BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 1399|
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UNFINISHED BUSINESS
Bill No: SB 1399
Author: Leno (D), et al
Amended: 8/20/10
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-2, 4/20/10
AYES: Leno, Cedillo, Hancock, Steinberg, Wright
NOES: Cogdill, Huff
SENATE APPROPRIATIONS COMMITTEE : 7-1, 5/17/10
AYES: Kehoe, Cox, Alquist, Corbett, Leno, Wolk, Yee
NOES: Denham
NO VOTE RECORDED: Price, Walters, Wyland
SENATE FLOOR : 21-13, 6/2/10
AYES: Alquist, Cedillo, Corbett, DeSaulnier, Ducheny,
Florez, Hancock, Kehoe, Leno, Liu, Lowenthal, Negrete
McLeod, Padilla, Pavley, Price, Romero, Simitian,
Steinberg, Wolk, Wright, Yee
NOES: Aanestad, Ashburn, Cogdill, Correa, Cox, Denham,
Dutton, Harman, Hollingsworth, Huff, Runner, Strickland,
Wyland
NO VOTE RECORDED: Calderon, Oropeza, Walters, Wiggins,
Vacancy, Vacancy
ASSEMBLY FLOOR : 44-32, 8/30/10 - See last page for vote
SUBJECT : Medical parole
SOURCE : Federal Prison Health Care Receiver
CONTINUED
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DIGEST : This bill provides that, except as specified,
any prisoner who the head physician for the institution
where the prisoner is located determines, as provided, is
permanently medically incapacitated with a medical
condition that renders the prisoner permanently unable to
perform activities of basic daily living, and results in
the prisoner requiring 24-hour care, and that
incapacitation did not exist at the time of sentencing,
shall be granted medical parole, if the Board of Parole
Hearings determines that the conditions under which the
prisoner would be released would not reasonably pose a
threat to public safety. Those provisions would not apply
to any prisoner sentenced to death or life in prison
without possibility of parole or to any inmate who is
serving a sentence for which parole pursuant to this bill
is prohibited by any initiative statute. The bill provides
that these provisions shall not be construed to alter or
diminish the rights conferred under the Victim's Bill of
Rights Act of 2008: Marsy's Law. This bill requires the
Department of Corrections and Rehabilitation to, among
other things, seek to enter into memoranda of understanding
with the Social Security Administration and the State
Department of Health Care Services, in addition to certain
other entities, to facilitate prerelease agreements to help
inmates initiate benefits claims, as specified. The bill
requires the department to reimburse county public
hospitals on a quarterly basis for the nonfederal share of
Medi-Cal costs incurred by the county for individuals who
have been granted medical parole and the county costs for
providing health care services that are not allowable under
Medi-Cal but are required by the state to be furnished to
eligible persons who have been granted medical parole,
including public guardianship health care services. The
bill requires the department to provide, or provide
reimbursement for, services associated with public
guardianship of medical parolees, as specified.
Assembly Amendments : (1) specify that hospitals shall seek
reimbursement from Medi-Cal first before seeking
reimbursement from CDCR or other sources, (2) provide that
upon providing an acceptable invoice, CDCR shall reimburse
county public hospitals on a quarterly basis for all of the
following: a) The nonfederal share of Medi-Cal costs
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incurred by the county for individuals who have been
granted medical parole, an amount equal to the county costs
for providing health care services that are not allowable
under Medi-Cal but are required by the state to be
furnished to eligible individuals who have been granted
medical parole, including public guardianship health care
services, c) CDCR shall provide for allowable costs that
cannot be claimed as Medi-Cal expenditures under targeted
case management and the nonfederal share of services
associated with public guardianship that can be claimed as
Medi-Cal expenditures, d) CDCR may provide supplemental
reimbursements to providers amounting to a total
reimbursement that is allowable pursuant to Section 5023.5
of the Penal Code. These supplemental reimbursements may
only be paid to the extent they comply with federal and
state law regulations. The Director of Health Care
Services may work with CDCR to modify these supplemental
reimbursements to the extent necessary to comply with
federal and state law regulations, (3) specify that when
CDCR submits retroactive claims to Medi-Cal for
reimbursement, the claims don't have to be specifically for
public hospitals, and CDCR shall work with the Director of
Health Care Services to ensure that any process established
regarding the submission of retroactive claims shall be in
compliance with state and federal law and regulations, and
(4) added co-authors.
