BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Elaine K. Alquist, Chair A
2005-2006 Regular Session B
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AB 240 (Berm?dez)
As Amended June 20, 2005
Hearing date: June 28, 2005
Penal, Welfare & Institutions Codes (URGENCY)
AA:br
SEX OFENDERS :
PAROLE PLACEMENT; MEDI-CAL COVERAGE FOR SPECIFIED CONDITIONS
HISTORY
Source: State Controller
Prior Legislation: SB 1495 (Chavez) - Ch. 51, Stats. 2003
AB 1988 (Strickland) - Ch. 153, Stats. 2000
AB 1646 (Battin) - Ch. 96, Stats. 1998
Support: California Correctional Supervisors Organization;
California Peace Officers' Association; California
Educational Peace Officers Association; El Rancho
Unified School District; Crime Victims United of
California (received prior to most recent amendments)
Opposition:California Attorneys for Criminal Justice; California
Public Defenders Association; American Civil Liberties
Union; one individual (received prior to most recent
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amendments)
Assembly Floor Vote: Ayes 76 - Noes 0 (taken prior to most
recent amendments)
KEY ISSUES
SHOULD PERSONS WHO ARE REGISTERED AS SEX OFFENDERS BE PROHIBITED
FROM RECEIVING TREATMENT FOR ERECTILE DYSFUNCTION PAID FOR BY
MEDI-CAL, AS SPECIFIED?
SHOULD THE CURRENT LIMITATION ON THE PLACEMENT OF CERTAIN SEX
OFFENDER PAROLEES BE EXPANDED FROM SCHOOLS K-8 TO SCHOOLS K-12?
PURPOSE
The purpose of this bill is to 1) expand the current limitation
on the placement of certain sex offender parolees away from
schools to include grades 9-12, as specified; and 2) prohibit
persons who are registered sex offenders from receiving
treatment for erectile dysfunction paid for by Medi-Cal, as
specified.
Medi-Cal Coverage of Erectile Dysfunction Treatment for
Registered Sex Offenders
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 or is
located, is 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
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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).)
This bill would amend this provision to include inspection of
these records for the purposes required by this bill, as
described below.
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, the
Department of Social Services ("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 (as a sex
offender), except to the extent required under federal law."
This bill would provide that DHS "may request from the
Department of Justice the information necessary to implement
this section."
This bill would require the Department of Justice to "upon
request, make available sex offender information to any state
governmental entity responsible for authorizing or providing
publicly funded prescription drugs to treat erectile dysfunction
in those persons."
This bill would require "(s)tate governmental entities (to) use
information received pursuant to this section to protect public
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safety by preventing the use of prescription drugs or other
therapies to treat erectile dysfunction by convicted sex
offenders."
Child Sex Offender Parolee Placement
Current law provides that "(n)otwithstanding any other law, an
inmate who is released on parole for any violation of Section
288<1> or 288.5<2> shall not be placed or reside, for the
duration of his or her period of parole, within one-quarter mile
of any school including any public or private school including
any or all of kindergarten and grades 1 to 8, inclusive."
(Penal Code 3003(g).)
This bill would expand this provision to apply to any or all of
kindergarten and grades 1 to 12, inclusive.
COMMENTS
1. Stated Need for This Bill
The author states:
Existing law does not prevent sex offenders from
getting Viagra paid for by taxpayers. Providing
Viagra to sex offenders using State funds is not
a good expenditure of state money. Currently,
state agencies that authorize or provide publicly
funded prescription drugs or therapies for the
treatment of erectile dysfunction are not able to
utilize data from the Department of Justice's sex
offender registration database. This bill will
allow those agencies access to existing
information and prohibit funding of such
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<1> Penal Code 288 pertains to lewd or lascivious acts on a
child under the age of 14, as specified.
<2> Penal Code 288.5 pertains to continuous sexual abuse of a
child under the age of 14, as specified.
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prescriptions and therapies.
. . . (T)his bill (also) changes Penal Code
Section 3003(g), which changes existing law to
include high schools.
Existing law does not offer the same protection
for adolescents and high school age children as it
does for children under the age of 14. Existing
law provides that an inmate released on parole for
any violation of child molestation or continuous
sexual abuse of a child shall not be placed or
reside, for the duration of parole, within
one-quarter of a mile of any school, grades K-8.
However, Penal Code Section 288(c) states that any
person who commits a lewd or lascivious act with a
child of 14 or 15 years, and who is at least 10
years older than the child, is guilty of a public
offense and punishable by imprisonment.
