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Mental Health Service Act (Proposition 63)
The California Psychiatric Association has been a founding partner in the development of a unique effort to
fully fund the public mental health system in California. After a lot of hard work Proposition 63 became the
Mental Health Service Act (MHSA), operative January 1, 2005. CPA raised $60,000 through its members (which is
distinct from the $25,000 recieved from the APA) to pass the MHSA. CPA was responsible for endorsement and pledges
of contributions from the American Psychiatric Association, California Medical Association, the California Academy
of Family Physicians, and the California District of the American Academy of Pediatrics.
The CPA has established the CPA Proposition 63 Implementation Task Force with representatives from all district
branches and major committees of the CPA which is disseminating an evaluation tool for psychiatrists to use in
evaluating local MHSA Plans.
Proposition 63 will produce $1 billion annually in perpetuity for California’s public mental health system, and
is being closely watched by other states and countries as a possible model for transformation of mental health
systems worldwide.
The CPA is actively engaged in the appointments process to the MHSA Oversight and Accountability Commission and
is putting forward former APA President Marcia Goin for the service provider position on the commission.
Implementation will be driven at the county level. The state Department of Mental Health is working with
counties to establish stakeholder processes. Grants developed from these local processes will go before the MHSA
Oversight and Accountability Commission and will present a 3-year plan for implementing the MHSA in that county.
The CPA is working with the CMA and other stakeholder groups to insure that local CPA representatives engage and
effectively participate in the local stakeholder process.
Legislative Advocacy
1. CPA Bill Watch for 2005.
- CPA has identified a number of spot bills which could be used to promote psychologist expansion of scope of
practice into the practice of medicine, specifically prescribing. CPA will monitor these bills closely and CPA has
put in motion a “rapid strike” strategy in the event that these bills are amended to include medication
prescription authority for psychologists.
- SB 534 (Torlakson) Anti-depressants and Suicide Risk - Senator Tom Torlakson (Contra Costa) held
hearings in August 2004 on the subject of suicide risks for children and adolescents taking anti-depressants.
Senator Torlakson followed up in 2005 with legislation, SB 524, mandating CME’s on anti-depressant medications for
all physicians prescribing for depression and related issues. CPA has opposed AB 524 on the basis that current CME
requirements are already quite high; that SB 524 might diminish access to care; that enforcement of AB 88
(Thomson, 2000 - Mental Health Insurance Parity Physician) might be more effective to ensure availability of
competent care; cited physician, and in particular psychiatrists, flight from HMO’s as contributing factor in lack
of effective treatment; and advocated that more effective measures exist to ensure access to competent treatment
of depression such as the joint APA/AACP websites:
www.PhysicianMedGuide.org and www.ParentMedGuide.org (110,000
“hits” a month combined).
- CPA fought valiantly for AB 450 by Assemblyman Yee to define harmful content in violent video games and
prevent their acquisition by children under 17 years of age. Unfortunately insufficient votes were available on
the floor of the Assembly for passage, so the bill was put on an inactive file. Still, this represents
considerable progress from last year’s version of the same bill which did not pass out of committee. AB 450 was
specifically tailored to meet constitutional tests which prevent restraints on free speech. The author is sure to
continue this fight.
- A MICRA (Medical Injury Compensation Reform Act) Bill to alter the $250,000 non-economic damages cap
and other requirements of the current law was expected and had not emerged by in the 2005 legislative session. The
possibility that such a bill would be introduced in 2006 are unknown, but cannot be discounted. CPA works in
coalition with 80 other organizations to educate lawmakers that premium increases fatally affect access to medical
care. CPA and its partners will continue to monitor bills to assure that “spot” bills and “gut and amend” bills do
not emerge to initiate MICRA challenges.
- AB 733 (Nation) is sponsored by the Marriage and Family Therapist Association of California and
addresses issues related to California Appellate Court decisions in the Ewing cases which created a new duty to
warn when credible threats of violence are communicated by third parties. CPA has identified a number of
problematic issues with Ewing and current language in statute. As a small step towards addressing these overall
concerns CPA has offered language to the sponsors which has as its objective to clarify that reasonable
alternatives to warning should not entail automatic liability. The bill enjoyed great success appearing on consent
calendars throughout the Assembly, but has subsequently been made a 2 year bill because of issues raised by Senate
Judicial Committee staff.
