir. 1966).
12
Welf. & Inst. Code § 5001, subd. (a).
13
Welf. & Inst. Code § 5325.1, subd. (a).
9
3
b.
The Medicaid (Medi-Cal) Program Requires Rehabilitative
Mental Health and Other Community Support Services
The right to community mental health support services expanded
greatly in California with the adoption of State Medicaid (Medi-Cal) Plan
amendments for the provision of targeted case management services
effective in 199114 and rehabilitative mental health services effective in
1993.15 These services are provided at a beneficiary’s home or in a variety
of community-based settings.16 Under the so-called “Rehab Option” to the
State Medicaid Plan, a beneficiary has a right to receive services “in the least
restrictive setting appropriate” to achieve the purpose of such assistance. 17
The purpose of rehabilitative mental health services is “for maximum
reduction of mental disability and restoration of a recipient to his [or her]
best possible functional level… in accordance with a coordinated client plan
or service plan.”18
Medi-Cal eligible individuals have an entitlement claim to covered
services that are medically necessary.19 This entitlement is based on federal
requirements, which include the following: (a) right to receive services with
reasonable promptness;20 (b) right to services that are comparable in amount,
scope and duration as those services received by other beneficiaries in the
same or another county;21 and (c) right to receive services sufficient in
amount, scope and duration to achieve their purpose.22
14
See Welf. & Inst. Code § 14021.3.
See Welf. & Inst. Code § 14021.4.
16
Welf. & Inst. Code §§ 14021.4, subd. (a)(3) (“home, school and
community based sites”), 14684, subd. (e)(Medi-Cal “mental health services
may be provided in a facility, a home, or other community-based site.”).
17
See Supplement 2 to Attachment 3.1-B of the California State Medicaid
Plan at page 1.
18
Id. See also Welf. & Inst. § 14021.4, subd. (a)(4) (“remedial services
directed at restoration to the highest possible functional level for persons
with psychiatric disabilities and maximum reduction of symptoms of mental
illness”).
19
Medical necessity is defined under state regulations. See Cal. Code Regs.,
tit. 9 §§ 1830.205 (adults over age 21), 1830.210 (persons under age 21).
20
42 U.S.C. § 1396a(a)(8).
21
42 U.S.C. § 1396a(a)(10)(B).
22
42 C.F.R. § 440.230(b).
15
4
County mental health departments have a duty to fund Medi-Cal
covered services that are medically necessary.23 (See Appendix 2 for a list
and description of covered services).
c.
The Bronzan-McCorquodale Act Provides for An Array of
Client-Directed Residential Options and Community
Support Services
In 1991, the State enacted the Bronzan-McCorquodale Act and therein
specified that the mission of California’s mental health system “shall be to
enable persons experiencing severe and disabling mental illnesses and
children with serious emotional disturbances 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.”24
Persons with psychiatric disabilities are “the central and deciding
figure, except where specifically limited by law, in all planning for treatment
and rehabilitation based on their individual needs.”25 Planning should
include family and friends as a source of information and support.26 Even
when a person has been found to lack capacity to make treatment decisions,
the substitute decision-maker has a duty to provide informed consent
consistent with the person’s health care instructions, if any, and other wishes
to the extent known by person’s conservator or agent.27 The person’s wishes
23
Welf. & Inst. Code § 5777, subd. (a)(1) (county assumption of financial
risk for cost of services in excess of payment set forth in contract with state);
see also Welf. & Inst. Code §§ 5778, subd. (j)(2)(B) (initial allocation
percentages to counties for acute inpatient services), 17600-17609 (state
sales tax and vehicle license fee funding allocation percentages to counties
for mental health services).
24
Welf. & Inst. Code § 5600.1.
25
Welf. & Inst. Code § 5600.2(a)(2).
26
Id.
27
Probate Code §§ 2355, subd. (a) (conservator), 4684 (agent); see also
Conservatorship of Wendland (2001) 26 Cal.4th 519, 545 (purpose of
requiring decisions in accordance with conservatee’s wishes is to enforce the
principle of personal autonomy).
5
should be followed where consistent with applicable health and legal
standards.28
The Bronzan-McCorquodale Act provides for a variety of services
that are available to individuals who are not Medi-Cal eligible, as well as
services that are not covered under the Medi-Cal program. For example,
individuals who are not Medi-Cal eligible should have access to a
comparable scope of community mental health services as covered under the
Medi-Cal program.29 In addition, all persons should have access to a “range
of alternatives to institutional care based on principles of residential,
community-based treatment.”30
Access to services under the Bronzan-McCorquodale Act is limited
“to the extent resources are available” under the so-called “Realignment”
allocations. The statute defines “to the extent resources are available” to
mean “the extent that funds deposited in the mental health account of the
local health and welfare fund are available to an entity qualified to use those
funds.”31 This funding limitation does not apply to medically necessary,
Medi-Cal covered services for Medi-Cal beneficiaries.32 Further, counties
have an obligation to provide services to persons who are not Medi-Cal
eligible as well as those who are consistent with the ADA.
d.
The ADA and Olmstead Decision Require Provision of
Services in the Most Integrated Setting and for Reasonable
Modifications in Programs to Ensure Integration
As stated above, the mission of California’s mental health system is to
provide services and supports “in the least restrictive available settings.”33
This right is further enforced by the federal Americans with Disabilities
28
Cf. Probate Code § 4654 (California Health Care Decisions Law).
See Welf. & Inst. Code §§ 5600.4 (Treatment options), 5600.5 (Array of
services for children and youth), 5600.6 (Array of services for adults),
5600.7 (Array of services for older adults).
30
Welf. & Inst. Code § 5670, subd. (a); see also Welf. & Inst. Code §§
5670.5 (Residential treatment system – program criteria), 5671 (Residential
treatment system – program elements).
