BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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4
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AB 1487 (Hill) 7
As Amended June 22, 2009
Hearing date: July 2, 2009
Penal Code
SM:mc
COUNTY JAIL INMATES: COST OF MEDICAL VISITS
HISTORY
Source: California State Sheriffs' Association; Los Angeles
County Sheriff's Department
Prior Legislation: SB 163 (Presley) - Chap. 1070, Stats. of 1994
Support: California State Association of Counties; Regional
Council of Rural Counties; Alameda County Sheriff;
Amador County Sheriff; Association for Los Angeles
Deputy Sheriffs; Butte County Sheriff; Contra Costa
County Sheriff; Del Norte County Sheriff; El Dorado
County Sheriff; Fresno County Sheriff; Glenn County
Sheriff; Humboldt County Sheriff; Mariposa County
Sheriff; Mono County Sheriff; Riverside County
Sheriff's Association; Plumas County Sheriff;
Sacramento County Sheriff's Department; San Bernardino
County Sheriff's Department; Santa Barbara County
Sheriff; Santa Cruz County Sheriff; Shasta County
Sheriff; Tuolumne County Sheriff; Ventura County
Sheriff; Yolo County Sheriff's Department; Kern County
Sheriff
Opposition:
Disability Rights California; Legal Services for Prisoners with
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Children; Friends Committee on Legislation of California; Public
Interest Law Firm (oppose unless amended)
Assembly Floor Vote: Ayes 74 - Noes 0
KEY ISSUE
SHOULD THE AMOUNT COUNTY JAIL INMATES MUST PAY FOR INMATE-INITIATED
MEDICAL VISITS, EXCEPT AS SPECIFIED, BE INCREASED FROM $3 TO $6,
WITH ANY AMOUNT CHARGED OVER $3 TO BE DEPOSITED IN THE INMATE
WELFARE FUND TO BE EXPENDED AS SPECIFIED?
PURPOSE
The purpose of this bill is to increase the fee charged to
county jail inmates for inmate-initiated medical visits from $3
to $6. The first $3 collected would continue to go to the
county or city general fund and any amount over $3 would be
deposited in the inmate welfare fund to be expended as
specified.
Existing law provides that in [county and city jails and
holding] facilities, the facility administrator shall have the
responsibility to ensure provision of emergency and basic health
care services to all inmates. Medical, dental, and mental
health matters involving clinical judgments are the sole
province of the responsible physician, dentist, and psychiatrist
or psychologist respectively; however, security regulations
applicable to facility personnel also apply to health personnel.
(Title 15 Cal. Code of Regs., 1200.)
Existing law provides that a county or a city is authorized to
make claim for and recovery of the costs of necessary hospital,
medical, surgical, dental, or optometric care rendered to any
prisoner confined in a county or city jail, or any juvenile
confined in a detention facility, who would otherwise be
entitled to that care under the Medi-Cal Act and who is eligible
for that care on the first day of confinement or detention, to
the extent that federal financial participation is available, or
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under the provisions of any private program or policy for that
care, and the county, city or the Department of the Youth
Authority shall be liable only for the costs of that care as
cannot be recovered pursuant to this section. (Pen Code
4011.1.)
Existing law provides that, notwithstanding any reimbursement
available through section 4011.1, a sheriff, director of
corrections, or chief of police is authorized to charge a fee in
the amount of $3 for each inmate initiated medical visit of an
inmate confined in a county or city jail. (Penal Code
4011.2(a).)
Existing law states that the fee shall be charged to the
inmate's personal account at the facility. If the inmate has no
money in his or her personal account, there shall be no charge
for the medical visit, the inmate shall not be denied medical
care because of a lack of funds in his or her personal account
at the facility. (Penal Code 4011.2(b) and (c).)
Existing law provides that the medical provider may waive the
fee for any inmate-initiated treatment and shall waive the fee
for any life-threatening or emergency situation, defined as
those health services required for alleviation of severe pain or
for immediate diagnosis and treatment of unforeseen medical
conditions that if not immediately treated could lead to
disability or death. (Penal Code 4011.2(d).)
Existing law requires that all moneys received for inmate
initiated medical visits received by a sheriff, director of
corrections, or chief of police be transferred to the county or
city general fund. (Penal Code 4011.2(f).)
Existing law authorizes a county sheriff to establish, maintain
and operate a store in connection with the county jail and for
this purpose may purchase confectionary, tobacco and tobacco
users' supplies, postage and writing materials, and toilet
articles and supplies and sell these goods, articles, and
supplies for cash to inmates. (Penal Code 4025(a).)
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Existing law provides that the sale prices of the articles
offered for sale at the store shall be fixed by the sheriff.
Any profit shall be deposited in the inmate welfare fund to be
kept in the treasury of the county. (Penal Code 4025(b).)