- Senate President Pro Tem Perata authored SB 572 to extend mental health insurance parity benefits to
most DMH-IV disorders excepting substance abuse disorders. The Senator’s staff is also working with the CPA and
other advocates in dialogue with the Department of Managed Health Care to assure successful implementation of the
current law, specifically addressing access issues. Because of costs concerns, SB 572 is now a 2 year bill, which
means that all action on the bill has ceased until 2006.
- CPA will be examining a number of ballot measures which will have an impact on psychiatric treatment
and services that are proposed for the November 8, 2005 ballot. Of the 72 measures circulating, one will seek to
change term limits; five others will seek to lower the costs of medications for individuals without medication
benefits; another could cap expenditures of Proposition 63 funds in coming years; one would repeal Proposition 63;
and one carries content similar to Scientologist sponsored bills of recent years.
2. Anti-treatment Bias - Church of Scientology and Others.
Measures are proposed from time-to-time which directly or indirectly discredit the effectiveness of medical
treatment, or challenge the biological nature of mental illness. In the last several years the Church of
Scientology, and its political arm the Citizen’s Commission on Human Rights, have sought to influence policy by
claiming that there is a conspiracy to “drug our children’ or claim that there is no such thing as ADHD. CPA is
THE leader in the capitol based mental health advocacy community on these issues. We provide a quick response to
legislators and legislative staff with data, expert opinion, journal articles, background papers and briefings.
Legislators and committee staff depend on us to provide authoritative testimony ranging from physicians ‘in the
trenches’ to experts at NIMH. To date, bill proposals advanced by such proponents have died in first policy
committees. We scan newly introduced bills very carefully in order to be vigilant to the eruption of new
anti-treatment initiatives.
No Scientology influenced or sponsored bills have emerged to date in the 2005-2006 legislative session.
However, there is a ballot initiative circulating that would prohibit schools from excluding or otherwise
penalizing children solely on the basis of those parents refusing psychiatric evaluations or treatment for them.
Restriction to Treatment Bills defeated in the 2003-2004 Legislative Session:
- AB 2286 (Mountjoy) CPA 2004 priority bill, Oppose position. Psychotropic Drugs: Would have prohibited
school personnel communicating concerns to parents regarding possible disorders, evaluations and medications and
sought to establish that a refusal to seek a psychiatric evaluation or treatment could not be used as the sole
basis for exclusion from school or school based activities. CPA inspired amendments allow discussion and
referral by qualified school district personnel. CPA offered further amendments to correct pejorative definition
of medications. The author eventually ‘gutted and amended’ bill because of insurmountable opposition. This is at
least the 2nd bill in recent years to address this issue. CPA expects to see the issue return with Church of
Scientology support again.
- AB 2645 (Mountjoy) CPA 2004 priority bill, Oppose position. Foster children psychotropic utilization
study – Requires a study of psychiatric medication use by foster children in 4 counties. Confused, vague study
design was prejudicial to foster access to appropriate mental health treatment. AB 2645 died in committee
because of serious concerns about its merits. This is at least the 2nd bill in recent years to address this
issue. CPA expects to see the issue return with Church of Scientology support again.
3. Scope of Practice.
Psychologist Prescribing Bills: The CPA has defeated prescribing bills in 1995 (SB 777), 1997 (SB 694),
1998 (SB 2050) and 2000 (AB 1144). We are currently monitoring the process of implementation of the New Mexico and
Louisiana state statutes which authorizes psychologist prescribing, as well as bills in 21 other states that have
been slated for introduction in 2005. To date none of those bills has made significant headway.