31
Welf. & Inst. Code § 5601, subd. (c).
32
See Welf. & Inst. Code § 5777, subd. (a)(1).
33
See Welf. & Inst. Code § 5600.1.
29
6
Act34 and the 1999 U.S. Supreme Court decision, Olmstead v. L.C. and
E.W.35 In the Olmstead case, the Court ruled that the unnecessary
segregation of people with disabilities in institutions is a form of
discrimination in violation of the ADA.
Federal regulations implementing the ADA require, in part, that
public entities provide services “in the most integrating setting appropriate
to the needs of qualified individuals with disabilities”36 and make
“reasonable modifications” in policies, practices and procedures so that
individuals with disabilities are not unnecessarily placed in segregated
settings.37
Under the Olmstead decision, public entities such as county mental
health departments have a duty to provide home and community-based
services when: (1) the assistance would appropriately meet the person's
needs; (2) the person prefers or does not oppose the assistance; and (3) the
assistance could be reasonably provided.38
While the case concerned two woman placed in a Georgia State
Hospital for long-term care,39 the Olmstead decision covers many people
with disabilities who receive public services, including: (1) people in
hospitals, nursing homes or other segregated settings who could live back
home or in the community with appropriate supports and housing; (2)
children, adults and frail elderly adults who are at risk of out of home
34
42 U.S.C. § 12101 et seq.
527 U.S. 581, 119 S.Ct. 2176 (1999).
36
28 C.F.R. § 35.130(d).
37
28 C.F.R. § 35.130(b)(7).
38
Olmstead v. L.C. et al., 527 U.S. at 607.
39
Persons subject to long-term placement in segregated settings pursuant to
LPS conservatorships have rights under the Medicaid Act, the ADA, and the
LPS Act to receive treatment services to support them at home and in the
community. See Welf. & Inst. Code § 5358, subd.(c)(1) (“if the conservatee
is not to be placed in his or her own 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 own home or the home of a relative. For purposes of this section,
suitable facility means the least restrictive residential placement available
and necessary to achieve the purpose of treatment.”).
35
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placement; (3) people on waiting lists for housing and support services; and
(4) people homeless due to de-institutionalization.40
As discussed further below, knowledge of the relevant law governing
these key rights and other rights and the ability to communicate such
information to persons subject to involuntary treatment are essential
elements of effective advocacy assistance.
II.
Rights of Persons Subject to 5250 Commitment Process
Deprivation of a person’s liberty for 14 days in a psychiatric hospital
requires an automatic review or hearing at which the government is required
to show probable cause for the detention.41 Persons who are certified for 14days of involuntary treatment under section 5250 of the Welfare and
Institutions Code (“section 5250”) have a variety of procedural and
substantive rights prior to the hearing including but not limited to: (1)
assistance of an attorney or patient advocate “[a]s soon as practicable after
certification”;42 (2) personal delivery of notice of certification for up to 14days involuntary treatment;43 (3) access to voluntary services at home and/or
in the community;44 (4) notice of a certification review or “Gallinot” hearing
to be held within four days and of the right to request judicial review
through a writ of habeas corpus.45
40
See Technical Assistance Collaborative, Inc., Strategies to Help People
with Disabilities Be Successful in the Housing Choice Voucher Program –
Guidance for Public Housing Agencies Administering Housing Choice
Vouchers Targeted to People with Disabilities through the Mainstream,
Certain Developments, or Designated Housing Programs, at p. 33 (April
2002).
41
Doe v. Gallinot (C.D. Cal. 1979) 486 F.Supp. 983, aff’d. 657 F.2d 1017.
42
Welf. & Inst. Code §§ 5255, 5333.
43
Welf. & Inst. Code §§ 5251, 5252, 5253, 5333 subd.(b).
44
See Notice of Certification prescribed by statute under section 5252 of the
Welfare and Institutions Code (“The above-named person has been informed
of this evaluation, and has been advised of the need for, but has not been
able or willing to accept treatment on a voluntary basis, or to accept referral
to, the following services.”).
45
Welf. & Inst. Code §§ 5253, 5254, 5254.1, 5256, 5275, 5276, 5276.2.
8
The person certified has the following rights at the certification review
hearing: (1) to have a qualified hearing officer and to have a hearing
conducted at an appropriate place at the facility where s/he is receiving
treatment;46 (2) to attend the hearing unless s/he, with the assistance of her or
his attorney or advocate, waives the right to be present at a hearing;47 (3) to
assistance of an attorney or advocate; (4) to present evidence on his or her
own behalf; (5) to question persons presenting evidence in support of the
certification decision; (6) to make reasonable requests for the attendance of
facility employees how have knowledge of, or participated in, the
certification decision; (7) to present information about the medications the
person has received within 24 hours or longer and of the probable effects of
the medication(s).48
The hearing must be conducted in an impartial and informal manner,
and is not “bound by rules of procedure or evidence applicable in judicial
proceedings.”49 The director of the facility must designate a person to
present evidence in support of certification, and the district attorney or
county counsel may elect to present evidence.50 All evidence that is relevant
to the issue of certification must be admitted and considered.51 The person’s
opposition to involuntary commitment itself cannot imply the presence of a
mental disorder or constitute evidence that the person meets the criteria.52
The facility has a duty to inform family members and other persons
designated by the patient of the time and place of the hearing, unless the
patient requests that the information not be provided; the hospital has a duty
to advise the patient that this information not be provided.53
46
Welf. & Inst. Code § 5256.1.
Welf. & Inst. Code § 5256.3.
48
Welf. & Inst. Code § 5256.4, subd. (a)(1)-(5).
49
Welf. & Inst. Code § 5256.4, subd. (b).
50
Welf. & Inst. Code § 5256.2.