Existing law provides that money and property deposited in the
inmate welfare fund shall be expended by the sheriff primarily
for the benefit, education, and welfare of the inmates confined
within the county jail. (Penal Code 4025(e).)
Existing law authorizes the sheriff to expend money from the
inmate welfare fund to provide indigent inmates, prior to the
release from the county jail or other adult correctional
facility under the sheriff's jurisdiction, with essential
clothing and transportation expenses. (Penal Code 4025(i).)
This bill would increase the fee charged to county jail inmates
for inmate-initiated medical visits from $3 to $6. The first $3
collected would continue to go to the county or city general
fund and any amount over $3 would be deposited in the inmate
welfare fund, to be spent as specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
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incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
----------------------
<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
---------------------------
<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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1. Need for This Bill
According to the author:
California Penal Code section 4011.2 (a) authorizes a
sheriff, chief or director of corrections, or chief of
police to charge a fee in the amount of three dollars
($3) for each inmate-initiated medical visit of an
inmate confined in a county or city jail.
The $3 fee that is currently charged for
inmate-initiated medical visits has not been increased
since 1994. Costs of providing services have
subsequently increased since this fee was enacted, yet
the fee has not been adjusted to keep in line with
those costs. AB 1487 would help bring the fee in line
with the increased costs, while ensuring that inmates
are not denied care because of an inability to pay.
The bill also requires that any fees collected in
excess of the current $3 go towards the county Inmate
Welfare Fund (IWF). The IWF is designed to provide
services essential to the benefit, welfare, and
educational needs of the inmates confined within the
detention facilities. Any funds that are not needed
for the welfare of the inmates may be expended for the
maintenance of county jail facilities. The sheriff
may also expend money from the inmate welfare fund to
provide indigent inmates, upon release from the county
jail or any other adult detention facility under the
jurisdiction of the sheriff, with essential clothing
and transportation expenses.
AB 1487 is designed to help counties meet the fiscal
demands of rising costs of medical expenses while
ensuring that additional moneys collected are spent to
benefit inmate welfare.
2. Raising the Co-Pay for County Jail Inmates
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This bill would, in essence, raise the "co-pay" for county jail
inmates to see a nurse or doctor from the current $3 to $6. The
author, sponsors, and supporters point out that the $3 fee that
is currently charged for inmate-initiated medical visits has not
been increased since 1994 and that the fee has not been adjusted
to keep in line with increased medical costs. However, because
the bill proposes to deposit any additional fees generated from
the proposed fee increase in the inmate welfare fund, there
would be no direct relief to the sheriff's department or the
county for their increased health care costs. Any benefit to
the sheriffs' budgets would be indirect.
The Los Angeles County Sheriff's Department has informed
Committee staff that legislation regarding nursing practices
enacted in 2000 has made such inmate medical visits more
time-consuming and expensive by requiring an assessment and
documentation to take place for each visit. In many cases,
after seeing the doctor or nurse, the inmate ends up just being
given an over-the-counter remedy. The proposed increase in the
inmates' "co-pay" is intended to encourage inmates to use
over-the-counter remedies that are made available in vending
machines in lieu of the more expensive and time-consuming
medical visit. Whether all inmates have access via vending
machines to over-the-counter remedies at the LA County Jail is
not clear. Whether inmates at other, smaller jails have any
such access to over-the-counter remedies is doubtful.
One issue this proposal raises is that the increased
disincentive to seek medical care might convince some inmates
who may have a more serious disease, perhaps a communicable one,
as well as to those with just a cold, to forego seeking medical
treatment. Under existing law, and under the bill, "[i]f the
inmate has no money in his or her personal account, there shall
be no charge for the medical visit." (Penal Code 4011.2(b).)
And, "[a]n inmate shall not be denied medical care because of a
lack of funds in his or her personal account at the facility."
(Penal Code 4011.2(c).) Nonetheless, many inmates may have
only $10 or $20 dollars on their books. If the inmate starts
experiencing symptoms of illness, he or she may then be faced
with a choice between buying something to eat from the
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commissary or seeing the nurse. It is conceivable that an
inmate faced with that choice might forego the medical visit in
favor of a cup of Top Ramen noodles.
If inmates showing the first symptoms of infectious disease like
the flu are discouraged from seeing the doctor in favor of
getting something to eat, this could have the unintended adverse
consequence of allowing the disease to spread throughout the
jail. The existing law, which the bill does not change, states:
The medical provider may waive the fee for any
inmate-initiated treatment and shall waive the fee in
any life-threatening or emergency situation, defined
as those health services required for alleviation of
severe pain or for immediate diagnosis and treatment
of unforeseen medical conditions that if not
immediately diagnosed and treated could lead to
disability or death. (Penal Code 4011.2(d).)
