California’s annual legislative session ended on September 30. Governor Newsom signed into law a record number of bills this year that impact serious illness care. Four of the bills are focused on improving decisionmaking. Four of the bills focus on underserved populations, specifically mental health, developmental disabilities, homelessness, and prisoners. Four of the bills are focused on serious illness. Two of the bills are focused on larger reform of the guardianship process or addressing homelessness and indirectly impact decisionmaking in the context of serious illness.
The most important bill this year is AB 2338, which establishes in statute for the first time how healthcare providers are to select a surrogate decisionmaker for a patient who lacks capacity and has not named someone. CCCC worked closely with the California Hospital Association (CHA), California Medical Association (CMA), the Alliance of Catholic Healthcare, and the California Association of Long-Term Care Medicine (CALTCM) to get this bill amended. As originally introduced, this bill would have created barriers to providing the best for patients. As amended, this bill codifies person-centered surrogate selection.
With the end of the current legislative session, the following bills are now set to become law on January 1, 2023:
AB 2288 (Chaptered 21) Advance Directive & Mental Health Treatment
This bill revises the statutory advance health care directive form to clarify that a person may include instructions relating to mental health treatment in their advance directive.
AB 2338 (Chaptered 782) Healthcare Decision-Maker Hierarchy
This bill clarifies that if an adult patient lacks the capacity to make health care decisions, the following legally recognized health care decisionmakers may make health care decisions on the patient's behalf, in the following descending order of priority:
a) The patient's surrogate chosen by the patient as provided.
b) The patient's agent pursuant to an advance health care directive or a power of attorney for health care.
c) The conservator or guardian.
If an adult patient lacks the capacity to make a health care decision, but does not have one of the above health care decisionmakers, a surrogate may be chosen from any of the following persons:
- The spouse or domestic partner of the patient.
- An adult child of the patient.
- A parent of the patient.
- An adult sibling of the patient.
- An adult grandchild of the patient.
- An adult relative or close personal friend.
SB 1139 (Chaptered 837) Prison Visitation (serious illness)
This bill requires the Department of Corrections and Rehabilitation (CDCR) to make changes in policy related to prisoners who have been hospitalized due to a serious or critical medical condition, including making emergency phone calls available, providing support for a completing medical power of attorney and other forms, informing persons covered by the medical release of information form of the prisoner's health status, and visitation.
AB 1663 (Chaptered 894) Supported Decisionmaking
This bill establishes voluntary supported decisionmaking as a way to help individuals with developmental disabilities and requires the State Council on Developmental Disabilities, subject to an appropriation, to administer a statewide Supported Decisionmaking Technical Assistance Program. The bill also revises how probate conservatorships are investigated, established, and terminated; revises who may serve as conservator for individuals with developmental disabilities; and requires the Judicial Council, subject to an appropriation, to establish a conservatorship alternatives program within each self-help center.
AB 2673 (Chaptered 797) Hospice License Moratorium
The bill specifies that only the person or entity initially issued a hospice agency license may use the license for five years. It revises and expand the department’s application requirements and additionally requires an applicant to provide evidence of an unmet need of hospice services in the geographic region the hospice would serve. It requires a hospice agency to have specified personnel categories and requires the hospice agency to provide certain information for each individual on an initial application. It requires the department to conduct annual surveys of 5% of initial hospice agency licenses approved by accrediting organizations during the previous calendar year. The bill establishes a procedure for a person to request an investigation of an accredited hospice agency by making an oral or written complaint alleging a violation.
This bill requires the department, by January 2024, to adopt emergency regulations to implement the recommendations in a specified report of the California State Auditor. The bill requires the department to maintain the general moratorium on new hospice agency licenses until the department adopts the regulations.
SB 1338 (Chaptered 319) Care Court
This bill establishes the Community Assistance, Recovery, and Empowerment (CARE) Act, which must be implemented by Glenn, Orange, Riverside, San Diego, San Francisco, Stanislaus, and Tuolumne Counties by October 1, 2023, and the remaining counties by December 1, 2024. The CARE Act creates a new pathway to deliver mental health and substance use disorder services to the most severely impaired Californians.
Among other provisions, this bill:
- Defines “Psychiatric advance directive” as a legal document that allows a person with mental illness to protect their autonomy and ability to self-direct care by documenting their preferences for treatment in advance of a mental health crisis.
- Requires the California Department of Aging to administer the CARE Supporter program, which will provide trained supporters to aid in supported decisionmaking with individuals who have behavioral health conditions, and use of psychiatric advance directives, with support and input from peers, family members, disability groups, providers, and other relevant stakeholders.