51
Welf. & Inst. Code § 5256.4, subd. (d).
52
Welf. & Inst. Code § 5256.4, subd. (e).
53
Welf. & Inst. Code § 5256.4, subd. (c); see also Welf. & Inst. Code §
5008.2 (facilities must make reasonable efforts to make information
provided by family about the historical course of the person’s condition
available to the court, and such information may be excluded from
consideration as irrelevant due to remoteness of time or dissimilarity of
circumstances).
47
9
The person has a right to oral notice of the decision at the conclusion
of the certification review hearing.54 If the hearing officer finds that there is
not probable cause to certify the patient, then s/he may no longer be detained
but may remain at the facility on a voluntary basis.55 Under federal
Medicaid law, the facility has a duty to develop and begin implementation of
a discharge plan for all patients who are likely to suffer adverse health
consequences upon discharge if there is no adequate discharge planning.56
Under state law, an aftercare plan must be provided to any person
undergoing treatment at the facility and to other designated persons prior to
being discharged from the facility.57 If the hearing officer finds probable
cause to certify the person, then the person’s detention may be continued.58
Written notice of the hearing decision including a statement of the
evidence relied upon and the reasons for the decision must be provided to
the attorney or advocate of the person certified, the facility director, and the
superior court as soon as practicable after the hearing.59 The attorney or
advocate must notify the person certified of this decision and right to a
hearing by writ of habeas corpus.60
The person must be released at the end of 14 days unless the person’s
treating psychiatrist authorizes discharge earlier, the patient agrees to receive
further treatment on a voluntary basis, or the patient is certified or subject to
a conservatorship petition for additional involuntary treatment.61
Any individual who is knowingly and willfully responsible for
detaining a person in violation of the afore-mentioned rights is liable to that
person in civil damages.62
54
Welf. & Inst. Code § 5256.7.
Welf. & Inst. Code § 5256.5.
56
42 C.F.R. § 482.43(a)-(c).
57
Welf. & Inst. Code § 5622.
58
Welf. & Inst. Code § 5256.6.
59
Welf. & Inst. Code § 5256.7.
60
Welf. & Inst. Code §§ 5256.7, 5275.
61
Welf. & Inst. Code § 5257; see also Welf. & Inst. Code §§ 5258
(limitation on total period of detention), 5259 (permission to leave facility
for short periods during involuntary additional treatment).
62
Welf. & Inst. Code § 5259.1.
55
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III.
Effective Assistance of Advocate or Attorney
The Montana Supreme Court recently held that the following five
critical areas define, generally but not exclusively, the scope of effective
assistance of counsel in involuntary civil commitment proceedings: (1)
appointment of competent counsel; (2) thorough initial investigation; (3)
client interview sufficiently before any scheduled hearing to permit effective
preparation and prehearing assistance; (4) protection of the right to remain
silent; and (5) counsel as an advocate and adversary.63 These criteria should
govern effective assistance in California civil commitment proceedings as
well.64 Advocate or attorney competency regarding knowledge of
alternatives to hospitalization in the context of patient rights through the
section 5250 certification process is explored further below.
A.
Competence Assistance Requires Knowledge of Alternatives
Competent advocates or attorneys require specialized course training
or supervised on-the-job training in the duties, skills, and ethics of
representing civil commitment respondents. As provided under the National
Center for State Courts’ Guidelines for Involuntary Civil Commitment
(“Guidelines”), “counsel should possess a verifiably competent
understanding of the legal processes of involuntary commitments, as well as
63
In Re Mental Health of K.G.F. (Mont. 2001) 29 P.3d 485 (See, Appendix
4).
64
Citing, inter alia, Michael L. Perlin, Fatal Assumption: A Critical
Evaluation of the Role of Counsel in Mental Disability Cases, 16 Law &
Hum. Behav. 39, 53-54 (1992), the Montana Supreme Court rejected the
two-part Strickland test, derived from the U.S. Supreme Court decision in
Strickland v. Washington (1984) 466 U.S. 668, as an inappropriate standard
for involuntary civil commitment proceedings given the fundamental liberty
and personal autonomy rights of individuals subjected to such proceedings.
(In Re Mental Health of K.G.F., supra, 29 P.3d at 491-494). Under the
Strickland test, the court considers (1) whether counsel acted within range of
competence demanded of attorneys in criminal case and (2) whether
counsel’s deficient performance prejudiced the defense so as to deny the
defendant a fair trial. The Montana Supreme Court adopted the aforementioned five critical areas to define the scope of effective representation
in involuntary commitment proceedings.
11
the range of alternative, less-restrictive treatment and care options
available.”65
Thus, competent advocacy requires knowledge of the person’s
substantive rights to home and community based alternative treatment
services as well as the person’s procedural rights through the section 5250
commitment process. An advocate or attorney must be knowledgeable about
the following: (1) the right to information in the patient’s primary language;
(2) the right of referral to services as an alternative to hospitalization; (3) the
availability of alternative services; (4) the right to apply for alternative
services; (5) the right to choose facilities and providers; and (6) the right to
remain at the hospital on a voluntary basis.
1.
Advisement in Primary Language
Notice of certification must be personally delivered and explained to
the person who is being held under section 5250 of the Welfare and
Institutions Code.66 Information about the notice of certification and the
patient’s rights in the process must be provided in the person’s primary
language. It must set forth the reasons for the detention and advise him or
her of the right to assistance of an advocate or attorney, to an interpreter, and
to an automatic hearing within four days.67
Thus, each person’s primary language or mode of communication
must be assessed and necessary interpreter services must be provided to him
or her before and after delivery of the notice of certification.
2.
Willing and Able to Accept Alternative Services
The notice of certification must list the specific treatment services that
65
Guidelines, Part E1 at 464. (See, Appendix 5).
