BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Elaine K. Alquist, Chair A
2005-2006 Regular Session B
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AB 522 (Plescia)
As Amended June 23, 2005
Hearing date: June 28, 2005
Penal, Welfare and Institutions Codes (URGENCY)
AA:br
REGISTERED SEX OFFENDERS :
MEDI-CAL COVERAGE FOR SPECIFIED CONDITIONS
HISTORY
Source: Health and Human Services Agency; Department of Health
Services
Prior Legislation: None
Support: California Department of Corrections
Opposition:None known
Assembly Floor Vote: N/A
KEY ISSUES
SHOULD THE Department of Health Services ("DHS") BE PROHIBITED from
paying for any prescription drug or other therapy to treat erectile
dysfunction for registered sex offenders, as specified?
SHOULD THE Department of Justice BE AUTHORIZED TO share information
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AB 522 (Plescia)
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with DHS concerning registered sex offenders for this purpose, as
specified?
PURPOSE
The purpose of this bill is to 1) prohibit the Department of
Health Services ("DHS") from paying for any prescription drug or
other therapy to treat erectile dysfunction for registered sex
offenders, as specified; 2) authorize the Department of Justice
to share information with DHS concerning registered sex
offenders for this purpose, as specified; and 3) make unrelated
substantive changes to the law concerning pharmacy services.
Current law generally requires people who have been convicted of
specified sex offenses to register at least annually with the
chief of police of the city in which he or she is residing, or
the sheriff of the county if where he or she is residing is
located in an unincorporated area or city that has no police
department, and, additionally, with the chief of police of a
campus of the University of California, the California State
University, or community college if he or she is residing upon
the campus or in any of its facilities, within five working days
of coming into, or changing his or her residence within, any
city, county, or city and county, or campus in which he or she
temporarily resides, for the rest of his or her life while
residing in California, or while attending school or working in
California, as specified. (Penal Code 290.)
Current law expressly provides that except as specifically
allowed, the statements, photographs, and fingerprints required
by this provision shall not be open to inspection by the public
or by any person other than a regularly employed peace officer
or other law enforcement officer. (Penal Code 290(i).)
Under current law , the Department of Justice ("DOJ") is required
to make information about registered sex offenders available to
the public via an Internet Web site, as specified. (Penal Code
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290.46.)
Current law specifically provides that except as authorized, use
of any information that is disclosed pursuant to these
provisions for purposes relating to any of the following is
prohibited:
Health insurance;
Insurance;
Loans;
Credit;
Employment;
Education, scholarships, or fellowships;
Housing or accommodations; and
Benefits, privileges, or services provided by
any business establishment. (Penal Code
290.469j)(2).)
Current law provides that the Medi-Cal Benefits Program
comprises a department-administered uniform schedule of health
care benefits. (Welfare and Institutions Code ("WIC") 14131;
see 14132.) Current law provides that the "purchase of
prescribed drugs is covered subject to the Medi-Cal List of
Contract Drugs and utilization controls." (WIC 14132(d).)
This bill would provide that, notwithstanding any other law, DHS
"shall not provide or pay for any prescription drug or other
therapy to treat erectile dysfunction for any person who is
required to register pursuant to Section 290 of the Penal Code,
except to the extent required under federal law."
This bill would provide that DHS "may require from the
Department of Justice the information necessary to implement
this section."
This bill would provide that, "notwithstanding any other law,
DOJ would be required to provide, upon written request, the
names and relevant information pertaining to persons who are
required to register pursuant to Section 290 to any state
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governmental entity responsible for authorizing or providing
publicly funded prescription drugs or other therapies to treat
erectile dysfunction of those persons. State governmental
entities shall use information received pursuant to this section
to protect public safety by preventing the use of prescription
drugs or other therapies to treat erectile dysfunction by
convicted sex offenders."
This bill would provide that the use "or disclosure of the
information obtained pursuant to this section is prohibited for
any purpose other than authorized," as specified in this bill.
This bill would authorize DOJ to establish a fee for requests
including all actual and reasonable costs associated with the
service.
This bill additionally would provide that "(n)otwithstanding any
other law, any state governmental entity responsible for
authorizing or providing publicly funded prescription drugs or
other therapies to treat erectile dysfunction may use the sex
offender data base authorized by Section 290.46 (the Megan's Law
Web site) to protect public safety by preventing the use of such
drugs or therapies to convicted sex offenders."
This bill is an urgency measure.
COMMENTS
1. Stated Need for This Bill
The author states:
AB 522 would give state agencies access to the
information necessary to ensure that taxpayers do not
finance erectile dysfunction treatments for known sex
offenders. Federal guidelines prohibit state
Medicaid programs (Medi-Cal in California) from
covering erectile dysfunction treatments for
convicted sex offenders, and California could be
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subject to financial penalties if Medi-Cal does not
comply with these guidelines. Without access to the
registered sex offender database, state agencies will
have no way of knowing if a beneficiary should be
denied access to such treatments.