- Prescription 2005: Psychologists were poised to present the California Legislature with a fifth
prescribing bill in 2005. To date we have not identified that bill, though three “spot bills” have been
introduced in 2005 which could be vehicles for psychologist practice of medicine scope expansion. At this date
each is inactive. The chances for such a bill diminish with each passing day until the end of this year’s
legislative session on September 29, 2005, because the last day to hear bills in their house of origin was June
3, 2005 for this year’s session. Special waiver of rules would have to be granted for them to be amended, and
move through hearings and review at this stage. Bills of this type, what are commonly referred to as “gut and
amend” bills are being discouraged as a matter of policy by the leadership in each house this year. CPA cannot
afford to be complacent, however, because the last bill introduced in 2000 was “gut and amended” in the late
stages of that year’s legislative session. CPA will continue to monitor for a bill until the wee hours of the
last day of the 2005 session. We expect a bill could contain provisions for licensing “medical psychologists”
who would have a post-doctoral master’s degree in psychopharmacology acquired by completing 450 hours of
classroom instruction. Defeating this bill will be a CPA top priority. The CPA has a multi-front strategy in
play to defeat this prospective legislation.
- Defeated in the 2003-2004 Legislative Session: Licensed Clinical Social Worker Diagnosis. SB 1853
(Perata) would have allowed diagnosis authority for LCSW’s. Social workers rejected several amendments and
negotiations broke down. Opposition from the CPA, CMA and psychological association was fierce right up to the
last hours of the 2003-2004 legislative session. Ultimately SB 1853 was soundly defeated as the sponsors and
author could only muster 10 votes for the measure on the floor of the Assembly.
4. Medical Records Privacy Cleanup Bill Signed by the Governor in 2004.
SB 598 (Machado) takes effect January 1, 2005. The California Psychiatric Association participated in a
workgroup that produced. SB 598. Amendments to California’s Medical Records Privacy Act in 1999 had unintended
consequences that made more difficult the coordination of care between licensed mental health care providers
without commensurate improvements in patient privacy (the aim of the original amendments.) SB 598 provided a
corrective, providing for a permissive authorization that allows for communication and coordination between
treatment providers for the purposes of evaluation and treatment, thus insuring higher quality of care and patient
safety as well as preserving patient privacy.
5. Outpatient Commitment Implementation.
The CPA explored the prospect of introducing clean-up legislation in this year’s legislative session. We are
concerned because:
- The state Department of Mental Health is actively discouraging Proposition 63 funds for AB 1421
implementation.
- AB 1421 “sunsets” January 1, 2008, i.e. it’s authorization expires.
- The sole pilot program in Los Angeles County is an insufficient litmus test for effectiveness.
- No funding was attached to AB 1421. Counties cite lack of funds for not implementing.
- AB 1421 does allow pilot programs, yet counties are unclear on this point.
- Mistaken notion that all county enrollees must be offered voluntary services specified in AB 1421 before the
county can enroll court ordered patients.
- Board of Supervisor resolution re ‘no reduction in voluntary services’ is not now necessary because of
Proposition 63.
A March 2005 5-year report on New York States Kendra’s Law implementation demonstrates the potential
effectiveness for the Assisted Outpatient Treatment (AOT) embodied in AB 1421. A table from that report is
directly below and indicates just a few of the highly beneficial outcomes:
Table 10
Reduced Incidence of Significant Events for AOT Recipients |
| |
Prior to AOT |
During AOT |
Percent Reduction |
| Incarceration |
23% |
3% |
87% |
| Arrest |
30% |
5% |
83% |
| Psychiatric Hospitalization |
97% |
22% |
77% |
| Homelessness |
19% |
5% |
74% |
The entire report is available at:
http://www.omh.state.ny.us/omhweb/Kendra_web/finalreport/AOTFinal2005.pdf.
6. Mental Health Insurance Parity.
The CPA surveyed it’s membership this Fall to provide data that will form the basis of written testimony to the
Department of Managed Health Care (DMHC) on proposed access regulations. There is an emerging consensus in the
capitol that implementation of the law, AB 88 (Thomson) represents a failure of access. Lack of access to mental
healthcare results in a lack of parity in mental health treatment. In addition to testifying on proposed access
regulations that are currently being developed at the DMHC for health plans, we are very encouraged by budget
trailer bill language in SB 1103 that will require a report to the Legislature in March of 2005 assessing the
implementation of mental health parity. That report has still not been released as of the date of printing. It
will collect, review, and assess the achievements and failures of mental health parity. The CPA has submitted
written testimony to that as well, and made oral presentations to the Clinical Advisory Panel of DMHC on access
problems as well as participated in a parity working group of the California Coalition of Mental Health and is a
signatory to its recommendations for reform.