The problem with this provision is that, in many instances, the
inmate may not know when they put in the request for a medical
visit, whether their symptoms are related to a condition that
would result in a fee waiver. The Los Angeles Sheriff's
Department states that inmates are told which ailments they may
seek medical attention for at no charge and this would help
address this issue. As with the vending machines, it is not
clear that this practice extends to all jails statewide.
COULD THIS INCREASED CO-PAY DISCOURAGE INMATES WITH COMMUNICABLE
DISEASES FROM SEEKING MEDICAL ATTENTION?
ARE CURRENT POLICIES IN PLACE THAT WOULD EFFECTIVELY ADDRESS
THAT ISSUE?
ARE THOSE POLICIES IN EFFECT AT ALL JAILS STATEWIDE?
3. Use of the Inmate Welfare Fund
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Recently, questions have been raised about use of money
deposited into the Inmate Welfare Fund. Exactly what uses this
money may be put to have been interpreted quite broadly by some
sheriffs departments. In March of this year, the Sacramento Bee
reported allegations that the Sacramento County Sheriff's
Department spent over $1 million from the inmate welfare fund to
pay for additional jail security and a detention center remodel.
"That money is supposed to go for the welfare of the
inmates," said Melanie Morgan, who teaches a domestic
violence awareness class to inmates as part of the
Incarcerated Men's Accountability Program, or IMAP.
California's penal code allows jails to set up stores
where inmates can buy items such as cigarettes,
writing materials and toiletries. Profits go to the
inmate welfare fund. The fund is also fed by proceeds
from inmates' collect calls - often the commissions
paid by telephone companies to the jail.
The money, according to the penal code, "shall be
expended by the sheriff primarily for the benefit,
education and welfare of the inmates confined within
the jail."
This fiscal year, the fund totaled $4.8 million. But
its budgeted expenses included $674,000 for security
cameras at the main jail, $260,000 for a
closed-circuit television system and $175,000 for
construction costs at the Rio Cosumnes Correctional
Center, according to budget documents.
James Lewis, chief deputy and the head of corrections,
said the use of funds was within "the spirit and
letter of the law."
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Sheriff John McGinness said the only people who
profited from use of the funds were inmates. "It
unequivocally contributes to the safety of the
facility and therefore to the welfare of the inmates
housed there," McGinness said.
But Morgan said the money should have gone to people
programs, not mortar and brick.
"Those kinds of things should be paid for outside with
a different source of money," she said. "That's
playing fast and loose with the intent when the
Legislature passed that code section."
The controversy isn't exclusive to Sacramento. Grand
juries in Orange and Los Angeles counties have
questioned how their sheriff's departments used inmate
welfare funds.
A 2005 lawsuit in Santa Clara County accused that
county's department of corrections of improperly using
the inmate welfare fund for expenses the department
should have covered with general fund revenue,
according to a copy of the complaint.
The county settled the suit last year. It agreed to
return $1.5 million to the inmate welfare fund and
changed policies to limit its use, according to the
settlement agreement.
"Part of our settlement is that money absolutely
cannot be used for security," said Kyra Kazantzis,
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directing attorney of the Public Interest Law Firm,
which represented inmates in the Santa Clara lawsuit.
Much of the controversy over inmate welfare funds
comes from vague wording that dictates their use,
Kazantzis said.
The penal code says, "Any funds that are not needed
for the welfare of the inmates may be expended for the
maintenance of county jail facilities."
That leaves too much room for interpretation,
Kazantzis said.
"It's incredibly poorly drafted," she said. "If the
language was crystal clear, we probably wouldn't have
settled. ? We were confident enough in the language
that we filed a lawsuit."
The issues in Santa Clara County arose when that
county was having serious budget problems, Kazantzis
said.
Similarly, Sacramento County is grappling with a
projected general fund shortfall of almost $170
million in the fiscal year starting July 1.
In tough times, sheriff's departments need to find
ways to cover costs, McGinness said.
"I'd clearly accept general fund money if it was
available," he said. "As budgets get more challenged,
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the potential for creativity is something we have to
be real careful about."
The inmate welfare fund is an important pot of money
that should help rehabilitate inmates, not pay for
equipment or construction costs, said Mark
Throckmorton, director of Manalive-Sacramento Inc., an
anti-violence program for inmates and probationers.
"The programs this fund is intended to provide for
greatly increase public safety," Throckmorton said.
And it's not taxpayers' money, he added.
"This is money that literally comes from the inmates
and their families," Throckmorton said.
Morgan said she fears the Sheriff's Department might
shutter her IMAP program and HALT, the Housing
Alternatives and Living in Transition program at Rio
Cosumnes. The inmate fund pays for HALT and IMAP and
other rehabilitation and recreational programs. The
department already shut down the Center for
Corrections Alternative Programs last fall because of
a state-funding shortfall.
Sheriff's officials, however, said there are no plans
to shut down Morgan's program or HALT.
