Passed in 2000, Proposition 36 transformed drug sentencing laws.
But it sometimes puts at risk those it seeks to help.
By Laura Mecoy -- Bee Los Angeles Bureau
Story appeared on Page A1 of The Bee
LOS ANGELES - Devin Eshelman built makeshift shrines, slept in a closet and displayed other bizarre behavior during his 16 days in a residential drug treatment center.
Yet the staff decided to move this troubled young man, with a history of mental illness and marijuana use, to a less restrictive program at a sober-living house.
There, after twice warning the staff he had thoughts about flying off the balcony, Eshelman did just that: He leapt from the second story and suffered such severe injuries that he's now paralyzed from the waist down.
"This guy definitely fell through the cracks," said Eshelman's lawyer, John Janofsky. "This kid should have never been there in the first place."
Nearly five years after voters made sweeping changes in California's drug sentencing laws to emphasize treatment over jail, The Bee found that the system can fail to protect those it's intended to help.
A Bee review of some 5,000 pages of state reports and court records since voters approved Proposition 36 found more than 40 instances in which patients died, suffered injuries, overdosed on drugs or were otherwise at risk in poorly regulated programs or with unlicensed, unethical or careless drug counselors.
One recovering addict died after a counselor refused to provide cardiopulmonary resuscitation because she said she was "too freaked out" to help the unconscious woman.
A man who had just been released from a hospital's mental health unit committed suicide after a counselor refused his request to return to the hospital.
Two counselors at an Oakland program had sex with four of their patients, jeopardizing those addicts' recovery. And an addict at a Costa Mesa program overdosed after counselors failed to confiscate unauthorized medications from her.
These are among the incidents that occurred as Proposition 36, which requires treatment instead of prison for nonviolent drug offenders, brought more than 200,000 new patients and an onslaught of new scrutiny to substance abuse treatment.
Four years after the initiative first went into effect, the state agency in charge imposed its first-ever training and education standards for counselors. But many in the treatment field say the standards fall woefully short.
"The state has left an unregulated profession that treats a life-threatening illness foundering for decades, and the best they can come up with are regulations that require three college classes (for counselors)," said Warren Daniels, president of the California Association of Alcoholism and Drug Abuse Counselors. "Your beautician or barber has to have more training than that to cut your hair."
The Bee, which first reported on shortcomings in California's drug treatment system in 2001, also found the state's regulations for the programs themselves continue to be so lax that there's little way to determine whether programs actually help addicts recover.
The agency overseeing the programs is working on new regulations, but its director said it needs more time to ensure these rules don't harm business.
"It would be ill-advised for any state to adopt something that is so high for anybody to achieve that they can't sustain a business in California," said Kathryn Jett, Department of Alcohol and Drug Programs director.
Lawmakers and former Gov. Gray Davis rebuffed previous attempts to regulate sober-living homes, like the one where Eshelman was, so no state inspectors check on their safety.
The state does have the power to license and inspect residential drug programs that offer treatment, and it issues certifications to outpatient clinics that meet its standards.
Its inspectors check to see that these programs are safe and keeping proper records. But the state never determined what type of counseling or treatment works best for addicts, so it doesn't measure success rates for individual programs.
Jett said the state is starting to collect data to determine what works best but expects it "will take years."
In the meantime, her department investigates complaints about badly run programs and counselor misbehavior. It recently began following up on the most serious complaints to ensure problems are corrected. In most instances, Jett said the drug programs fire anyone who engages in misconduct.
"By and large, in our treatment provider system, that is not the type of behavior they tolerate," Jett said.
She said she expects the new counselor training standards will help eliminate misconduct. But she acknowledged the department instituted the "minimum" educational standards out of fear higher ones would cause a shortage of workers in an industry that's already seen sweeping change.
Since Proposition 36, drug treatment in California has gone from a mostly voluntary system serving addicts who could leave at any time to mandated treatment for those sentenced under the initiative.
The 50,000 offenders sentenced to drug programs each year under Proposition 36 are straining a system that already had long waiting lists. More than 200,000 Californians enter treatment annually, including those who voluntarily seek help, such as Eshelman.
The influx of drug offenders into treatment since Proposition 36 has increased the workload for state investigators examining these programs. Since 2001, the annual number of complaints they investigate has risen from 240 to 363 in fiscal 2005.
While most of the complaints are about issues that don't affect safety, the state staff also investigates deaths and injuries. In several of those cases, the investigators said the counselors ignored suicidal warning signs or failed to provide lifesaving assistance or proper supervision.
In one case, the lack of supervision jeopardized the public.
Three teens in Eureka were stabbed and another injured in a fight July 22, 2004, with four inmates who escaped a drug furlough program. The counselor who was supposed to watch the prisoners was at a neighboring facility when the inmates slipped out.
State investigators cited the Humboldt Recovery Center for having one counselor supervising two treatment programs. Joel McDonough, the center's director, said it's since surrendered its furlough program's license.
In other cases, those in treatment suffered.
In 2003, a counselor at Cedar House Rehabilitation Center in Bloomington, near Riverside, started and then stopped cardiopulmonary resuscitation on an unconscious addict to call 911 - even though two residents standing nearby could have placed the call.