Welf. & Inst. Code §§ 5251-5254.1.
67
Welf. & Inst. Code § 5252; see also Welf. & Inst. Code § 5157 subd. (c);
Protection & Advocacy, Inc., Your Right to Receive Mental Health Services
in the Language You Understand (May 2002); 42 U.S.C. § 2000d et seq.
(Title VI of the Civil Rights Act of 1964); 45 C.F.R. Part 80.
66
12
have been offered to the person on a voluntary basis, and state the person is
unable or unwilling to accept “referral” to such assistance on a voluntary
basis.68 (See Appendix 3, Statutory Form for Notice of Certification).
Under the LPS Act, “Referral” is defined, in part, as “informing the
person of available services, making appointment[s] on the person’s behalf,
discussing the person’s problem with the agency or individual to which the
person has been referred, appraising the outcome of referrals, and arranging
for personal escort and transportation when necessary.” 69 Further, “[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.”70 Finally, “[r]eferral
shall be considered complete when the agency or individual to whom the
person has been referred accepts responsibility for providing the necessary
services.”71
Thus, each person must be offered both specific information about
home and community-based alternatives to hospitalization and support in
actually obtaining such assistance.
3.
Services Available on a Voluntary Basis
The LPS Act requires that “[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.”72
At a minimum, these services should include: (1) Peer Counseling
and Support Services; (2) Entitlement Medi-Cal Specialty Mental Health
Services (See Appendix 2); (3) Non-Entitlement Realignment Mental Health
Programs; (4) Government Housing Programs; (5) County Social Service
Programs; (6) Health Care Services; (7) Substance Abuse Services; (8)
68
Welf. & Inst. Code § 5252.
Welf. & Inst. Code § 5008, subd. (d).
70
Id.
71
Id.
72
Welf. & Inst. Code § 5008, subd. (d).
69
13
Educational Services; (9) Vocational Services; (10) Transportation Services;
(11) Legal Services.73
Thus, an advocate or attorney needs to know the facility’s current
menu of comprehensive community services, and ensure that each person
subject to such detention under section 5250 has been considered for and
appropriately offered such assistance. In addition, the advocate or attorney
should determine if there are other support services that should be included
in the facility’s comprehensive menu and be made available to clients. The
facility needs to consider whether all aspects of the person’s mental health
and socio-economic needs could be met appropriately through the provision
of home and community-based alternatives to hospitalization.
4.
Application for Voluntary Services
The LPS Act provides that “[n]othing in the [statute] shall be
construed in any way as limiting the right of any person to make voluntary
application at any time to any public or private agency or practitioner or
mental health services, either by direct application in person, or by referral
from any other public or private agency or practitioner.”74
Thus, each person must be offered assistance in linking with the full
array of available home and community-based services as an alternative to
hospitalization.
5.
Choice of Facilities and Providers
The LPS Act provides that “[w]henever a county designates two or
more facilities to provide treatment, and the person to be treated, his or her
family, conservator, or guardian expresses a preference for one of these
facilities, the professional person certifying the person to be treated shall
attempt, if administratively possible, to comply with the preference.”75
73
See Welf. & Inst. Code § 14683, subd. (a) (referral for health, housing,
vocational, and other necessary services); Cal. Code Regs., tit. 9 § 1810.310,
subd. (a)(2)(A) (referral for substance abuse, education, health, housing,
vocational and other necessary services).
74
Welf. & Inst. Code § 5003.
75
Welf. & Inst. Code § 5259.2.
14
In addition, the LPS Act provides that “[p]ersons receiving evaluation
or treatment… shall be given a choice of physician or other professional
person providing such services in accordance with the policies of each
agency providing services, and within the limits of available staff in the
agency.”76
Thus, each person must be informed about and offered a choice with
respect to both the facilities where they may receive psychiatric inpatient
hospital services and the providers within such facilities.
6.
Voluntary Hospitalization
As discussed above, the LPS Act provides for the provision of
voluntary services to persons as an alternative to involuntary treatment; such
assistance can be provided on an inpatient or outpatient basis.77 State law
prohibits consideration of whether a person’s inpatient psychiatric admission
was voluntary or involuntary in determining eligibility for Medi-Cal claim
reimbursement.78 The California Department of Mental Health (DMH)
recently issued an Information Notice in which it clarified its policy that a
beneficiary may be voluntarily admitted for psychiatric inpatient hospital
services and meet the applicable medical necessity criteria, as defined under
Title 9, California Code of Regulations, Section 1820.205.79 According to
the DMH Notice, “treatment can be enhanced and positive outcomes
increased through voluntary treatment and client/provider cooperation.”
Thus, each person must be offered the option of remaining at the
hospital on a voluntary basis as an intervention and/or pending completion
of referral to outpatient services.80
76
Welf. & Inst. Code § 5009.
Welf. & Inst. Code §§ 5003, 5151.
78
Welf. & Inst. Code §§ 14021.8, 5012 (Medi-Cal or any other private or
public health plan).
79
DMH Information Notice No.: 01-01, “Clarification of Medi-Cal Policy
Regarding Voluntary Admissions to Psychiatric Inpatient Hospital Services”
(January 16, 2001).
80
Continued hospitalization pending completion of referral to alternative
services may result in a lower reimbursement rate for the hospital under
“Administrative Day Services.” “Administrative Day Services” means
services “for a beneficiary residing in a psychiatric inpatient hospital when,
77
15
B.
Pre-Hearing Preparation
Effective advocacy requires role recognition. The role of mental
health professionals is to evaluate a patient and to make recommendations
for - not dictate - appropriate services. In addition, while the role of mental
health professionals is diagnosis and treatment of persons with psychiatric
disabilities, the decision to forcibly detain a person is a legal matter.