Therefore, (t)his is not consistent with existing
law, which prohibits these types of sex offenders
for the duration of their parole from living near
schools with grades K-8. Penal Code Section
288(c) clearly defines a sexual offense committed
against high school age adolescents of age 14 or
15.
Furthermore, (a)n individual who is serving on
parole for committing lewd and lascivious acts
with a child of age 14 or 15 would not have the
same restriction preventing them from moving near
a K-12 school, where minors are known to be
located. (emphasis in original)
2. Recent Amendments
This bill was heard and passed by this Committee on June 7,
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2005. On June 20, it was amended in Senate Appropriations
Committee and, as a result of those amendments, was withdrawn
from Committee and re-referred to Rules Committee. This bill
was re-referred to this Committee on June 23, 2005.
As now before the Committee, this bill would do the following:
Prohibit the Department of Health Services ("DHS") to provide
or pay for any prescription drug or other therapy to treat
erectile dysfunction for any person who is required to
register (as a sex offender), except to the extent required
under federal law;
Authorize DHS to request from the Department of Justice the
information necessary to implement this section;
Require the Department of Justice to "upon request, make
available sex offender information to any state governmental
entity responsible for authorizing or providing publicly
funded prescription drugs to treat erectile dysfunction in
those persons;" and
Require state governmental entities 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.
In addition, this bill would expand the current limitation on
the placement of parolees who have been convicted of child
molestation to apply to K-12 schools, instead of K-9 schools.
3. Urgency Concern
With its most recent amendments this bill was amended into an
urgency bill. Urgency enactment may have an unintended
consequence for the provisions of the bill pertaining to the
placement of parolees. As explained above, this bill would
increase the scope of the current limitation on placing certain
sex offender parolees within a quarter-mile radius of schools.
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By increasing the scope of this provision to apply to K-12
schools instead of K-8 schools, this bill will require the
Department of Corrections to review and, it is assumed, relocate
some of its parolees. Assuring these changes occur by January
1, 2006 would require quick planning and action by CDC; assuring
these changes immediately would be impossible. The author
and/or the Committee may wish to consider amending this bill to
delay enactment of this provision to January 1, 2006 or later,
depending upon the requirements of the department to effect this
change.
SHOULD THIS AMENDMENT BE MADE?
4. 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
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
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may result in sanctions.<3>
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.
5. 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
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
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<3> 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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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.
6. Background: Sex Offending; ED Drugs and Sex Offense
Behavior
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
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Associated Press earlier this year.<4> 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.<5>
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, most
sex offender treatment programs throughout the
----------------------
<4> USA Today, May 23, 2005.
<5> Associated Press, June 22, 2005 (State Helped Pay for
Viagra for 137 Sex Offenders)
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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.<6>
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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<6> 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.<7>
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.<8>
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.
7. 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."<9>
In upholding California's sex offender registration laws against
an ex post facto challenge, the California Supreme Court
reasoned:
---------------------------
<7> http://www.ojp.usdoj.gov/vawo/SexAssaultInfo.htm.
<8> http://www.meganslaw.ca.gov/facts.htm.
<9> 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.<10>
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.
8. Who Pays
This bill is silent as to how the costs for identifying
registrants on the Medi-Cal claim tapes will be covered. Thus,
it would seem under this bill DOJ would be required to cover
these costs without reimbursement. The author and/or the
Committee may wish to consider whether this bill should be
amended to require DHS to cover these costs.
SHOULD THIS AMENDMENT BE MADE?
9. Similar Bill
As amended on June 20, the Medi-Cal ED treatment restrictions in
this bill are similar to AB 522 (Plescia), which also is before
the Committee on June 28. In this regard, these bills appear to
be identical in intent. This bill, however, seems to reflect an
---------------------------
<10> People v. Castellanos, 21 Cal. 4th 785 (1999) (citations
omitted).
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earlier version of the Plescia bill. The bills differ in the
following respects:
As noted above, this bill is silent on who would pay to
identify Medi-Cal ED claims deriving from registered sex
offenders; AB 522 would authorize DOJ to establish a fee for
their actual and reasonable costs;
This bill would amend the sex offender registration statute
(Penal Code 290) to authorize DOJ to provide the identifying
information about registrants to other state entities, as
specified; AB 522 instead enacts a new section of law to
establish this authority;
AB 522 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; this bill does
not provide that authority; and
Additional technical drafting differences exist between these
bills; AB 522 is generally drafted with more specificity than
this bill.
The author and/or the Committee may wish to consider conforming
this bill to the approach taken in the most recent version of AB
522.
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