As Governor Schwarzenegger correctly noted in his
executive order on May 26, 2005, this is also a
public safety issue. We have an obligation to
exercise an abundance of caution and ensure that
state agencies have access to the criminal databases
necessary to prevent the use of these treatments by
known sex offenders.
2. What This Bill Would Do
As explained in detail above, this bill would prohibit DHS from
providing or paying for any prescription drug or therapy to
treat erectile dysfunction for a registered sex offender. The
bill would provide a mechanism for DHS to access, either by
using the Megan's Law Web site or obtaining information from
DOJ, information from DOJ identifying persons who are registered
sex offenders. This bill also would authorize DOJ to establish
a fee for its costs associated with providing this information.
3. Background - Medicaid, Erectile Dysfunction Drugs and
Registered Sex Offenders
Numerous press accounts this Spring reported that registered sex
offenders in at least 14 states got Medicaid-paid prescriptions
for Viagra and other prescription drugs used to treat erectile
dysfunction. In response to these and other reports, on May 23
of this year the Center for Medicaid and State Operations issued
a "guidance to remind states there are a number of options to
prevent the inappropriate use of such drugs and to inform states
that we believe they should restrict the coverage of such drugs
in the case of individuals convicted of a sex offense. . . . We
believe that, . . . the use of these drugs in the case of a sex
offender is not appropriate and Medicaid should not pay for the
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cost of such drugs in such circumstances.
Effective immediately, states should use their
drug use review program and procedures . . . and
work with physicians and pharmacists to prevent
inappropriate Medicaid payment for such drugs in
the case of a sex offender. Failure to perform
such a review and implement appropriate controls
may result in sanctions.<1>
On May 26, 2005, Governor Schwarzenegger announced that he had
issued a directive to all applicable state agencies in
California to immediately stop providing known sex offenders
with taxpayer-funded medications such as Viagra, Levitra or
Cialis, to treat erectile dysfunction ("ED").
It is estimated that 137 registered sex offenders in California
may have been prescribed ED drugs under Medi-Cal in the last
year.
4. Background: ED Treatment
The following information, compiled by the Senate Office of
Research, explains the purpose and effect of Viagra, which is a
commonly-used prescription drug for ED.
From the FDA's Center for Drug Evaluation and
Research :
Viagra is used to treat impotence in men. Viagra
increases the body's ability to achieve and
maintain an erection during sexual stimulation.
How does Viagra work? An erection is the result
of an increase in blood flow into certain internal
areas of the penis. Viagra works by enhancing the
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<1> Letter dated May 23, 2005 from Dennis G. Smith, Director of
the Center for Medicaid and State Operations, Department of
Health & Human Services, addressed to "Dear State Medicaid
Director."
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effects of one of the chemicals the body normally
releases into the penis during sexual arousal.
This allows an increase of blood flow into the
penis.
Patient Summary Information about Viagra from
Pfizer :
VIAGRA is a pill used to treat erectile
dysfunction (impotence) in men. It can help many
men who have erectile dysfunction get and keep an
erection when they become sexually excited
(stimulated). You will not get an erection just
by taking this medicine. VIAGRA helps a man with
erectile dysfunction get an erection only when he
is sexually excited. VIAGRA does not cure
erectile dysfunction. It is a treatment for
erectile dysfunction. VIAGRA is not a hormone or
an aphrodisiac.
From Aetna InteliHealth :
In most men, erectile dysfunction is caused by
inadequate flow of blood into the penis. PDE5
drugs (Viagra) work by helping the blood vessels
relax, which increases blood flow. They do not
cause an erection without sexual stimulation, and
the penis will return to its normal size and
flaccid state after ejaculation. They also have
no effect on sexual desire (libido) and do not
change sensation in the penis. PDE5 drugs are not
habit forming or addictive. They do not increase
sexual desire or sexual enjoyment, other than by
helping a man to achieve and maintain an erection.
5. Background: Sex Offending; ED Drugs and Sex Offense
Behavior
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Medical treatment for ED, many assert, helps sex offenders
commit sex offenses. "The federal government is inadvertently
facilitating the sexual assault of children," Laura Ahearn,
executive director of Parents for Megan's Law, told the
Associated Press earlier this year.<2> In his May 26 press
release, Governor Schwarzenegger stated:
Our first responsibility is to keep our citizens
safe, and providing these drugs to known sex
offenders is a policy that only threatens more
innocent people.
Others, however, contend that drugs treating ED are unrelated to
sexual offending:
Viagra is often misunderstood to be an aphrodisiac
- actually it does nothing to enhance sexual
motivation, said Dr. Fred Berlin, a psychiatrist
at Johns Hopkins University and an expert on the
treatment of sex offenders. . . .
