BREAKING A CYCLE, OR BROKEN SYSTEM?

Passed In 2000, Proposition 36 Transformed Drug Sentencing Laws. But
It Sometimes Puts At Risk Those It Seeks To Help.

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.

[sidebar]

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