California lawmakers approved CARE Court. What comes next?

In the next two years, California’s 58 counties will be tasked with setting up new court systems to address the needs of people with severe mental illness who often languish on the streets.

Gov. Gavin Newsom’s Community Assistance, Recovery, and Empowerment (CARE) Court proposal swept through the state Legislature with resounding approval from Democrats and Republicans in both houses on Aug. 31 — only two of the state’s 120 legislators voted against it — and was signed into law by the governor on Sept. 14. The proposal was authored by Democratic Sens. Tom Umberg of Garden Grove and Susan Talamantes Eggman of Stockton through Senate Bill 1338.

“This is one of the things I think we’ll look back on with tremendous pride, when we’re done,” Newsom said during the bill signing ceremony in San Jose, where he first announced the proposal in March. “We get a moment in time, but this might live on, if we make it real. And that’s the hard work of the next year.”

Originally, Newsom’s proposal — which would compel people with untreated schizophrenia and other severe mental illness into housing and treatment — had a start date of July 1, 2022. But it faced resistance from county officials who said they were unprepared to create and maintain an entire legal apparatus, much less provide the necessary services. After months of successful lobbying to slow down the timeline devised by the governor and secure more money for planning, the California State Association of Counties now says it stands ready to help implement the far-reaching proposal. 

Under the new timeline, seven counties will have to establish new courts by Oct. 1, 2023, followed by the remaining 51 counties in December 2024. The pilot counties are San Francisco, San Diego, Orange, Riverside, Stanislaus, Tuolumne and Glenn.

The system will theoretically work like this: Family, close friends, first responders and behavioral health workers will be able to submit a petition to the court, signed under penalty of perjury, on behalf of a person with untreated schizophrenia spectrum or other psychotic disorders that shows why they qualify for CARE Court.  In order to qualify, the person must be either unlikely to survive safely without supervision or be a threat to themselves or others without support. The petition must include either an affidavit from a licensed health care professional who examined them or tried to — or proof the person was recently detained under intensive treatment.

The court would then order a clinical evaluation of the person — and review the evaluation to see if the person qualifies for CARE Court services. If they do, they’ll get legal counsel and a “supporter” — an advocate to walk them through the process, as well as a “Care Plan” that can include recommended treatment, medication and housing. Medication can be court-ordered, but not forcibly administered. During 12 months, a participant will have to attend hearings to make sure they’re adhering to the plan — and counties are providing the court-ordered services.

Following that year, a person could receive another year of treatment or a graduation plan, which would not be enforceable by the court. If a person received the court-mandated services but failed to complete their treatment, they could be considered by the court for conservatorship, though refusing medication alone wouldn’t be grounds for failure. The idea is to make it easier for people who need help, but may not be seeking it, to get it before they lose legal autonomy or end up in jail.

“CARE Court is a paradigm shift: providing housing and services in the community, where people can heal – and not behind locked walls of institutions and prisons,” Newsom said in a statement on Aug. 30.

This is the governor’s latest and boldest strategy to address homelessness, which consistently ranks at the top of the list of voter concerns in California — albeit participants don’t have to be unhoused to qualify. The governor has previously pledged to deal with encampments and dedicated unprecedented budget funding to the issue. But his administration concedes this will only serve a small sliver of the 161,000 Californians who were unhoused in 2020 — an estimated 7,000 to 12,000 people a year.

Implementing CARE Courts

Counties now face a series of practical questions critical to turning the fuzzy concept into a reality: How will unhoused people get to court? What happens if someone doesn’t show up? Which courts will house CARE Court? Which judges will preside? Who will conduct the medical evaluations?

There’s about $88 million in this year’s budget to help figure it out. The counties will get $57 million for startup costs, with $26 million earmarked for the first seven counties. Farrah McDaid Ting, public affairs director for the California State Association of Counties, said that money would go toward everything from cell phones and transportation to setting up an information sharing system that tracks data on counties’ progress. A working group for those first seven courts hasn’t yet been pulled together, she said.

The state Department of Health Care Services, the Health and Human Services Agency and the Judicial Branch will get another $31 million to also help set up and coordinate the court system and train staff.

