BILL NUMBER: SB 1399 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 2, 2010
AMENDED IN ASSEMBLY JUNE 23, 2010
AMENDED IN SENATE MAY 20, 2010
AMENDED IN SENATE MAY 11, 2010
AMENDED IN SENATE APRIL 14, 2010
AMENDED IN SENATE APRIL 7, 2010
AMENDED IN SENATE APRIL 5, 2010
INTRODUCED BY Senator Leno
(Principal coauthors: Assembly Members Bonnie Lowenthal and
Ammiano)
FEBRUARY 19, 2010
An act to amend Section 3041 of, to add Section
2065 to, and to add Title 2.3 (commencing with Section 3550) to Part
3 of, the Penal Code, relating to parole.
LEGISLATIVE COUNSEL'S DIGEST
SB 1399, as amended, Leno. Parole: physically or
cognitively debilitated or medical parole: permanently
medically incapacitated inmates.
Existing law generally regulates the granting and conditioning of
parole, and places the duty to monitor parolees on the Division of
Adult Parole Operations. Existing law, the Victim's Bill of Rights
Act of 2008: Marsy's Law, as added by Proposition 9 at the November
4, 2008, statewide general election, provides that the Board of
Parole Hearings or its successor in interest shall be the state's
parole authority and shall be responsible for protecting victims'
rights in the parole process.
This bill would provide that, except as specified, any prisoner
who the chief medical officer at a Department of Corrections
and Rehabilitation facility head physician for the
institution where the prisoner is located determines,
based on the results of medical evaluations as
provided , suffers from a significant and permanent
condition, disease, or syndrome resulting in the prisoner being
physically or cognitively debilitated or incapacitated
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 would
require that parole placements and revocations pursuant to
its provisions shall be made in accordance with
provide 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. The bill would require a physician
employed by the Department of Corrections and Rehabilitation who is
the primary care provider for a prisoner to recommend that a
the prisoner be referred to the Board of Parole
Hearings for consideration for medical parole if the physician
believes the prisoner meets the medical criteria for medical parole.
The bill would provide that the Board of Parole Hearings or the
Division of Adult Parole Operations shall have the authority to
impose any reasonable conditions on prisoners subject to parole
pursuant to this bill, including, but not limited to, the requirement
that parolees submit to electronic monitoring.
Existing law generally provides for the duties and functions of
the Department of Corrections and Rehabilitation. Existing law
provides that the State Department of Health Care Services is
designated as the state agency with full power to supervise every
phase of the administration of health care services and medical
assistance for which grants-in-aid are received from the federal
government or made by the state in order to secure full compliance
with the applicable provisions of state and federal laws.
This bill would require 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 would require the state to pay the state share of
Medi-Cal costs for inmates that have been granted medical parole and
to assume responsibility as the payer of last resort for inmates who
are granted medical parole who are not eligible for public insurance
and who do not have the means to pay privately, as specified.
department to reimburse counties on a quarterly basis
for the nonfederal share of Medi-Cal costs incurred for individuals
who have been granted medical parole, and provide, or provide
reimbursement for, services associated with public guardianship of
medical parolees. The bill would authorize the department to provide
supplemental reimbursements to providers, as specified. The bill
would require the department to establish contracts with appropriate
medical providers in cases where medical parolees are ineligible for
Medi-Cal, as specified.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2065 is added to the Penal Code, to read:
2065. The (a) The
Department of Corrections and Rehabilitation shall complete all
of the tasks associated with inmates granted medical parole pursuant
to Section 3041 or 3550 that are specified in
this section. Subdivisions (b) to (d), inclusive,
(c) and (d) shall apply only to the period of time that
inmates are on medical parole.
(a)
(b) The department shall seek to enter into memoranda
of understanding with the Social Security Administration and the
State Department of Health Care Services , in addition to other
federal, state, or county entities necessary to facilitate
prerelease agreements to help inmates initiate benefits claims.
(b) The state shall pay the state share of Medi-Cal costs for
inmates who have been granted medical parole.
(c) The state shall assume responsibility as the payer of last
resort for inmates who are granted medical parole who are not
eligible for public insurance and who do not have independent means
to pay privately. As the payer of last resort, the state shall
reimburse providers for the medical treatment and long-term care
costs of these medical parolees at rates no lower than the Medi-Cal
rate until such time that these parolees are eligible for public
insurance or have independent means to pay privately.
(d) The state shall reimburse counties for the costs associated
with providing an inmate granted medical parole with a public
guardian.
(c) This subdivision shall be implemented in a manner that is
consistent with federal Medicaid law and regulations. The Director of
Health Care Services shall seek any necessary federal approvals for
the implementation of this subdivision. This subdivision shall be
implemented only to the extent that federal approval, if necessary,
is obtained. If an inmate is granted medical parole and found to be
eligible for Medi-Cal, all of the following shall apply:
(1) The department shall reimburse counties on a quarterly basis
for the nonfederal share of Medi-Cal costs incurred for individuals
who have been granted medical parole.
(2) The department shall directly provide, or provide
reimbursement for, services associated with public guardianship.
(3) The department may provide supplemental reimbursements to
providers amounting to a total reimbursement that is allowable
pursuant to Section 5023.5.
(4) The department and the State Department of Health Care
Services shall work together to do all of the following:
(A) Maximize federal financial participation for service costs,
administrative costs, and targeted case management costs incurred
pursuant to this section.
(B) Determine whether medical parolees shall be exempt from
mandatory enrollment in managed health care and determine the proper
prior authorization process for individuals who have been granted
medical parole.
(5) The department may submit retroactive Medi-Cal claims to the
State Department of Health Care Services for allowable certified
public expenditures incurred by public hospitals that have been
reimbursed by the department.
