From advancing supported decisionmaking to defining psychiatric advance directives (PADs), several bills approved during the 2022 legislative session included topics of interest to CCCC and its members. Unless otherwise noted, the following bills took effect on January 1, 2023.
Supported Decisionmaking – AB 1663 revises various procedures in the conservatorship process by, among other things, establishing a supported decisionmaking process and a process for entering into a supported decisionmaking agreement for adults with disabilities. This bill defines “supported decisionmaking” as an individualized process of supporting and accommodating an adult with a disability to enable them to make life decisions without impeding the self-determination of the adult. The bill authorizes an adult with a disability to request and have present one or more adults, including supporters, in any meeting or communication. The bill also sets forth the duties of supporters and specifies the elements of a written supported decisionmaking agreement if one is used.
LTC Ombudsman Facility Access – In existing law, if an individual is a resident in a skilled nursing facility (SNF) when a written advance health care directive (AHCD) is executed, the AHCD is not effective unless a patient advocate or ombudsman signs the AHCD as a witness. AB 1855 prohibits a SNF or residential care facility from denying entry to a long-term care ombudsman.
Statutory Advance Directive and Mental Health – AB 2288 clarifies that healthcare decisions made pursuant to existing ACP laws may include mental health conditions. The bill revises the statutory AHCD form to clarify that a person may include instructions relating to mental health conditions.
Health Care Decisionmakers and Surrogates – Existing law authorizes an adult having capacity to give an individual healthcare instruction and to designate a health care decisionmaker, including an agent designated in a power of attorney, to make health care decisions on the person’s behalf. Existing law also authorizes a patient to designate an adult as a surrogate to make health care decisions by personally informing the supervising health care provider. Existing law authorizes a patient to disqualify a person, including a family member, from acting as the patient’s surrogate. AB 2338 authorizes the patient to designate an adult as a surrogate to make health care decisions by also personally informing a designee of the health care facility caring for the patient.
The bill also specifies that if a patient lacks the capacity to make a health care decision, the following legally recognized health care decisionmakers may make health care decisions on the patient’s behalf, in the following descending order of priority:
1) The patient’s verbally designated surrogate,
2) The patient’s agent pursuant to an advance health care directive, and
3) The conservator or guardian of the patient having the authority to make health care decisions.
If a patient lacks the capacity to make a health care decision but does not have a legally recognized health care decisionmaker pursuant to the list above, a health care provider may choose a surrogate to make health care decisions on the patient’s behalf, as appropriate in the given situation. The patient’s surrogate shall be an adult who has demonstrated special care and concern for the patient, is familiar with the patient’s personal values and beliefs to the extent known and is reasonably available and willing to serve.
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.
CARE Court Program and Psychiatric Advance Directives – Contingent upon the State Department of Health Care Services (DHCS) developing an allocation to provide financial assistance to counties, SB 1338 enacts the Community Assistance, Recovery, and Empowerment (CARE) Act and CARE Court. CARE Court connects a person struggling with untreated mental illness – and often also substance use challenges – with a court-ordered Care Plan for up to 24 months.
Among other provisions, this bill defines a “graduation plan” as a voluntary agreement entered into by the parties at the end of the CARE program that includes a strategy to support a successful transition out of court jurisdiction. The plan may include a psychiatric advance directive (PAD). The bill defines a “psychiatric advance directive” as a legal document, executed on a voluntary basis by a person who has the capacity to make medical decisions, 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. The bill requires the state to provide voluntary training as appropriate and to track the number, rates, and trends related to PADs.
SERIOUS ILLNESS CARE
Moratorium on New Hospice Licenses – AB 2673 generally replaces the term “hospice” with the term “hospice agency” and provides that hospice agency licenses are not transferable. The bill specifies that only the person or entity initially issued the license may use the license for 5 years and prohibits the State Department of Public Health (DPH) from approving a change of ownership of a licensed hospice agency for five years from the date of initial licensure. The bill authorizes DPH to make an exception to the 5-year prohibition under extenuating circumstances, as prescribed.
This bill revises and expands DPH’s application requirements and additionally requires an applicant who has not previously qualified for a hospice agency license to demonstrate and provide evidence of an unmet need of hospice services in the geographic region the hospice would serve. The bill requires a hospice agency to have specified personnel categories and to provide certain information for each individual on an initial application for those positions. The bill adds to the reasons for denial, suspension, or revocation of a hospice license to include, among others, improperly certifying a patient as eligible for hospice care, and demonstrating a pattern and practice of violations of state or federal standards during the last 3 years of a hospice agency owned, operated, or managed by the applicant or licensee. 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 of the requirements applicable to hospice agencies.
This bill requires DPH, by January 2024, to adopt emergency regulations to implement the recommendations in a specified report of the California State Auditor. The bill requires DPH to maintain the general moratorium on new hospice agency licenses until the regulations are adopted.
Prisons, Serious Illness, and Visitation – SB 1139, upon appropriation by the Legislature, requires the State Department of Corrections and Rehabilitation (CDCR) to allow persons outside of a CDCR facility to initiate a telephone call with an incarcerated person when the person has been admitted to the hospital for a serious or critical medical condition and to inform CDCR when a family member or designated person has become critically ill or dies while the incarcerated has been hospitalized.
The bill requires CDCR to assist an incarcerated person in completing an approved visitor list, medical release of information form, medical power of attorney form, and next of kin form, and to allow the incarcerated person to update those forms within 24 hours of being hospitalized. It requires CDCR, within 24 hours of an incarcerated person being hospitalized, to inform persons covered by the medical release of information form of the incarcerated person’s health status. It requires CDCR to make emergency in-person contact visits and video calls available whenever an incarcerated person is hospitalized due to a serious or critical medical condition.