Because the involuntary detention involves legal decision-making, the
role of an advocate or attorney includes provision of information to the
client about alternative services. A person who is detained under section
5250, as well as his or her treating professionals, may not be familiar with
the complex laws, policies and professional standards governing alternative
services, e.g., Medi-Cal rehabilitative mental health services.
Thorough pre-hearing preparation is required for effective advocacy
and includes: (1) initial investigation and client interview, (2) interviews
with staff and supportive persons, and (3) research into relevant laws and
professional standards.
1.
Initial Investigation & Client Interview
The advocate or attorney should review all available records with the
patient, including but not limited to: section 5150 documents, section 5250
documents, the file of community services maintained by the facility,
medical records for community mental health services provided prior to the
hospitalization, and patient records at the hospital, including evaluation
reports. An advocate or attorney has a right to access otherwise confidential
information as authorized by the client.81 The client interview should be
due to the lack of residential placement options at appropriate, non-acute
treatment facilities as identified by the Mental Health Plan, the beneficiary’s
stay at the psychiatric inpatient hospital must be continued beyond the
beneficiary’s need for acute psychiatric inpatient hospital services.” Cal.
Code Regs., tit. 9 § 1701; see also Cal. Code Regs., tit. 9 § 1774(a)(2)(A)
(medical necessity criteria for psychiatric inpatient hospital services requires
that beneficiary “[c]annot be safely treated at another level of care”).
81
Welf. & Inst. Code §§ 5328, subds.(j)&(m).
16
conducted in a private82 and should be held sufficiently before any scheduled
hearing to permit adequate investigation of alternatives. Adequate
investigation involves information about the client’s prior medical history
and treatment, relationships with family and friends in the community, and
relationships with all relevant medical professionals involved prior to and
during the certification process. Useful questions for clients may include the
following:
82
a.
Where do you live or prefer to live (e.g., own home, assisted
living, transitional residential program, board and care)?
b.
What are your interests for everyday activities, family relations,
friends, social contacts, work options, economic resources,
educational opportunities, cultural interests?
c.
Why were you placed at the hospital?
d.
Would you like to receive assistance so help you return home or
to live where you want? Review types of assistance in facility’s
comprehensive file and in Appendix 2.
e.
Have you received any such assistance in the past? Review
types of assistance s/he received prior to hospitalization.
f.
Do you have a favorite staff person(s) at the hospital? If so, ask
about the person(s).
g.
What do you like most about the current facility?
h.
What do you dislike most about the current facility?
i.
Do you have a favorite service provider(s) outside the current
facility (e.g., social worker or doctor)? If so, ask about the
person(s).
j.
Is there anyone who has helped you in the past? If so, who and
how did they help?
k.
Have you talked with facility staff about what you want? If so,
what did they say?
Welf. & Inst. Code § 5530, subd.(c).
17
2.
l.
Is there anyone either inside or outside the current facility who
may support what you want?
m.
Do you have a friend or family member or someone else who
you may support what you want?
n.
Do you authorize me to contact people who may have useful
information (e.g., favorite staff person at current facility or prior
setting, family member or friend)?
o.
Do you authorize me to obtain copies of records from and speak
with mental health service providers over the past year,
including at the current facility? Inform the client that you need
as much information as possible to determine how you may be
able to assist and obtain appropriate releases.
p.
What would you like to see happen at the certification review
hearing? What would you like to see happen with pre-hearing
negotiations to obtain alternative services? Do you have any
questions about the hearing and your rights?
q.
Explain what you have agreed to do at this time and what the
likely outcome will be. Do you have any other questions?
r.
Do you want to go with me to meet with your favorite staff or
other treating professionals at the facility to discuss alternative
services that you are willing to receive?
Interviews with Staff and Supportive Persons
The advocate or attorney should contact friends, family, providers or
others identified by the client as potential support, and those who have
provided and/or may provide information in support of certification. The
advocate should discuss this information with the client, including what
confidential records contain.83 An advocate has the right to interview
anyone who is providing services to the client.84 Upon request, “appropriate
staff persons” must be made available to the advocate for interview in
connection with pending matters.85 The advocate or attorney should
83
Welf. & Inst. Code § 5543, subd. (a).
Welf. & Inst. Code § 5530, subd. (b).
85
Welf. & Inst. Code § 5530, subd. (c).
84
18
interview the following staff: the professionals who signed the Notice of
Certification, professionals who have evaluated the client, and the client’s
social worker(s). Useful questions for staff may include the following:
a.
What is your understanding of what the client wants?
b.
What services or supports would be needed to support the client
in achieving what s/he wants and needs?
c.
What efforts have you made to obtain such assistance for the
client?
d.
What services or supports have you considered for the client as
an alternative to involuntary hospitalization?
e.
Have you considered whether the client’s needs could be met
with available Medi-Cal Specialty Mental Health Services?
Review Appendix 2.
f.
If one or more of the services listed in Appendix 2 were
available to the client, would it be appropriate for him or her to
receive such assistance as an alternative to hospitalization?
Review applicable medical necessity criteria for such
assistance.
g.
If the staff believes that the client could appropriately receive
alternative services if such assistance were available, ask him or
her to make a written statement outlining the services and
supports the client would need to reside appropriately at home
and/or elsewhere in the community.
h.
If the staff does not believe that alternative services would be
appropriate, ask what services and supports the client receives
at the facility that he or she could not receive at home or in the
community. Ask if there is anything else that is provided at the
facility that is not available in the community. Also ask what
specific facts or information support the professional’s
judgment. Ask if there is any other fact that supports the
judgment. Also ask what professional standards or legal
criteria support the professional’s judgment on the
appropriateness of alternatives. Ask what criteria, if any, the
professional has relied on in making the judgment.
19
3.
i.
How is the client’s care at the facility reimbursed (e.g., MediCal, Medicare), and what is the total daily cost of care?
j.