7. CPA 2003-2004 Children Priority Bill Status, 2003-2004.
- SB 1793 (Yee) was signed by the Governor and was a priority bill for the CPA in 2004. It takes effect
January 1, 2005. This bill would require every video game retailer to post a sign providing information about
a video game rating system or notifying consumers that a rating system is available to aid in the selection
of a game, and to make available, upon request, information explaining the system. This provision would enhance
parents’ ability to excise control over their children’s exposure to the harmful content of violent video games.
Assemblyman Yee will has authored AB 450 in 2005 which seeks stronger protections for children and will most
likely be co-sponsored by the CPA and the American Academy of Pediatrics California Chapter.
- AB 2502 (Keene) was a priority bill for the CPA in 2004 and takes effect January 1, 2004. Existing
law authorizes a juvenile court judicial officer to make orders regarding the administration of psychotropic
medications for a dependent child who has been removed from the physical custody of his or her parent. In
many cases very ill children have waited for weeks and in some cases months for approval of medication orders.
This bill would require the judicial officer to approve or deny, in writing, a request for authorization to
administer psychotropic medication, or set the matter for hearing, as specified, within 7 court days, thus
alleviating potential suffering and adverse consequences of delayed treatment.
8. ACT Programs: Assertive Outreach to the Homeless Mentally Ill.
The CPA worked in coalition with other mental health advocacy groups in 2005 to insure that this year’s budget
continued an ongoing augmentation for the AB 34/AB 2034 (Steinberg) programs which provide integrated services and
outreach to those homeless who have a mental illness. In a year that saw a budget deficit that came in at $8
billion, securing a budget appropriation of $55 million for the continuance of these programs was a great victory.
The 2006 budget proposal by the Governor contains an ongoing $55 million line-item. CPA will monitor this item if
budget priorities shift in the negotiations between the legislature and the Governor.
9. Diversion from Criminalization of those with a Mental Illness.
CPA staff attended a policy forum in October 2004 co-sponsored by the TAPA Center for Jail Diversion, the APA,
and the Council of State Governments. The subject encompassed advocacy to shift resources to community based
services from the justice system for those with mental illness. Fiscal implications were analyzed. Advocacy
approaches in California were discussed and the APA Resources Kit will be utilized to guide advocacy strategies
developed by participants from California, particularly in regard to the Proposition 63 implementation process.
10. Medi-Cal Reimbursement Victories in 2004-2005.
- CMA v. Bonta. The CPA supported a CMA lawsuit against state mandated cuts of 5 % for three successive
years (total, 15%) of the Medi-Cal provider reimbursement rates. A court ruled in favor of the CMA early in 2005
and that ruling has been appealed by the state.
- AB 939 (Yee) was a CPA priority bill for 2003-2004 which took effect on January 1, 2005. AB 939
simplifies contracting and credentialing issues with out-of-county mental health plans for our psychiatric
physicians by allowing those physicians to contract with local hospitals for those out-of-county patients.
Hospitals in turn contract with the appropriate counties and receive a global rate that covers hospital costs,
plus a separate fee for physician services – a win-win situation.
AB 939 removes a significant Medi-Cal system barrier that often results in psychiatrists not getting paid.
Currently a physician must contract with each surrounding county to qualify for Medi-Cal reimbursement for
patients from those counties. Administrative burden for physicians who work with patients from many counties is
quite high. Some physicians report working with as many as 7 counties! It is easy to understand and quite common
for psychiatric physicians to treat out-of-county patients without the required Medi-Cal contract. The end result:
psychiatrists don’t get paid, or hospitals pay those physicians without receiving reimbursement in turn. AB 939
fixes this problem.
Regulatory Advocacy
1. Workers Compensation.
CPA worked hard in the Fall of 2004 and early in 2005 in concert with the CMA and other medical specialty
societies to persuade the state Division of Worker’s compensation to accept nationally recognized professional
association treatment guidelines. CPA provided APA treatment guidelines to the Division of Workers Compensation
for adoption as treatment standards for care to psychiatrically injured workers. CPA also testified in favor of
retaining current assessment tools in preference to other, corporate type tools that were put on the table. CPA
also submitted testimony to emphasize the importance of continuity of care in doctor patient relationships when
establishing provider networks for workers compensation treatment.