ANALYSIS : Existing law provides that if the Secretary of
the Department of Corrections and Rehabilitation (CDCR) or
the Board of Parole Hearings (BPH) or both determine that a
prisoner is either:
1.Terminally ill with an incurable condition caused by an
illness or disease that would produce death within six
months, as determined by a physician employed by CDCR; or
2.The prisoner is permanently medically incapacitated with
a medical condition that renders him or her permanently
unable to perform activities of basic daily living, and
results in the prisoner requiring 24-hour total care,
including, but not limited to, coma, persistent
vegetative state, brain death, ventilator-dependency,
loss of control of muscular or neurological function, and
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that incapacitation did not exist at the time of the
original sentencing;
3.And that the conditions under which the prisoner would be
released or receive treatment do not pose a threat to
public safety,
The secretary or BPH may recommend to the court that the
prisoner's sentence be recalled and that the court shall
have the discretion to resentence or recall if the court
finds that the facts described above exist. (Penal Code
Section 1170(e)(1) and (e)(2).)
Existing law provides that BPH shall make findings, as
specified, before making a recommendation for resentencing
or recall to the court. This subdivision does not apply to
a prisoner sentenced to death or a term of life without the
possibility of parole. (Penal Code Section (e)(2).
Existing law provides that within 10 days of receipt of a
positive recommendation by the secretary or BPH, the court
shall hold a hearing to consider whether the prisoner's
sentence should be recalled. (Penal Code Section (e)(3).)
Existing law provides that any physician employed by CDCR
who determines that a prisoner has six months or less to
live shall notify the chief medical officer of the
prognosis. If the chief medical officer concurs with the
prognosis, he or she shall notify the warden. Within 48
hours of receiving notification, the warden or the warden's
representative shall notify the prisoner of the recall and
resentencing procedures, and shall arrange for the prisoner
to designate a family member or other outside agent to be
notified as to the prisoner's medical condition and
prognosis, and as to the recall and resentencing
procedures. If the inmate is deemed mentally unfit, the
warden or the warden's representative shall contact the
inmate's emergency contact and provide the information
described above, as specified. (Penal Code Section
(e)(4).)
Existing law provides that the warden or the warden's
representative shall provide the prisoner and his or her
family member, agent, or emergency contact, updated
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information throughout the recall and resentencing process
with regard to the prisoner's medical condition and the
status of the prisoner's recall and resentencing
proceedings. (Penal Code Section (e)(5).)
Existing law provides that the prisoner or his or her
family member or designee may independently request
consideration for recall and resentencing by contacting the
chief medical officer at the prison or the secretary. Upon
receipt of the request, the chief medical officer and the
warden or the warden's representative shall follow the
procedures described above. If the secretary determines
that the prisoner satisfies the criteria for sentencing
recall described above, the secretary or BPH may recommend
to the court that the prisoner's sentence be recalled. The
secretary shall submit a recommendation for release within
30 days in the case of inmates sentenced to determinate
terms and, in the case of inmates sentenced to
indeterminate terms, the secretary shall make a
recommendation to BPH with respect to the inmates who have
applied under this bill. BPH shall consider this
information and make an independent judgment of eligibility
and make findings related thereto before rejecting the
request or making a recommendation to the court. This
action shall be taken at the next lawfully noticed board
meeting. (Penal Code Section (e)(6).)
Existing law provides that any recommendation for recall
submitted to the court by the secretary or BPH shall
include one or more medical evaluations, a postrelease
plan, and findings pursuant to paragraph (2). (Penal Code
Section (e)(7).)
Existing law provides that, if possible, the matter shall
be heard before the same judge of the court who sentenced
the prisoner.
