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F I S C A L I M P A C T R E P O R T
SPONSOR HJCS
ORIGINAL DATE
LAST UPDATED
02/10/07
02/26/07 HB 609/HJCS
SHORT TITLE Mandatory Community Treatment Act
SB
ANALYST Hanika Ortiz
ESTIMATED ADDITIONAL OPERATING BUDGET IMPACT (dollars in thousands)
FY07
FY08
FY09 3 Year
Total Cost
Recurring
or Non-Rec
Fund
Affected
Total
$.1
(see narrative)
Recurring General
fund
(Parenthesis ( ) Indicate Expenditure Decreases)
SOURCES OF INFORMATION
LFC Files
SUMMARY
Synopsis of Bill
The House Judiciary Committee Substitute enacts the “Mandated Community Treatment Act"
allowing a court to order outpatient services for a person over age 18 suffering from a mental
illness that has refused voluntary mental health treatment. The bill allows specified persons to
file a petition for an order authorizing mandated community treatment and describes the required
contents of the petition and hearing.
The bill provides definitions, to include “brain injury" from traumatic or acquired origins; and,
“capacity" to include the ability to make informed mental health decisions.
To be a candidate for mandated community treatment, the individual must:
.
lack capacity;
.
be 18 years of age or older;
.
be suffering from a mental illness;
.
have refused voluntary mental health treatment or is unlikely to participate voluntarily;
.
be in need of mandated treatment to prevent a relapse or deterioration that will likely result in
serious harm to self or others;
.
likely benefit from mandated community treatment; and
.
be someone whose lack of compliance with treatment for mental illness has:
o
at least twice within the last forty-eight months been a significant factor in necessitating
hospitalization or services in a mental health unit or correctional facility;
o
resulted in one or more acts of serious violent behavior toward self or others or serious
threats of, or attempts at, serious physical harm to self or others within the last forty-eight
months;
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House Bill 609/HJCS – Page
2
o
resulted in the person being hospitalized or incarcerated for at least six months for acts
other than petty misdemeanors and the person is to be discharged or released within the
next thirty days; or
o
resulted in the person being hospitalized or incarcerated for a period of six months or
more and the person was discharged or released within the past sixty days.
The Act specifies who may petition for an order of mandatory community treatment, what that
petition must consist of, and what documents must accompany such a petition. It specifies what
testimony must be provided by the petitioner, including requirements for a physician testifying
on the petitioner’s behalf and requires a detailed written treatment plan at the time of the hearing.
The Act outlines how the disposition of the case shall proceed, including evidence-based services
and alternative health practices that may be included in the treatment plan if the court issues an
order for mandated treatment. The Act expressly forbids electroconvulsive therapy to be
included in any treatment plan. The Act makes provisions for staying, extending, vacating, or
modifying an order.
The Act addresses the respondent’s rights, including the right to be treated with respect and
dignity and provided with as much autonomy as possible; the right to have the judge consider
valid advance directives (provides for exceptions if such treatment is refused in the directive; is
infeasible, ineffective or unavailable; or, conflicts with other applicable law) or the opinion of a
designated mental health care decision maker; the right of the respondent to request and present a
second opinion and alternative treatment plan using private or public resources; the right to
refuse treatment; the right to testify about why previously offered treatment was refused; the
right to file a complaint regarding the treatment provided pursuant to the plan; and the right to
request a court extension to provide time for the respondent’s attorney to review any proposed
mandated treatment plan.
The Act stipulates what constitutes failure to comply with a mandatory community treatment
order and actions to be taken in the event an individual fails to comply.
The Act provides for holding all records or information pertaining to the petition confidential and
closed to the public with the exception of parties recognized by the court as having a legitimate
interest in the case, and penalties if that information were to be made public.
The Act provides criminal and civil actions for making a false statement or providing false
information or testimony in a petition or hearing under the provisions of the Act.
FISCAL IMPLICATIONS
HB 609 does not include an appropriation for the operation and administration of the services
required under the Act. A separate appropriation bill (HB 835) this session requests $5 million
for this and other outpatient mental health services.
There will be an administrative impact on HSD to implement a study and provide educational
materials, but that impact is expected to be absorbed within available resources.
No comprehensive cost studies have been conducted in states with similar legislation. Fiscal
implications for state agencies are dependent on the number of petitions and the number of
persons ultimately found subject to this Act. These numbers have been estimated differently by
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House Bill 609/HJCS – Page
3
opponents and proponents of this bill and are unknown at this time.