2. Psychologist Integration into Medical Staff of State Hospitals.
AB 947 (Gallegos) requires psychologists to be admitted to state hospital staffs. While the language in
the bill specifically states that the intent of the bill is not to expand the scope of practice of psychologists,
we are very concerned that a pilot program will be set up in the State Hospitals in which total care will be in
the hands of ‘attending’ psychologists. A July, 2004 Bureau of State Audits Report recognizes that legal
restrictions on psychologists should make such a result impossible. The Report raises questions concerning how the
pilot in its current form can be implemented without violating statutory and case law governing scope of practice.
One attempt to adopt “underground” regulations for psychologists to order seclusion and restraints, was
thwarted in February, 2005 by the Office of Administrative Law (OAL) - most likely because of several years of CPA
legal advocacy to educate the OAL, only to be followed by a mysterious reversal by OAL in April 2005. Formerly,
the OAL ruled that Department of Health Service (DHS) proposed regulations would have regulatory impact and
therefore must be publicized and submitted to public comment, which they had not been. DHS then proposed a further
set of regulations, and without comment, the OAL reversed itself and ruled that they did in fact have no
regulatory effect and therefore were not subject to public comment. These most current regulations allow for
psychologist admitting, transferring and discharging of patients from all California hospitals, as well as the
ordering of seclusion and restraints, and the release of seclusion and restraint orders by psychologists. CPA is
opposing those regulations.
“Attending/co-attending” pilot programs are still pending at all four state hospitals. CPA’s State Hospital
Task Force is monitoring developments.
3. Managed Health Care.
The CPA participated in is actively engaged with the Department of Managed Health Care advocating the
following:
- Contracts must be understandable and fair to physicians and other providers.
- Reimbursement rates must be fair, equitable and meet “community standards.”
- Reimbursement must be reliable and timely.
- A treatment and/or reimbursement denial dispute resolution and appeal processes must be user friendly and
render decisions expeditiously.
- Utilization review and dispute resolution must be rational, use evidence based standards, and serve the
medical needs of the patient first and foremost.
- Psychiatrist, primary care physician and other provider relationships must “mesh” and work smoothly to
provide easy communication and close collaboration for necessary treatment.
- Behavioral carve-outs and parent health plans must work together closely to maintain continuity of care for
beneficiaries served by both, and to ensure timely coordination of services, authorizations, and reimbursements.
Legal Advocacy
CPA Legal Counsel plays a significant role protecting psychiatry and its patients.
1. Mental Health Services Act (MHSA) (2005)
When the state Department of Mental Health (DMH) issued guidelines in May 2005 which stated that “All programs
and services shall be voluntary in nature” it essentially limited county options in applying for MHSA funds for
individuals who have involuntary status. CPA counsel provided a legal opinion to DMH which indicated that the MHSA
in fact allowed for a number of uses of MHSA funds for involuntary status individuals and that DMH was
unauthorized by the Act to adopt these guidelines.
2. Ewing v. Goldstein; Ewing v. Northridge Medical Center (2005)
CPA offered amendment language to AB 733 (Nation), which addresses concerns raising by the Ewing cases, in
order to clarify what duties therapists have in relation to credible threats of violence and to limit automatic
liability if a therapist employed a reasonable alternative designed to protect an intended victim in the place of
a warning to the intended victim.
3. Ewing v. Goldstein; Ewing v. Northridge Medical Center (2004)
CPA has joined a legal effort seeking California Supreme Court review of two appellate decisions expanding the
duty to warn of a patient’s threat of violent behavior.
4. State Hospitals (2002-2004)
The CPA provides legal support to State Mental Hospital psychiatrists in maintaining the physician role as
attending physician.
5. California Attorney General Opinion 02-102 (December, 2002)
This opinion adopts the CPA position that the California Board of Psychology may not authorize psychologist
prescribing and that the legislative prohibition of such prescribing is constitutional.