The counselor also called two other staffers at home before resuming CPR. The addict, who was supposed to be supervised because he was undergoing withdrawal from drugs and alcohol, was alone when he used shoestrings to hang himself from a shower head, according to the incident report.
Rodger Talbott, Cedar House's CEO, said the man died a few days later in the hospital.
He said the counselor was trained in CPR but exercised "poor judgment" in a moment of crisis. He said the counselor and other staff subsequently received more CPR training.
At another treatment center, an investigator found counselors ignored a resident's bizarre behavior and comments for four days in 2002. On the fourth day, she took an overdose of Tylenol but survived. The facility responded with additional staff training.
The Bee couldn't contact the program for comment because the department refused to provide the names of the program, staff or those undergoing treatment.
The department's chief counsel, Morgan L. Staines, said he wanted to prevent The Bee from obtaining the coroners' reports or court documents that might identify those undergoing drug treatment because privacy laws protect the identity of those in treatment. The laws are aimed at encouraging addicts to seek help.
Rules governing counselors' relationships with those in treatment also seek to protect addicts from exploitation and other situations that can jeopardize their recovery.
But counselors, many of them recovering addicts themselves, sometimes act unethically.
At Sonoma County's Orenda Center, a state investigator determined a staff member exploited one of the women in treatment by having a sexual relationship with her in 2003.
Another counselor recorded in treatment notes that the woman was "in danger of relapse" because of her relationship and quoted her as saying: "I almost drank over it. ..."
The woman in treatment said she'd tried to end the relationship and was "ashamed" to admit she'd remained in contact with the man.
The male assistant counselor was forced to resign, but the recovering addict continued to struggle with her anger and shame.
"I just feel so sick, broken," she told another counselor a month after the resignation. "How could I ever be OK?"
Gino Giannavola, Sonoma County's Alcohol and Drug Services director, called the case an "aberration."
He also pointed out that therapists and others in more strictly regulated professions are caught in similar misconduct.
But therapists can face sanctions or lose their license to practice. Drug treatment counselors - until recently - faced, at most, the loss of a job. Sometimes, those counselors went on to work elsewhere.
The state's new standards are supposed to guard against unethical and incompetent counselors getting another job.
But there is no guarantee.
The state is relying on outside organizations already in the business of certifying counselors to carry out the program, and that's raising questions about how consistent the enforcement will be.
In addition, the state gave counselors five years to meet the standards, and only 30 percent of a program's staff has to meet them by then.
For other counseling professions, the Department of Consumer Affairs issues the licenses and enforces the standards. Under its rules, for instance, a marriage and family therapist must have a master's or doctoral degree, 3,000 hours of supervised work experience and additional training in substance abuse and other issues.
By comparison, the new standards for drug counselors require just 155 hours of education, 160 hours of on-the-job training, a score of at least 70 on a test and 2,080 hours of work experience.
Bob Tyler, president-elect of one of the certifying organizations, the California Association of Alcoholism and Drug Abuse Counselors, said his association plans to push for state licensure to improve the standards and guard against "fly-by-night" certifying groups.
"The standards are among the lowest in the country," he said. "To come up with regulations that say 155 hours of training is enough ... is just irresponsible."
Many in the treatment industry unsuccessfully pushed for more hours of education, including Angela Stocker, College of San Mateo counselor certificate program director.
She said counselors need more training to deal with mental illness, homelessness and other issues accompanying addiction.
"(State drug officials) are setting clients up to relapse," she said. "They are setting people up to fail."
Jett, whose agency wrote the standards, said counselors can seek more training and be certified by the organizations that require more training.
She said the state's lower standards will prevent worker shortages while assuring the judiciary and law enforcement that California has a "standard of care" and "will take action" if "there is anything inappropriate."
Since the new standards went into effect, however, the department certified Common Goals, a Nevada City outpatient program with an executive director who admitted past ethical failings.
David Sam Albertson admitted to the California Association of Alcoholism and Drug Abuse Counselors, a credentialing organization, that he had a sexual relationship with a former client still undergoing drug treatment.
He said he wasn't aware a relationship with a former client was considered unethical at the time. The credentialing association ordered him to undergo ethics training. Albertson said he did that, and knows the relationship was unethical.
But he said he didn't seek a credential from that credentialing association because he felt its leaders were biased against him. He went to another organization to obtain it. Joe Festersen, Common Goals administrator, said the state never asked him about his staff's past ethical violations before certifying the program.
The state drug agency declined to comment on the case but said it can require certifying organizations to decertify unethical counselors.
Even with the new guidelines for counselors, the state agency hasn't taken action against a counselor the Department of Social Services banned for life.
The department banned Simon Andrew Casey from its programs because he had prior convictions for fraud and theft, practiced psychology without a license and oversaw a program where a counselor molested two teen girls.
The department began documenting the problems in 2003, and a spokeswoman said it repeatedly alerted the state drug agency. The drug programs agency took no action until June 2005, when its investigation of the MedPro program led to the surrender of its residential license.