But many of the big questions that swarmed the proposal from the start still linger — such as whether the necessary housing, mental health services or workforce would be available, or whether forcing people to receive treatment is an effective form of help. 

The administration’s response to many of these concerns is that there’s unprecedented funding available through the last two budgets, including $1.4 billion to support the behavioral health workforce and $14 billion for housing and clinical residential placements, including $1.5 billion in bridge housing for which CARE Court participants would be prioritized.

The staggered start should allow the state’s counties to answer some current unknowns, including how many petitions come in and if housing or services are available for them, said Michelle Cabrera, executive director of the County Behavioral Health Directors Association. But with so many unanswered questions, she said, “even estimating how much staff you’ll need is a shot in the dark.”

Cabrera anticipates the next few months will be devoted to coming up with a framework for how the court will look in those seven counties, including figuring out financing and training and drawing up forms.

“Even estimating how much staff you’ll need is a shot in the dark.”

Michelle Cabrera, executive director, County Behavioral Health Directors Association

Orange County officials don’t expect their new court to represent a dramatic departure from the status quo — they already operate a drug court and a mental health court — which is partly why they volunteered to go first.

“I think the bulk of the people who are going to be referred are not going to have schizophrenia,” said Veronica Kelley, chief of Mental Health and Recovery Services at the Orange County Health Care Agency. “We have many people who are clinically stable, meaning they’re not going to hurt themselves or others. They can function, but they still might shout at their voices. They still are experiencing symptoms. So if they are involved in treatment, they’re clinically stabilized, they don’t qualify for this.”

Luke Bergmann, director of behavioral health in San Diego County — another of the first seven counties — says he is especially concerned about the workforce. He worries about what CARE Court will mean for long-term care, which is “already under a lot of stress.” He anticipates a substantial uptick in demand for such facilities, including board-and-care homes, where serious shortages already exist.

In addition, he says, it is not yet clear who will pay for a lot of the ongoing operational costs of CARE Court. “We don’t currently have a good model for how that kind of work should be reimbursed,” he said, especially for people insured by Medi-Cal.

The state’s Health and Human Services department told CalMatters most CARE Court participants will be either insured by or eligible for Medi-Cal. Those with commercial insurance would be required to reimburse the county for eligible behavioral health care costs. They pointed to nearly $10 billion counties already receive annually for behavioral health care.

Civil rights concerns

Still, advocates worry the court system will backfire.

Eve Garrow, homelessness policy analyst and advocate at the ACLU of Southern California, which opposes the bill, says people who need help the most may avoid the mental health system — or even avoid family members who can file petitions — “because they fear being hauled into court.” 

Garrow also fears the number of people funneled into conservatorships — which restrict far more aspects of a person’s life — will climb. And she believes Black people will be disproportionately impacted because they are more likely to be over-policed, experience homelessness and be misdiagnosed with psychotic disorders.

“The last thing I want to see is a system where, in order to get timely access to the kinds of resources that you need to survive, you have to give up all of your rights and be subjected to a court order,” Garrow said.

“We’re outraged. We’re horrified. We’re ready to file suit.”

Lili Graham, litigation counsel, Disability Rights California

In fact, civil rights groups argue the program would “unravel decades of progress for people with disabilities to have the same civil rights of everyone else,” said Lili Graham, litigation counsel at Disability Rights California. Her group says it plans to sue once the law goes into effect. 

“We’re outraged,” Graham said. “We’re horrified. We’re ready to file suit.” 

But vehement opposition from similar groups across the country and dozens of other civil rights groups and homelessness advocates — who are now urging Newsom to veto his own bill — was not enough to stop it from flying through both houses.

As legislator after legislator took to the microphone on the penultimate day of the legislative session, they spoke to a choice between an imperfect solution and continued inaction.

“I don’t think this is a great bill, but it seems to be the best idea that we have, at this point, to try to improve a God awful situation,” said Assemblymember Al Muratsuchi, a Democrat from Torrance.

“To walk away and say we can’t do anything, to basically say this isn’t good enough, is to in a perverse kind of way say, ‘We really don’t care,’” said Assemblymember Jim Patterson, a Republican from Fresno. Patterson acknowledged casting a vote would not be enough, either.

“This is going to take walking beside these folks, not just today, when we push the button, but next week, next year, perhaps another decade or so.”