6. Ford v. Norton (June, 2001)
Appellate court decision adopts CPA amicus brief position that psychologists are not legally protected if they
authorize the early release of patients on an involuntary LPS hold.
7. California Office of Administrative Law 2001 DMH Determination No. 2 (March, 2001)
The Administrative Law Office adopts CPA position that California Department of Health Services underground
regulations permitting non-physicians to order seclusion and restraint were not authorized.
8. Rademan v. Superior Court (January, 2001)
This appellate court decision adopts CPA amicus brief position that psychotherapist-patient privilege protects
psychiatric records from Medical Board subpoenas where there is no patient consent to disclosure.
9. Ventura County Demedicalization (1999-2000)
CPA legal opposition to Ventura County demedicalization of its mental health services plays a significant role
in reversing the County’s removal of mental health services from its Healthcare Agency and merging them into its
Social Services Agency.
10. Colln v. Ventura (2000)
The CPA and NAMI-National file an amicus brief in successful federal lawsuit to prohibit County jail use of
restraint chair on mentally ill inmates.
CPA legal opposition to Ventura County demedicalization of its mental health services plays a significant role
in reversing the County's removal of mental health services from it's Healthcare Agency and merger into it's
Social Services Agency.
Joint Policy Advocacy, and Policy Alliances
1. House of Medicine.
California Medial Association. The CPA and it’s staff coordinate with the CMA over such issues as scope of
practice, managed care reform, fair contracting and payment issues, as well as possible MICRA challenges. CPA
attends meetings of the CMA Council on Legislation, specialty lobbyist meetings, CMA Legislative Advocacy Day, and
coordinates positions on legislation with the CMA and many other specialties, particularly pediatric and family
physicians.
2. National Alliance for the Mentally Ill (NAMI), California.
NAMI California is the “State’s Voice on Mental Illness” and is comprised of families of and individuals with
severe and persistent mental illness. We continue to enjoy a close and collaborative relationship with this
powerful advocacy organization. We attend the NAMI California annual conferences each year and host a table
displaying CPA brochures and other materials. NAMI attendees particularly like our “Psychiatry On Call” series of
short informational pieces on various illnesses and treatment issues. We are currently at work with NAMI
California exploring joint policy initiatives for next year’s legislative session.
3. California Coalition for Mental Health (CCMH).
The CPA has been a member of this 35 organization coalition since it’s founding over a decade ago. Two CPA
members alternate for the North-South meeting and they and staff regularly attend the bi-monthly meetings. CCMH
operates on consensus basis with regard to legislation and budget issues, as well as regulatory issues like mental
health insurance parity. CPA is a regular participant in the annual CCMH Legislative Day in May.
4. Union of America Physicians and Dentists (UAPD).
We work closely with UAPD, which directly represents physicians employed by the state, to support state
hospital psychiatrists on issues of scope of practice and medical responsibility. Currently we are coordinating
with UAPD on the Hospital “Attending” Psychologist Pilot Project promulgated by state DMH’s Special Order 128
(draft) of September 23, 2004 which seem to be in a holding pattern. UAPD also is a co-plaintiff with the CPA in a
lawsuit against the state Office of Administrative Law over hospital regulations allowing psychologists to admit
and discharge patients as well as order and release seclusion and restraints.
5. California Association of Physician Assistants (CAPA).
We continue our efforts to forge strong relationships with allied health professionals. The CPA Government
Affairs Committee recently heard from CAPA President, Robert Miller, on the scope and practice of Physician
Assistants. CAPA and CPA are presenting booths at each other’s respective conferences. In late October, 2005 the
CPA will participate in the CAPA conference in Palm Springs.
6. Depressive Bi-Polar Support Alliance (DBSA).
One of our members sits on the DBSA Board of Directors. DBSA collaborate on projects such as our mutual
opposition to the last psychologist prescribing bill in 2000.
7. California Academy of Emergency Physicians (CalACEP).
CalACEP and CPA have formed a joint task force to study the problems of patients who need psychiatric services
flooding local emergency departments. This joint task force will issue a joint white paper which will identify
models for best practices and offer solutions for emergency departments across California.
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