Existing law provides that if the court grants the recall
and resentencing application, the prisoner shall be
released by CDCR within 48 hours of receipt of the court's
order, unless a longer time period is agreed to by the
inmate. At the time of release, the warden or the warden's
representative shall ensure that the prisoner has each of
the following in his or her possession: a discharge medical
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summary, full medical records, state identification, parole
medications, and all property belonging to the prisoner.
After discharge, any additional records shall be sent to
the prisoner's forwarding address. (Penal Code Section
(e)(9).)
Existing law provides that the secretary shall issue a
directive to medical and correctional staff employed by
CDCR that details the guidelines and procedures for
initiating a recall and resentencing procedure. The
directive shall clearly state that any prisoner who is
given a prognosis of six months or less to live is eligible
for recall and resentencing consideration, and that recall
and resentencing procedures shall be initiated upon that
prognosis. (Penal Code Section (e)(10).)
This bill establishes a medical parole program, as
specified. Specifically this bill:
1. Provides that, except as to those prisoners specified,
any prisoner sentenced to state prison with a
determinate term who the head physician at the
institution where the prisoner is located determines is
permanently medically incapacitated with a medial
condition that renders the prisoner permanently unable
to perform activities of daily living, results in
24-hour care, and that incapacitation did not exist at
the time of sentencing shall be granted medical parole
if BPH determines that the conditions under which the
prisoner would be released would not reasonably pose a
threat to public safety.
2. Specifies that medical parole shall not apply to any
prisoner sentenced to death or life in prison without
possibility of parole or to any inmate who is serving a
sentence for which parole is prohibited by any
initiative statute. Provides that the parole placements
and related provisions shall not be construed to alter
or diminish the rights conferred under the Victim's Bill
of Rights Act of 2008: Marcy's Law.
3. States that when a physician employed by CDCR who is the
primary care provider for an inmate identifies an inmate
that he or she believes meets the medical criteria for
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medical parole, the primary care physician shall
recommend to the head physician of the institution where
the prisoner is located that the prisoner be referred to
the BPH for consideration for medical parole. Within 30
days of receiving that recommendation, if the head
physician concurs in the recommendation of the primary
care physician, he or she shall refer the matter to the
BPH, and if the head physician does not concur in the
recommendation, he or she shall provide the primary care
physician with a written explanation of the reasons for
denying the referral.
4. States that the prisoner or his or her family member or
designee may independently request consideration for
medical parole by contacting the head physician at the
prison or the CDCR Secretary. Within 30 days of
receiving the request, the head physician shall, in
consultation with the prisoner's primary care physician,
make a determination whether the prisoner meets the
criteria for medical parole and, if the head physician
determines that the prisoner satisfies the criteria set
forth, he or she shall refer the matter to the BPH. If
the head physician does not concur in the
recommendation, he or she shall provide the prisoner or
his or her family member or designee with a written
explanation of the reasons for denying the application.
5. Mandates that CDCR complete parole plans for inmates
referred to the BPH for medical parole consideration.
The parole plans shall include, but not be limited to,
the inmate's plan for residency and medical care.
6. Provides that medical parole hearings shall be conducted
by two-person panels consisting of at least one
commissioner. In the event of a tie vote, the matter
shall be referred to the full BPH for a decision.
7. States that upon receiving a recommendation from a head
physician of the institution for a prisoner to be
granted medical parole, the BPH shall make an
independent judgment regarding whether the conditions
under which the inmate would be released pose a
reasonable threat to public safety, and make written
findings related thereto.
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8. States that the BPH or the Division of Adult Parole
Operations shall have the authority to impose any
reasonable conditions on prisoners subject to medical
parole supervision, including, but not limited to, the
requirement that the parolee submit to electronic
monitoring. As a further condition of medical parole,
the parolee may be required to submit to an examination
by a physician for the purpose of diagnosing their
current medical condition. In the event such an
examination takes place, a report of the examination and
diagnosis shall be submitted to the board by the
examining physician. If the BPH , based on a medical
examination, determines that the person's medical
condition has improved to the extent that the person no
longer qualifies for medical parole, the BPH shall
return the person to the custody of CDCR.