Send confirming letter to the staff person as to what was
discussed and determined at the meeting.
Research into Relevant Laws and Professional Standards
Clinical judgment is accorded considerable deference by courts. In
the Olmstead decision, the Supreme Court found that public entities may
rely on the “reasonable assessments” of professionals in determining
whether an individual “meets the essential eligibility requirements” for home
and community-base services.86
Reasonable clinical judgment, however, requires compliance with
applicable professional and legal standards. Inpatient mental health
providers may be unaware of the full scope of rehabilitative mental health
services and other support that are available, and the eligibility criteria for
such assistance. In addition, inpatient providers may not have time to make
referrals for the full array of peer support, health, educational, vocational,
social service, transportation, and legal services that may be available, and
their eligibility criteria. Further, even if submitted, such applications may be
improperly denied by other agencies. An advocate or attorney should obtain
sufficient information about consideration of alternative services and
essential eligibility criteria for such assistance to determine whether the
client is in fact qualified to receive it.
C.
Presentation at Hearing
Effective advocacy at a certification review hearing requires that the
advocate or attorney, among other things: (1) act as an advocate and
adversary; (2) challenge irrelevant evidence; (3) present evidence in support
of the client’s wishes, including applicable professional standards and law
supporting the client’s wishes; and (4) request a second opinion as needed.
1.
Act as Advocate and Adversary
When an advocate or attorney fails to act as an advocate for the
86
527 U.S. at 602.
20
client’s wishes and assumes a paternalistic or passive stance, the balance of
the system is upset and the client’s position goes unheard.87 Accordingly,
the proper role of an advocate or attorney is to “represent the perspective of
the respondent and to serve as a vigorous advocate for the respondent’s
wishes.”88 Further, “[t]o the extent the client is unwilling or unable to
express personal wishes, the attorney [or advocate] should advocate the
position that best safeguards and advances the client’s interests.”89 At the
hearing, the advocate or attorney “should engage in all aspects of advocacy
and vigorously argue to the best of his or her ability for the ends desired by
the client.”90
2.
Challenge Irrelevant Evidence
While certification review hearings are informal and the formal rules
of evidence are inapplicable,91 the advocate or attorney should seek to
exclude from consideration evidence that is “irrelevant because of
remoteness of time or dissimilarity of circumstances.”92 In addition, the
advocate or attorney should thoroughly examine the professional who
testifies in support of certification regarding the factual basis of conclusory
opinions about the client’s suitability for commitment under applicable legal
standards, including willingness and ability to accept voluntary services.93
3.
Present Evidence in Support of Client’s Wishes
An advocate or attorney should offer evidence favorable to the client’s
case and present witnesses, including friends, family, and/or mental health
professionals who support the client’s wishes. After discussions with the
client and with his or her consent, the advocate or attorney should prevent
evidence of appropriate alternatives to involuntary commitment, including,
but not limited to, voluntary rehabilitative mental health services.
Presentation of such evidence should focus not merely on the suitability of
87
See In Re Mental Health of K.G.F., supra, 29 P.3d at 500, quoting
Guidelines, Part EC2 Commentary, at 466.
88
Id.
89
Id.
90
Id.
91
Welf. & Inst. Code § 5256.4, subd. (b).
92
See Welf. & Inst. Code § 5008.2, subd. (a).
93
Guidelines, Part F5 at 483.
21
alternatives but also on the nature of actual alternatives available to the
client in the community.94 This should include information on applicable
professional standards and law governing access to home and communitybased support services (e.g., DMH Letter No.: 01-01, One-to-One Mental
Health Services).95
4.
Request a Second Opinion
If there is disagreement over the suitability of alternatives, after
discussions with the client and with his or her consent, the advocate or
attorney should request a second opinion. A hearing officer should consider
the financial and evidentiary need for an independent psychiatric evaluation
of the suitability of alternatives.96
D.
Post-Hearing Implementation
An attorney or advocate has a duty to notify the person certified of the
written hearing decision and of the right to file a request for release and to
have a hearing on the request before the superior court.97 Effective
advocacy assistance after the hearing also should include follow-up with the
client with respect to implementation of client service plans, including
discharge or aftercare plans.98 These rights should be monitored with
respect to clients for whom the hearing officer finds probable cause to detain
under section 5250 as well as clients who are released after the certification
review hearing. The provision of a piece of paper with the name and address
of community providers and/or a bus token to the client by the facility likely
fails to comply with professional standards and legal requirements for
discharge/aftercare planning.
94
Id.
See also PAI Publication #5182.01 “Individual Mental Health
Rehabilitation Services” (June 4, 2001).
96
See Conservatorship of Scharles (1991) 285 Cal.Rptr. 325, 331 (court has
duty to consider request for independent psychiatric examination in
conservatorship rehearing under section 5364).
97
Welf. & Inst. Code § 5256.7.
98
See 42 C.F.R. § 482.43(a)-(c); Welf. & Inst. Code § 5622.
95
22
APPENDIX 1: FOUR REQUIREMENTS FOR 14-DAY HOLD
(Welf. & Inst. Code § 5250, subd. (a)-(d) (emphasis added).
a.
The professional staff of the agency or facility providing evaluation99
services has analyzed the person’s condition and found the person is,
as a result of mental disorder…, a danger to others, or to himself [or
herself], or gravely disabled.
b.
The facility providing intensive treatment100 is designated by the
county to provide intensive treatment, and agrees to admit the person.
No facility shall be designated to provide intensive treatment unless it
complies with the certification review hearing required by this article.
The procedures shall be described in the county Short-Doyle plan as
required by Section 5651.3.
c.
The person has been advised of the need for, but has not been
willing or able to accept, treatment on a voluntary basis.
d.