Berlin said he's never heard of a sex offender
using Viagra to reoffend.<3>
According to a 2004 law review article on sex offender
management written by authors from the Center for Effective
Public Policy and the Center for Sex Offender Management, the
generally accepted treatment approach for sex offenders
addresses a broad range of factors, none of which necessarily
appear to center on physical performance:
While historical efforts to treat sex offenders
were widely varied, sex offender treatment has been
refined significantly over the past few decades,
and has a generally accepted approach. At present,
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<2> USA Today, May 23, 2005.
<3> Associated Press, June 22, 2005 (State Helped Pay for
Viagra for 137 Sex Offenders.)
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most sex offender treatment programs throughout the
country employ cognitive-behavioral methods that
include relapse prevention components.
Contemporary etiological theories suggest that sex
offending behaviors are the result of a complex
interaction of sociocultural, biological, and
psychological processes . As such, sex offender
treatment is designed to be relatively
comprehensive and holistic, with goals that
generally include accepting responsibility for sex
offending and other harmful behaviors; modifying
cognitive distortions that support offending
behaviors; managing negative mood or affect;
developing positive relationship skills; managing
deviant sexual arousal or interest; maintaining
control over unhealthy impulses; enhancing empathy
for victims; understanding the sequence of events
and risk factors associated with offending; and
developing effective coping skills to manage
identified risk factors.<4>
Sexual assault has come to be generally understood as a crime of
power and control. As explained by the federal Office on
Violence Against Women on its Web site:
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<4> Carter, Bumby and Talbot, SYMPOSIUM: Promoting Offender
Accountability and Community Safety through the Comprehensive
Approach to Sex Offender Management (34 Seton Hall L. Rev. 1273
(2004) (citations omitted) (emphasis added).)
The belief that only young, pretty women are
sexually assaulted stems from the myth that sexual
assault is based on sex and physical attraction.
Sexual assault is a crime of power and control and
offenders often choose people whom they perceive
as most vulnerable to attack or over whom they
believe they can assert power.<5>
Similarly, in its Megan's Law Web site, the California Attorney
General's Office includes the following fact about sex
offenders:
While some offenders do seek sexual gratification
from the act, sexual gratification is often not a
primary motivation for a rape offender. Power,
control, and anger are more likely to be the
primary motivators.<6>
Members of the Committee may wish to explore further the causes
of sexual offending, and how the relationship between ED
treatments and sexual offending may impact these causes and
public safety.
6. Constitutional Considerations
"An ex post facto law is a retrospective criminal statute
applying to crimes committed before its enactment, and
substantially injuring the accused, by punishing an act innocent
when done, or increasing the punishment , or taking away a
defense related to an element of the crime or an excuse or
justification for the conduct, or altering the rules of evidence
so that a conviction may be obtained on less or different
testimony than was required when the crime was committed."<7>
In upholding California's sex offender registration laws against
an ex post facto challenge, the California Supreme Court
reasoned:
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<5> http://www.ojp.usdoj.gov/vawo/SexAssaultInfo.htm.
<6> http://www.meganslaw.ca.gov/facts.htm.
<7> 1 Witkin Cal. Crim. Law Intro. Crimes 10.
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The sex offender registration requirement serves
an important and proper remedial purpose, and it
does not appear that the Legislature intended the
registration requirement to constitute punishment.
Nor is the sex offender registration requirement
so punitive in fact that it must be regarded as
punishment, despite the Legislature's contrary
intent. Although registration imposes a
substantial burden on the convicted offender, this
burden is no more onerous than necessary to
achieve the purpose of the statute.<8>
Members may wish to discuss whether the provisions of this
bill, notwithstanding the stated purposes of public safety
contained in its provisions, would be so punitive in fact as to
constitute punishment and violate the ex post facto clauses of
the California (Art. I 9) and U.S. (Art. I 10)
Constitutions.
7. Similar Bill
This bill is similar to AB 240 (Berm?dez), which was amended on
June 20, 2005; that measure appears to reflect an earlier
version of this bill. Both of these bills are before the
Committee on June 28. With respect to limiting ED drugs and
treatment for registered sex offenders, these bills appear to be
identical in intent. The bills differ in the following
respects:
AB 240 is silent on who would pay to identify Medi-Cal
ED claims deriving from registered sex offenders; this
bill would authorize DOJ to establish a fee for their
actual and reasonable costs;
AB 240 would amend the sex offender registration
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<8> People v. Castellanos, 21 Cal. 4th 785 (1999) (citations
omitted).
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statute (Penal Code 290) to authorize DOJ to provide
the identifying information about registrants to other
state entities, as specified; this bill instead enacts
a new section of law to establish this authority;
This bill authorizes limited access to the Megan's Law
Web site by state entities performing functions
necessary to identify registrants on the Medi-Cal ED
drug claim tape; AB 240 does not provide that
authority; and
Additional technical drafting differences exist between
these bills; AB 522 is generally drafted with more
specificity than AB 240.
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