9. Provides that prisoners sentenced to determinate terms
who are placed on medical parole supervision prior to
the earliest possible release date and who remain
eligible for medical parole shall remain on medical
parole until the earliest possible release date; at
which time, that parolee shall commence serving a
standard parole term as specified.
10.Provides that prisoners sentenced to indeterminate terms
who are placed on medical parole prior to the minimum
eligible parole date and who remain on medical parole
shall remain on medical parole until the minimum
eligible parole date; at which time, the parolee shall
be eligible for standard parole as specified.
11.Provides that CDCR shall, at the time a prisoner is
placed on medical parole supervision ensure that the
prisoner has applied for any federal entitlement
programs for which the prisoner is eligible, and has in
his or her possession a discharge medical summary, full
medical records, parole medications, and all property
belonging to the prisoner that was under the control of
the CDCR. Any additional records shall be sent to the
prisoner's forwarding address after release to health
care-related parole supervision.
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12.Specifies that CDCR shall complete all of the following
tasks associated with inmates granted medical parole:
A. CDCR shall enter into memoranda of understanding
with the Social Security Administration and the State
Department of Health Care Services in addition to
other entities to facilitate prerelease agreements to
help inmates initiate benefits claims;
B. Requires CDCR to establish contracts with
appropriate medical providers in cases where medical
parolees are ineligible for Medi-Cal; and,
C. CDCR shall reimburse counties for the costs
associated with providing an inmate granted medical
parole with a public guardian.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
1.According to the Assembly Appropriations Committee:
Significant net annual General Fund (GF) savings,
potentially in the low tens of millions of dollars, as a
result of eliminating costly security for incapacitated
inmates and making these inmates eligible for Medi-Cal,
for with the federal government pays 50%.
Based on 32 inmates the federal prison health care
receiver contends are the most likely and immediate
candidates for medical parole, the receiver estimates a
net first year savings of about $30 million. These
include 21 incapacitated inmates housed in nursing
facilities or hospitals outside the prison at a cost of
about $5,800 per day ($2.1 million per year) and 11
incapacitated inmates in a correctional treatment center
(CTC) bed at a cost of about $433 per day ($158,000 per
year). According to the receiver's figures, the annual
cost for these 32 inmates alone is $46 million.
If, for example, the 21 inmates costing the state $44
million were released to medical parole, with no guarding
or transportation costs ($758.000 per inmate, per year),
and annual medical costs were reduced from $1.35 million
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per inmate per year to $100,000, one-half of which would
be covered by the federal government via Medi-Cal, the
annual GF savings would be about $42 million for these 21
inmates alone.
The potential savings for the 11 inmates referenced by
the receiver who are incapacitated in CTCs would be about
$108,000 per inmate per year ($1.2 million total),
assuming no guarding or transportation costs (currently
about $104,000 per inmate, per year) and assuming
medical/housing costs changed from about $54,000 per
inmates, per year, to $100,000 per year, one-half of
which would be paid by the federal government via
Medi-Cal.
These savings could be higher or lower depending on
existing contract medical costs and specific
circumstances.
2.Minor annual GF costs to CDCR, likely averaging in the
range of several thousand of dollars per guardian, to
cover the cost of medical guardians for inmates with no
next of kin or legal guardian to make legal and medical
decisions.
3.Minor annual GF costs, likely in the range of $200,000,
assuming the number of medial parolees is in the range of
35: a) ensure a medial parolee has applied for any
federal entitlement programs and possesses a discharge
medical summary, full medical records, and medication; b)
enter into a memoranda of understanding with the Social
Security Administration and the State Department of
Health Care Services to facilitate prerelease agreements
to help inmates initiate benefits claims; c) complete
parole plans for inmates referred to the Board of Parole
Hearings for medial parole; and, d) hold additional
parole hearings and require electronic monitoring in
certain cases.