HSD/MAD report Medicaid provisions and private insurance requirements may not authorize a
hospital to bill Medicaid for a 72-hour hold if the assessment shows no dangerousness meeting
the inpatient civil commitment criteria; and, the assessment is primarily for the purpose of
establishing a mandated community treatment order. Other federal block grant dollars may not
be used for inpatient services. These services will have to be funded through available private
insurance, self-pay, or state general fund dollars.
CD believes this bill could reduce the prison population and probation/parole caseloads, to at
least a minimal degree, by diverting individuals with mental illnesses (who would otherwise
commit crimes) into treatment. It could provide a significant alternative to prison/incarceration.
SIGNIFICANT ISSUES
The AGO reports that “Mandatory Community Treatment" was conceived as a less restrictive
alternative to involuntary hospitalization for people at risk of being dangerous or gravely
disabled without treatment. It arose as a recognition by the courts that noncompliance with
treatment was a common cause of repeated involuntary hospitalizations and a barrier to less
restrictive treatment alternatives. By using the moral authority of the court, outpatient
commitment was envisioned as a means to reduce relapse, reduce involuntary hospitalizations,
and improve the effectiveness of out-patient care by improving treatment adherence.
In 1999, New York State enacted legislation that provides for assisted outpatient treatment for
certain people with mental illness who, in view of their treatment history and present
circumstances, are unlikely to survive safely in the community without supervision. This law is
commonly referred to as “Kendra’s Law" and was named after Kendra Webdale, a young
woman who died in January 1999 after being pushed in front of a New York City subway train
by a person who was not receiving treatment for his mental illness.
The Albuquerque City Council adopted a version of “Kendra’s Law" in response to the August,
2005, shooting deaths of five people by a man who has a diagnosis of schizophrenia and was not
taking his medication. State District Judge Valerie Huling overturned Albuquerque's version of
Kendra's Law and ruled that it conflicted with state statutes prohibiting forced medication for
people capable of giving informed consent. The Judge ruled the ordinance "exceeds
Albuquerque's exercise of municipal power".
Forty two other states have enacted laws similar to this bill.
PERFORMANCE IMPLICATIONS
The Attorney General’s Office has not commented on this substitute bill and; if concerns raised
in the original bill were addressed adequately.
ADMINISTRATIVE IMPLICATIONS
The Act requires HSD to develop educational and training materials and to make these available
to judicial staff, providers, law enforcement, and the general public; and, five years after the
bills’ enactment conduct an analysis of the Act to be reported to the appropriate interim
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4
legislative committee no later than September 1, 2013. The Act also provides for additional
annual data collection and reporting requirements.
CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP
Relates to HB 835, which requests $5 million for implementation and operation expenses for
mandated community treatment and operating expenses for other outpatient mental health
treatment programs for FY08.
OTHER SUBSTANTIVE ISSUES
HPC reports that The Interagency Behavioral Health Collaborative held several public meetings
to discuss in detail what elements to include in the language of a proposed law regarding
respondents’ rights, criteria and process clarification, and evaluation and sunset clauses. This bill
appears to have included almost all of the suggestions that were adopted by the Collaborative in
2006.
ALTERNATIVES
HSD/MAD suggests an alternative being funding of the treatment guardian program that
provides treatment guardians for individuals unable to make treatment decisions. Some believe
that this is too cumbersome a process to deal with situations in which individuals in the
community need quick intervention to prevent deterioration of an individual’s condition and
possible harm to others.
Another alternative proposed by HSD/MAD is to aggressively implement the psychiatric
advanced directive (PAD) law passed last session to determine if allowing persons to indicate
while they are capable of making a decision, what treatment they want to occur during a crisis.
The impact, enforcement and availability of PADs once executed are not yet clear in states or
programs that have aggressively implemented the use of such documents. PADs should be
aggressively implemented, but it is unclear what the impact of such documents will have on the
individuals who might be subject to mandated community treatment. HB 609 requires the court
to consider any existing and valid PAD in determining the treatment to which the respondent
would be subject
.
WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL
Individuals who may soon represent a threat to others due to mental illness and who refuse to
accept treatment may still not be treated until they become an eminent threat to others or until
they are subject to other civil commitment or treatment guardian laws.
QUESTIONS
1.
Are there sufficient funding sources identified for mandated treatment.
2.
What will happen in areas of the state where comprehensive services are not available.
AHO/csd