A person is not “gravely disabled” if that person can survive safely
without involuntary detention with the help of responsible family,
friends, or others who are both willing and able to help provide for the
person’s basic personal needs for food, clothing, or shelter. However,
unless they specifically indicate in writing their willingness and
ability to help, family, friends, or others shall not be considered
willing or able to provide this help. The purpose of this subdivision is
to avoid the necessity for, and the harmful effects of, requiring family,
friends, and others to publicly state, and requiring the certification
review officer to publicly find, that no one is willing or able to assist
the mentally disordered person in providing for the person’s basic
needs for food, clothing, or shelter.
Subdivision (a) of section 5008 of the Welfare and Institutions Code defines “Evaluation” to consist of
“multidisciplinary professional analyses of a person’s medical, psychological, educational, social, financial,
and legal conditions as may appear to constitute a problem. Persons providing evaluation services shall be
properly qualified professionals and may be full-time employees of an agency providing evaluation
services or may be part-time employees or may be employed on a contractual basis.”
100
Subdivision (c) of section 5008 of the Welfare and Institutions Code defines “Intensive treatment” to
consist of “such hospital and other services as may be indicated. Intensive treatment shall be provided by
properly qualified professionals and carried out in facilities qualifying for reimbursement under the
California Medical Assistance Program (Medi-Cal)…”
99
23
APPENDIX 2 - MEDI-CAL SPECIALTY MENTAL HEALTH
SERVICES AVAILABLE AS AN ALTERNATIVE TO HOSPITAL
ADULT RESIDENTIAL TREATMENT - Rehabilitative services
provided in a non-institutional residential setting for beneficiaries who
would be at risk of hospitalization or other institutional placement if they
were not in a residential treatment program. The service is available 24
hours a day, seven days a week. Service activities include assessment, plan
development, therapy, rehabilitation and collateral.
(Cal. Code Regs., tit. 9 § 1810.203).
ASSESSMENT - Service activity that may include clinical analysis of the
history and current status of the beneficiary’s mental, emotional, or
behavioral disorder; relevant cultural issues and history; diagnosis; and the
use of testing procedures. (Cal. Code Regs., tit. 9 § 1810.204).
COLLATERAL - A service activity to a significant support person in a
beneficiary’s life with the intent of improving or maintaining the mental
health status of the beneficiary. The beneficiary may or may not be present
for this activity. The activity may include helping significant support
persons to understand and accept the beneficiary’s condition and involving
them in service planning and implementation of service plan(s). Family
counseling or therapy that is provided on behalf of the beneficiary is
considered collateral. (Cal. Code Regs., tit. 9 § 1810.206). Significant
support person means persons, in the opinion of the beneficiary or the
person providing services, who have or could have a significant role in the
successful outcome of treatment, including a person living in the same
household as the beneficiary, the beneficiary’s spouse, parents, and relatives.
(Cal. Code Regs., tit. 9 § 1810.246.1).
CRISIS INTERVENTION - Subdivision (e) of section 5008 of the Welfare
and Institutions Code defines “Crisis intervention” as consisting of “an
interview or series of interviews within a brief period of time, conducted by
qualified professionals, and designed to alleviate personal or family
situations which present a serious and imminent threat to the health or
stability of the person or the family. The interview or interviews may be
conducted in the home of the person or family, or on an inpatient or
outpatient basis with such therapy, or other services, as may be appropriate.
Crisis intervention may, as appropriate, include suicide prevention,
psychiatric, welfare, psychological, legal, or other social services.” State
24
regulations further provide that “Crisis intervention” is a service lasting less
than 24 hours to or on behalf of a beneficiary for a condition that requires
more timely response than a regularly scheduled visit. The service includes
but is not limited to assessment, collateral and therapy. Crisis intervention is
distinguished from crisis stabilization by being delivered by providers not
eligible to deliver crisis stabilization or who are eligible but deliver the
service at a site other than a provider site certified to provide crisis
stabilization. (Cal. Code Regs., tit. 9 § 1810.209).
CRISIS RESIDENTIAL - Therapeutic and/or rehabilitation services
provided in a 24-hour non-institutional residential treatment setting
providing a structured program as an alternative to hospitalization for
beneficiaries experiencing an acute psychiatric episode or crisis, and who do
not present medical complications requiring nursing care. Individuals are
supported in their efforts to restore, maintain and apply interpersonal and
independent living skills and access community supports systems. This is a
structured, packaged program with services available day and night, seven
days a week. Service activities may include assessment, plan development,
therapy, rehabilitation, collateral and crisis intervention.
(Cal. Code Regs., tit. 9 § 1810.208).
CRISIS STABILIZATION - “Crisis Stabilization” means a service lasting
less than 24 hours, to or on behalf of a beneficiary for a condition which
requires more timely response than a regularly scheduled visit. Service
activities may include, but are not limited to, assessment, collateral and
therapy. Crisis stabilization must be provided on site at a 24 hour health
facility or hospital-based outpatient program or at other provider sites which
have been certified by the department or a Mental Health Plan to provide
crisis stabilization services. (Cal. Code Regs., tit. 9 § 1810.210).
DAY REHABILITATION - “Day Rehabilitation” means a structured
program of rehabilitation therapy to improve, maintain or restore personal
independence and functioning, consistent with requirements for learning and
development, which provides services to a distinct group of beneficiaries
and is available at least three hours and less than twenty-four hours each day
the program is open. Service activities may include, but are not limited to,
assessment, plan development, therapy, rehabilitation and collateral.
(Cal. Code Regs., tit. 9 § 1810.212).
25
DAY TREATMENT INTENSIVE - “Day Treatment Intensive” means a
structured, multi-disciplinary program of therapy which may be an
alternative to hospitalization, avoid placement in a more restrictive setting,
or maintain the beneficiary in a community setting, with services available at
least three hours and less than twenty-fours hours each day the program is
open. Service activities may include, but are not limited to, assessment, plan
development, therapy, rehabilitation and collateral.