SUPPORT : (Verified 8/30/10)
Federal Prison Health Care Receiver (source)
California Catholic Conference
California State Department of Corrections and
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Rehabilitation
California State Sheriffs Association
Chief Probation Officers of California
Crestwood Behavioral Health, Inc.
Life Support Alliance
Service International Employee's Union, Local 1000
OPPOSITION : (Verified 8/30/10)
Crime Victims United of California
Taxpayers for Improving Public Safety
ARGUMENTS IN SUPPORT : According to the author's office:
Does it make sense for the state to pay for two
correctional officers to guard an inmate
24-hours-a-day as the inmate lies comatose or in a
permanent vegetative state in a hospital bed? Does it
make sense for CDCR to become a long-term care
facility for inmates with, for example, end-stage
Alzheimer's disease, whose dementia is so severe they
no longer understand that they are in prison?
California is paying tens of millions of dollars every
year to incarcerate these very high-cost inmates.
These offenders were sent to prison to protect society
and to punish them for their crimes. Because of their
medical condition, however, they are no longer a
threat and the ones being punished are the taxpayers.
California is not alone in facing this problem.
Across the country 36 states have implemented some
form of medical release to relieve them of the
crushing financial burden of keeping inmates in prison
whose medical condition has rendered their
incarceration no longer necessary. In 1997,
California first authorized the Secretary of CDCR or
the Parole Board to recommend to the sentencing judge
that an inmate's sentence be recalled due to terminal
illness. Ten years later that authority was extended
to cover cases of medical incapacitation. However,
last year only two such releases were approved and we
continue to incarcerate inmates who could, by any
rational standard, be released without posing a threat
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to the public.
SB 1399 addresses some of the issues that have been
identified as problematic in the current law. Rather
than requiring a sentence recall it creates an
alternative procedure that permits these inmates to be
placed on parole supervision under conditions
determined by the parole board, and allows the parole
to be revoked if for any reason the parolee's
condition changes and creates a danger to the public.
This medical parole will place public safety paramount
and stop needlessly punishing the taxpayers.
ARGUMENTS IN OPPOSITION : Opponents state "Patients
receiving medical care in any setting, including acute-care
hospitals and post-acute settings such as long-term
acute-care hospitals, skilled-nursing facilities and home
health care must be under the care of a physician. While
incarcerated, the patient is under the care of a department
physician, regardless of where they reside. In order to be
released and to receive treatment at a medical facility, a
community physician who will agree to assume care of the
patient/parolee must be identified. CHA recommends that the
bill be amended to require that a receiving facility and
community physician be identified and agree to accept the
patient before medical parole is granted.
"The bill currently requires that the warden ensure that a
prisoner has applied for any federal entitlement programs
for which they are eligible at the time they are placed on
medical parole supervision. CHA requests that the bill be
amended to require a pre-release application process, and
the establishment of benefits as a condition for release to
medical parole. Such a process would increase the
likelihood of success of the medical parole program."
ASSEMBLY FLOOR :
AYES: Ammiano, Arambula, Bass, Beall, Blumenfield,
Bradford, Brownley, Buchanan, Charles Calderon, Carter,
Chesbro, Coto, Davis, De La Torre, De Leon, Eng, Evans,
Feuer, Fong, Fuentes, Furutani, Hall, Hayashi, Hernandez,
Hill, Huber, Huffman, Jones, Lieu, Bonnie Lowenthal, Ma,
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Mendoza, Monning, Nava, Ruskin, Salas, Saldana, Skinner,
Solorio, Swanson, Torlakson, Torrico, Yamada, John A.
Perez
NOES: Adams, Anderson, Bill Berryhill, Tom Berryhill,
Caballero, Conway, Cook, DeVore, Fletcher, Fuller,
Gaines, Garrick, Gatto, Gilmore, Hagman, Harkey,
Jeffries, Knight, Logue, Miller, Nestande, Niello,
Nielsen, Norby, V. Manuel Perez, Portantino, Silva,
Smyth, Audra Strickland, Torres, Tran, Villines
NO VOTE RECORDED: Block, Galgiani, Vacancy, Vacancy
RJG:nl 8/31/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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