Morgan said she plans to contact the state attorney
general's office about the sheriff's use of inmate
welfare money.
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"All we really want is someone to look into it,"
Morgan said. (Misuse of Fund to Help Inmates Alleged,
Sacramento Bee, Mar. 16, 2009,
http://www.sacbee.com/302/story/1702175.html.)
This bill would actually create a fund within a fund by
specifying that, while the existing $3 co-pay will still go to
the county general fund, any money raised by charging inmates
this additional $3 co-pay will be deposited in the inmate
welfare fund to be spent "by the sheriff only for the benefit
and education of the inmates confined within the jail. These
services and programs may include education, drug and alcohol
treatment, library and other service oriented or educational
programs deemed appropriate by the sheriff, including reentry
services pursuant to Section 4025.5."
One issue this raises is whether the cost of administering this
sequestered fund within the inmate welfare fund will exceed any
proceeds raised. It is also not clear whether this language
will be subject to the same broad interpretation as the inmate
welfare fund as a whole.
WOULD ANY ADDITIONAL FUNDS GENERATED BY RAISING THE CO-PAY TO
JAIL INMATES FOR MEDICAL VISITS BE SPENT ON INMATE WELFARE?
4. Argument in Support
The Los Angeles County Sheriff's Department states:
California Penal Code section 4011.2(a) authorizes a
sheriff, chief or director of corrections, or chief of
police to charge a fee in the amount of three dollars
($3) for each inmate-initiated medical visit of an
inmate confined in a county jail or city jail. This
amount is insufficient to off-set the expenses
incurred for inmate medical care.
The Los Angeles County Sheriff's Department
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expenditures for inmate medical services are
approximately $170 million per year. The Sheriff's
Department operates 13 medical facilities and a 196
bed, licensed sub-acute medical facility which
provides basic medical, psychiatric, pharmaceutical,
and nursing services to prisoners in the county jail.
They respond to more than 7,000 inmate sick calls
every day and distribute prescribed medication to more
than 6,000 inmates every day. This Correctional
Treatment Center (CTC) is the only advanced medical
facility in any jail facility in California. We are a
model for the current federal receiver of the state
prison system, which has sent a team of people to
examine and make recommendations on how the state
could implement such systems and procedures.
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Raising the fee to six dollars ($6) and depositing the
additional three dollars ($3) into the inmate welfare
fund would enhance funds used to help inmates while in
county jail and for a period of time after they are
released.
5. Argument in Opposition
Legal Services for Prisoners with Children writes:
Similar to the county jails, CDCR requires state
prisoners to pay $5 for each inmate initiated medical
visit which is not related to an acute medical
emergency or an ongoing chronic illness. All CDCR
prisoners must pay this fee unless they are determined
to be indigent, i.e., having less than $5 (or in some
cases only $1) in one's inmate account. Our
organization has interviewed literally hundreds of
state prisoners who report that the $5 co-pay
frequently represents a barrier to medical care and
discourages utilization of services for poor
prisoners. Prisoners often must choose between
accessing health care or, for example, purchasing
needed hygiene supplies such as soap and toothpaste.
As a result of this financial burden, prisoner
patients may delay treatment of a condition until it
is in a much more acute state, thus risking more
extensive and costly care. Given California's current
severe budget crisis, it would seem fiscally prudent
to encourage early medical interventions among
prisoners in order to potentially save significant
money in the long run.
Additionally, a January 2000 Bureau of State Audits
report concluded that CDCR's co-payment program failed
to generate the expected revenue anticipated, created
an undue bureaucratic burden to administrate and
raised questions about how collected funds were being
tracked and used. The report revealed that the
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program cost $3.2 million per year to operate but only
averaged a collection of $654,000 per year.
Ultimately, the state auditor recommended the
elimination of the state's prison co-pay program.
Our organization has several other concerns regarding
AB 1487. Unlike prisoners in the state correctional
system who are sometimes able to generate income
through their participation in a paid prison work
assignment, people incarcerated in county jails lack
the ability to work and earn money. They are totally
dependent on their own existing financial resources or
from the support of loved ones. We suspect the
existing $3 fee already poses a great challenge for
many county jail prisoners.
AB 1487 states that the additional $3 collected will
go towards the Inmate Welfare Fund (IWF). Under
California Penal Code Section 4025, the Inmate Welfare
Fund "is mandated to provide services essential to the
benefit, welfare, and educational needs of the inmates
confined in detention facilities." In recent years,
several County Sheriff's Departments (including
Sacramento, Orange County, Los Angeles and Santa
Clara) have come under fire for diverting funds from
the IWF in order to pay for expenses which should have
been covered with general fund revenues, such as
additional jail security and a detention center
remodel. As a result, our organization is deeply
concerned that AB 1487 will not fulfill its promise to
help prisoners.
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