(Cal. Code Regs., tit. 9 § 1810.213).
EARLY AND PERIODIC SCREENING, DIAGNOSIS AND
TREATMENT (EPSDT) SUPPLEMENTAL MENTAL HEALTH
SERVICES - “EPSDT Supplemental Services” means those services
defined in Title 22, Section 51184, that are provided to beneficiaries under
age 21 to correct or ameliorate the diagnoses listed in section 1830.205, and
that are not otherwise covered services (e.g., Therapeutic Behavioral
Services). (Cal. Code Regs., tit. 9 § 1810.215).
MEDICATION SUPPORT SERVICES - “Medication Support Services”
means those services which include prescribing, administering, dispensing
and monitoring of psychiatric medications or biologicals which are
necessary to alleviate the symptoms of mental illness. The services may
include evaluation of the need for medication, evaluation of clinical
effectiveness and side effects, the obtaining of informed consent, medication
education and plan development related to the delivery of the service and/or
assessment of the beneficiary. (Cal. Code Regs., tit. 9 § 1810.225).
MENTAL HEALTH SERVICES - “Mental Health Services” means those
individual or group therapies and interventions that are designed to provide
reduction of mental disability and improvement or maintenance of
functioning consistent with the goals of learning, development, independent
living and enhanced self-sufficiency and that are not provided as a
component of adult residential services, crisis residential treatment services,
crisis intervention, crisis stabilization, day rehabilitation, or day treatment
intensive. Service activities may include but are not limited to assessment,
plan development, therapy, rehabilitation, and collateral.
(Cal. Code Regs., tit. 9 § 1810.227).
PLAN DEVELOPMENT - “Plan Development” means a service activity
for development of client plans, approval of client plans, and/or monitoring
of a beneficiary’s progress. (Cal. Code Regs., tit. 9 § 1810.232).
26
PSYCHIATRIST SERVICES - “Psychiatrist Services” means services
provided by licensed physicians, within their scope of practice, who have
contracted with the MHP to provide specialty mental health services or who
have indicated a psychiatrist specialty as part of the provider enrollment
process for the Medi-Cal program, to diagnosis or treat a mental illness or
condition. For the purposes of this chapter, psychiatrist services may only
be provided by physicians who are individual or group providers.
(Cal. Code Regs., tit. 9 § 1810.240).
PSYCHOLOGICAL SERVICES - “Psychological Services” means
services provided by licensed psychologists, within their scope of practice,
to diagnose or treat a mental illness or condition. For the purposes of this
chapter, psychologist services may only be provided by psychologists who
are individual or group providers. (Cal. Code Regs., tit. 9 § 1810.241).
REHABILITATION - “Rehabilitation” means service activity which
includes assistance in improving, maintaining, or restoring a beneficiary’s or
group of beneficiaries’ functional skills, daily living skills, social and leisure
skills, grooming and personal hygiene skills, meal preparation skills, and
support resources; and/or medication education.
(Cal. Code Regs., tit. 9 § 1810.243).
TARGETED CASE MANAGEMENT/BROKERAGE - Services that
assist a beneficiary to access needed medical, educational, social,
prevocational, vocational, rehabilitative, or other community services. The
service activities may include communication, coordination, and referral;
monitoring service delivery to ensure beneficiary access to service and the
service delivery system; monitoring of the beneficiary’s progress; and plan
development. (Cal. Code Regs., tit. 9 § 1810.249).
THERAPY - “Therapy” means a service activity which is a therapeutic
intervention that focuses primarily on symptoms reduction as a means to
improve functional impairments. Therapy may be delivered to an individual
or group of beneficiaries and may include family therapy at which the
beneficiary is present. (Cal. Code Regs., tit. 9 § 1810.243).
27
APPENDIX 3 - § 5252. Necessity for, and form of, notice of certification
A notice of certification is required for all persons certified for intensive
treatment pursuant to Section 5250 or 5270.15, and shall be in substantially
the following form (strike out inapplicable section):
The authorized agency providing evaluation services in the County of
________ has evaluated the condition of:
[name, address, age, sex, marital status]
We the undersigned allege that the above-named person is, as a result of
mental disorder or impairment by chronic alcoholism: (1) A danger to
others, (2) A danger to himself or herself, (3) Gravely disabled as defined in
paragraph (1) of subdivision (h) or subdivision (l) of Section 5008 of the
Welfare and Institutions Code.
The specific facts which form the basis for our opinion that the abovenamed person meets one or more of the classifications indicated above are as
follows:
(certifying persons to fill in blanks) ______________________________
[Strike out all inapplicable classifications.]
The above-named person has been informed of this evaluation, and
has been advised of the need for, but has not been able or willing to
accept treatment on a voluntary basis, or to accept referral to, the
following services:
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_______________________________________________________
We, therefore, certify the above-named person to receive intensive
treatment related to the mental disorder or impairment by chronic alcoholism
beginning this ______ day of _________, 20___, in the intensive treatment
facility herein named __________
__________
(Date)
Signed _______________________________________________________
Signed _______________________________________________________
28
Countersigned _________________________________________________
(Representing facility)
I hereby state that I delivered a copy of this notice this day to the abovenamed person and that I informed him or her that unless judicial review is
requested a certification review hearing will be held within four days of the
date on which the person is certified for a period of intensive treatment and
that an attorney or advocate will visit him or her to provide assistance in
preparing for the hearing or to answer questions regarding his or her
commitment or to provide other assistance. The court has been notified of
this certification on this day.
Signed____________________
Peer/Self-advocacy Program Library @ PAI
December, 2003
29