But Casey, who didn't return phone calls seeking comment, continues to provide counseling at a San Clemente outpatient program operated by MedPro. He has obtained a probationary license as a psychological assistant from the Board of Psychology.
The Department of Alcohol and Drug Programs said the reason a separate state department - Social Services - banned Casey is because Social Services has stricter standards for people under its supervision, who usually require a higher level of care. In this case, the clients who attracted Social Services' attention were teens.
The drug programs agency also pointed out that adult substance abusers don't need the same level of care as teens.
But the case of Eshelman, the young man who leaped off a balcony, underscores how much care is sometimes needed and how limited the state's ability is to safeguard those in treatment.
Eshelman first sought treatment in 2003 at the Discovery Program, a licensed facility under the state's supervision.
But he left state supervision when the Discovery Program transferred him to its nearby sober-living facility, Liberty House.
The state has no jurisdiction over these homes so long as they offer no formal counseling or supervision - just room and board in a drug-free environment.
Liberty House assigned another resident to keep an eye on Eshelman. But Eshelman was alone on Liberty House's balcony when he jumped on April 5, 2003, and there is nothing the state can do about it.
Eshelman turned to the courts seeking a remedy but wound up settling out of court after the Discovery Program and Liberty House raised questions about their responsibility for keeping him safe.
Liberty House agreed to pay $160,000 to settle the case, and the Discovery Program agreed to pay $470,000.
Eshelman is still pursuing a lawsuit against his psychiatrist.
Today, he said he remembers little about the days leading up to his suicide attempt - except for how lonely and depressed he was.
"It got so bad that I just got to the point where I said, 'Forget about it. I don't want this anymore,'" he recalled.
Eshelman doesn't remember jumping. He just remembers waking up in the hospital and discovering he couldn't move his legs.
"My whole life was different," he said. "I was dealing with a lot of physical pain."
At age 23, Eshelman has turned his life around. He's found the right medication for his mental illness. He's studying business at community college and plays on a wheelchair basketball team.
He lives with two other families in a National City home and tries to help others through the National Alliance for the Mentally Ill of San Diego.
For Eshelman, the turning point came about two months after his suicide attempt, when he was in a rehabilitation center learning how to live without the use of his legs.
"I had a spiritual awakening," he said. "My whole life flashed before my eyes, and I felt a presence there, God. ... Since then, I am not living for myself."
While his spirit soars, Eshelman's body remains in a wheelchair. He has no feeling in his legs, though they occasionally twitch uncontrollably.
He said he's still in a "lot of pain" and just recently recovered from a pressure sore, a potentially serious ailment that is relatively common with paralysis.
Eshelman said he's accepted his injuries as part of God's plan. But with each painful moment, the young man who tried to fly is reminded of his ill-fated venture into California's drug treatment system.
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Proposition 36's major provisions
Proposition 36, approved by voters in 2000, dramatically changed drug sentencing in the state. Here are its major provisions:
Changed sentencing laws beginning July 1, 2001, to require adult offenders convicted of possession or use of illegal drugs to be sentenced to probation and drug treatment instead of prison, jail or probation without treatment. Excludes some offenders, including those who refuse treatment and those found by courts to be "unamenable" to treatment.
Changed parole violation laws beginning July 1, 2001, to require that parole violators who commit nonviolent drug possession offenses or who violate drugrelated conditions of parole complete drug treatment in the community, rather than being returned to state prison.
Required up to one year of drug treatment for eligible offenders and up to six months of additional follow-up care.
Once in treatment, offenders are allowed up to three probation violations involving drug possession or use before the courts can incarcerate them, unless the defendants are found to be unamenable to treatment or a danger to others.
Permitted courts (for probationers) and Board of Prison Terms (for parole violators) to require offenders to participate in training, counseling, literacy programs or community service.
Required that treatment programs receiving Proposition 36 funding be licensed or certified by the state Department of Alcohol and Drug Programs. Required offenders to pay their treatment, if they are reasonably able to do so.
Appropriated $120 million year to operate the program first five years. Left future funding to the governor and Legislature.
Required an independent, university-based analysis of effectiveness of the measure.
Authorized dismissal of charges when treatment is completed but requires disclosure of conviction to law enforcement and for political candidates, peace officers, licensure, lottery contractors and jury services.
Prohibited using conviction deny employment, benefits license.
Source: Legislative Analyst's Office
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Photo gallery: Proposition 36 -- 5 years later
GOTO http://www.sacbee.com/content/politics/projects/prop36/story/14222856p-15048142c.html
Devin Eshelman, with a history of mental illness, was paralyzed from the waist down after leaping from the second floor of a sober-living house. He had been moved to the house, over which the state had no control, from a state-regulated residential drug treatment center. Eshelman has since turned his life around.
Sacramento Bee/Autumn Cruz
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MONDAY: Proposition 36 may face a major overhaul because it's graduating only a fourth of those ordered into treatment.
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About the writer:
The Bee's Laura Mecoy can be reached at (310) 546-5860 or lmecoy@sacbee.com .
http://www.sacbee.com/content/politics/projects/prop36/story/14222856p-15048142c.html
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http://humane-rights-agenda.blogspot.com/2006/02/breaking-cycle-or-broken-system.html
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