REPORT/RECOMMENDATION TO THE BOARD OF SUPERVISORS
OF SAN BERNARDINO COUNTY
AND RECORD OF ACTION
April 9, 2024
FROM
GEORGINA YOSHIOKA, Director, Department of Behavioral Health
SUBJECT
Title
Participation Agreement with the California Mental Health Services Authority for the State Hospital Program and Memorandum of Understanding with the California Department of State Hospitals and the California Mental Health Services Authority for the Purchase of State Hospital Beds
End
RECOMMENDATION(S)
Recommendation
1. Approve Participation Agreement with the California Mental Health Services Authority (Agreement No. 4634-SHB-2023-SBR), including nonstandard terms, for the State Hospital Program, in the amount of $112,160, effective July 1, 2023 through June 30, 2025.
2. Approve Memorandum of Understanding with California Department of State Hospitals and the California Mental Health Services Authority, including nonstandard terms, outlining the services, rates, and responsibilities associated with the provision of State Hospital beds provided by the California Department of State Hospitals, effective October 1, 2023 through June 30, 2025.
3. Authorize the Director of the Department of Behavioral Health, as the County Mental Health Director, to sign and submit the Participation Agreement and Memorandum of Understanding, including any subsequent non-substantive amendments, as required by the California Mental Health Services Authority and California Department of State Hospitals, on behalf of the County, subject to review by County Counsel.
4. Direct the Director of the Department of Behavioral Health, as the County Mental Health Director, to transmit the Participation Agreement, the Memorandum of Understanding, and subsequent non-substantive amendments to the Clerk of the Board of Supervisors within 30 days of execution.
(Presenter: Georgina Yoshioka, Director, 252-5142)
Body
COUNTY AND CHIEF EXECUTIVE OFFICER GOALS & OBJECTIVES
Provide for the Safety, Health and Social Service Needs of County Residents.
Pursue County Goals and Objectives by Working with Other Agencies and Stakeholders.
FINANCIAL IMPACT
This item does not impact Discretionary General Funding (Net County Cost). The Memorandum of Understanding (MOU) with the California Department of State Hospitals (DSH) and the California Mental Health Services Authority (CalMHSA) is non-financial in nature. San Bernardino County’s (County) portion of the CalMHSA Joint Powers Authority (JPA) Participation Agreement (Agreement) in the amount of $112,160 is funded by 1991 Realignment. Adequate appropriation and revenue have been included in the Department of Behavioral Health’s (DBH) 2023-24 budget and will be included in the 2024-25 Recommended Budget.
BACKGROUND INFORMATION
DBH is responsible for providing mental health and substance use disorder (SUD) treatment services to county residents who are experiencing severe mental illness and/or SUD. CalMHSA is a JPA comprised of California Mental Health Plans that provide administrative and fiscal services in order for member counties to maximize resources related to coordination for implementation of statewide or multi-county projects, such as statewide Suicide Prevention and Stigma and Discrimination Reduction campaigns. The CalMHSA JPA brings together 50 member counties to act jointly for the development and implementation of behavioral health programs. DBH has been a member of the CalMHSA JPA since November 2008 to jointly develop, and fund mental health services and education programs as determined on a regional, statewide, or other basis.
Approval of the Agreement with CalMHSA will assist with locating alternative facilities for psychiatric bed utilization, and streamline administration and contracting for the State Hospital Bed Program between DSH and DBH. CalMHSA, on behalf of DBH, will function as the main point of contact and the lead in negotiations of a MOU for terms and rates for psychiatric bed utilization at the State hospitals. In addition, CalMHSA will work with DBH to explore and determine feasibility of local infrastructure projects to serve as alternative facilities to State hospitals. CalMHSA charges $1,402 per bed to facilitate the negotiations. In 2022-23, the MOU with DSH allocated 54 State hospital beds to DBH annually. It is anticipated that for 2023-24 and 2024-25, DBH will be allocated 40 beds annually. The reduction in the number of beds is the result of a state initiative to reduce State hospital bed usage.
The Agreement with CalMHSA includes terms that differ from the standard County contract. These non-standard terms include the following:
The County may terminate the Agreement for convenience by providing six months written notice of termination to CalMHSA.
• County Policy 11-05 requires that the County have the right to terminate the contract, for any reason, with a 30-day written notice of termination without any obligation other than to pay amounts for services rendered and expenses reasonably incurred prior to the effective date of termination.
• Potential Impact: The County can only terminate the Agreement by providing notice six months prior to termination of the Agreement.
The County is required to indemnify CalMHSA against any claim, demand, disallowance, suit, or damages arising from County’s acts or omissions in connection with the provision of mental health services.
• The County standard contract does not include any indemnification or defense by the County of a contractor.
• Potential Impact: By agreeing to indemnify CalMHSA, the County could be contractually waiving the protection of sovereign immunity. Claims that may otherwise be barred against the County, time limited, or expense limited could be brought against CalMHSA without such limitations and the County could be responsible to defend and reimburse CalMHSA for costs, expenses, and damages, which could exceed the total Agreement amount.
There is no stated venue in the Agreement.
• County Policy 11-05 requires venue for disputes in Superior Court of California, County of San Bernardino, San Bernardino District.
• Potential Impact: Having no express venue in the Agreement means that venue in any other County within California could be applied to disputes arising under this Agreement, which may result in additional expenses that exceed the amount of the Agreement.
The MOU referenced in Recommendation No. 2 between DBH, DSH, and CalMHSA is a general MOU identifying the agreement, services and responsibilities to be provided for the purchase of State hospital beds in order to provide county residents access to necessary beds across the state. CalMHSA, as a JPA, negotiated a joint agreement with DSH for the purchase of State hospital beds for its member counties and serves as liaison agency for matters of compliance with terms and conditions.
Though the MOU has an effective date of October 1, 2023, the MOU specifies that the number of beds and rates have an effective date of July 1, 2023. This MOU states the number of beds and rates from the previous MOU for the period of July 1, 2022 through December 31, 2022, will continue to apply retroactive to January 1, 2023 through June 30, 2023. The rates in 2023-24 have increased; however, there is no dollar amount associated with this MOU as it solely establishes the state rates.
|
Bed Type |
2022-23 Rate |
2023-24 Rate |
|
Intermediate Care Facility (ICF) |
$728 |
$736 |
|
Acute Psychiatric Hospital (APH) |
$753 |
$760 |
|
Skilled Nursing Facility (SNF) |
$806 |
$814 |
The MOU with DSH and CalMHSA includes terms that differ from the standard County contract. These non-standard terms include the following:
The County may not terminate the MOU for convenience.
• County Policy 11-05 requires that the County have the right to terminate the contract, for any reason, with a 30-day written notice of termination without any obligation other than to pay amounts for services rendered and expenses reasonably incurred prior to the effective date of termination.
• Potential Impact: The County cannot terminate the Agreement and there are no provisions regarding any potential breach of the MOU and, therefore, the County may be obligated to the terms of the MOU without any recourse.
There is a mutual indemnification whereby each party is required to defend, indemnify, and hold the other party harmless from and against any and all liability, loss, expense, attorneys' fees, or claims for injury or damages arising out of the performance of the MOU but only in proportion to and to the extent such liability, loss, expense, attorneys' fees, or claims for injury or damages are caused by or result from the negligent or intentional acts or omissions of the other party.
• The County standard contract does not include any indemnification or defense by the County of a contractor.
• Potential Impact: By agreeing to indemnify CalMHSA, the County could be contractually waiving the protection of sovereign immunity.
There is no stated venue in the Agreement.
• County Policy 11-05 requires venue for disputes in Superior Court of California, County of San Bernardino, San Bernardino District.
• Potential Impact: Having no express venue in the Agreement means that venue in any other County within California could be applied to disputes arising under this Agreement, which may result in additional expenses that exceed the amount of the Agreement.
DBH is requesting retroactive approval of the recommended Agreement with CalMHSA and MOU with DSH and CalMHSA. The Agreement and MOU were received on September 6, 2023, and required on-going negotiations and extensive administrative and fiscal reviews to ensure the fiscal provisions, standard agreement language and requirements could be met. This is the first available Board of Supervisors date after the required DBH program, fiscal, administrative, and legal reviews. Approval of this item will allow CalMHSA to represent DBH in the MOU negotiations and allow DBH to continue providing access to services for State hospital beds.
PROCUREMENT
N/A
REVIEW BY OTHERS
This item has been reviewed by Behavioral Health Contracts (Ellayna Hoatson, Contracts Manager, 388-0858) on January 30, 2024; County Counsel (Dawn Martin, Deputy County Counsel, 387-5455) on February 26, 2024; Risk Management (Victor Tordesillas, Deputy Executive Officer, 386-8623) on March 12, 2024; Finance (Christopher Lange, Administrative Analyst, 386-8393) on March 22, 2024; and County Finance and Administration (Cheryl Adams, Deputy Executive Officer, 388-0238) on March 25, 2024.