(d) If an inmate is granted medical parole and found to be
ineligible for Medi-Cal, all of the following shall apply:
(1) The department shall consider the income and assets of a
medical parolee to determine whether the individual has the ability
to pay for the cost of their medical care.
(2) If the individual is unable to pay the cost of their medical
care, the department shall establish contracts with appropriate
medical providers and pay costs that are allowable pursuant to
Section 5023.5.
(3) The department shall retain the responsibility to perform
utilization review and cost management functions that they currently
perform under existing contracts with health care facilities.
(4) The department shall directly provide, or provide
reimbursement for, services associated with public guardianship.
(e) The department and the State Department of Health Care
Services may implement this section by means of all-facility letters,
all-county letters, or similar instructions, in addition to adopting
regulations, as necessary.
SEC. 2. Section 3041 of the Penal Code is
amended to read:
3041. (a) In the case of any inmate sentenced pursuant to any
provision of law, other than Chapter 4.5 (commencing with Section
1170) of Title 7 of Part 2, the Board of Parole Hearings shall meet
with each inmate during the third year of incarceration for the
purposes of reviewing the inmate's file, making recommendations, and
documenting activities and conduct pertinent to granting or
withholding postconviction credit. One year prior to the inmate's
minimum eligible parole release date a panel of two or more
commissioners or deputy commissioners shall again meet with the
inmate and shall normally set a parole release date as provided in
Section 3041.5. No more than one member of the panel shall be a
deputy commissioner. In the event of a tie vote, the matter shall be
referred for an en banc review of the record that was before the
panel that rendered the tie vote. Upon en banc review, the board
shall vote to either grant or deny parole and render a statement of
decision. The en banc review shall be conducted pursuant to
subdivision (e). The release date shall be set in a manner that will
provide uniform terms for offenses of similar gravity and magnitude
with respect to their threat to the public, and that will comply with
the sentencing rules that the Judicial Council may issue and any
sentencing information relevant to the setting of parole release
dates. The board shall establish criteria for the setting of parole
release dates and in doing so shall consider the number of victims of
the crime for which the inmate was sentenced and other factors in
mitigation or aggravation of the crime. At least one commissioner of
the panel shall have been present at the last preceding meeting,
unless it is not feasible to do so or where the last preceding
meeting was the initial meeting. Any person on the hearing panel may
request review of any decision regarding parole for an en banc
hearing by the board. In case of a review, a majority vote in favor
of parole by the board members participating in an en banc review is
required to grant parole to any inmate.
(b) The panel or the board, sitting en banc, shall set a release
date unless it determines that the gravity of the current convicted
offense or offenses, or the timing and gravity of current or past
convicted offense or offenses, is such that consideration of the
public safety requires a more lengthy period of incarceration for
this individual, and that a parole date, therefore, cannot be fixed
at this meeting. After the effective date of this subdivision, any
decision of the parole panel finding an inmate suitable for parole
shall become final within 120 days of the date of the hearing. During
that period, the board may review the panel's decision. The panel's
decision shall become final pursuant to this subdivision unless the
board finds that the panel made an error of law, or that the panel's
decision was based on an error of fact, or that new information
should be presented to the board, any of which when corrected or
considered by the board has a substantial likelihood of resulting in
a substantially different decision upon a rehearing. In making this
determination, the board shall consult with the commissioners who
conducted the parole consideration hearing. No decision of the parole
panel shall be disapproved and referred for rehearing except by a
majority vote of the board, sitting en banc, following a public
meeting.
(c) For the purpose of reviewing the suitability for parole of
those inmates eligible for parole under prior law at a date earlier
than that calculated under Section 1170.2, the board shall appoint
panels of at least two persons to meet annually with each inmate
until the time the person is released pursuant to proceedings or
reaches the expiration of his or her term as calculated under Section
1170.2.
(d) It is the intent of the Legislature that, during times when
there is no backlog of inmates awaiting parole hearings, life parole
consideration hearings, or life rescission hearings, hearings will be
conducted by a panel of three or more members, the majority of whom
shall be commissioners. The board shall report monthly on the number
of cases where an inmate has not received a completed initial or
subsequent parole consideration hearing within 30 days of the hearing
date required by subdivision (a) of Section 3041.5 or paragraph (2)
of subdivision (b) of Section 3041.5, unless the inmate has waived
the right to those timeframes. That report shall be considered the
backlog of cases for purposes of this section, and shall include
information on the progress toward eliminating the backlog, and on
the number of inmates who have waived their right to the above
timeframes. The report shall be made public at a regularly scheduled
meeting of the board and a written report shall be made available to
the public and transmitted to the Legislature quarterly.
(e) For purposes of this section, an en banc review by the board
means a review conducted by a majority of commissioners holding
office on the date the matter is heard by the board. An en banc
review shall be conducted in compliance with the following:
(1) The commissioners conducting the review shall consider the
entire record of the hearing that resulted in the tie vote.
(2) The review shall be limited to the record of the hearing. The
record shall consist of the transcript or audiotape of the hearing,
written or electronically recorded statements actually considered by
the panel that produced the tie vote, and any other material actually
considered by the panel. New evidence or comments shall not be
considered in the en banc proceeding.
(3) The board shall separately state reasons for its decision to
grant or deny parole.
(4) A commissioner who was involved in the tie vote shall be
recused from consideration of the matter in the en banc review.
(f) Notwithstanding any other provision of law, except as provided
in subdivision (g), any prisoner sentenced to a term of imprisonment
under Section 1168 who the chief medical officer at the institution
where the prisoner is located determines, as provided in this
section, suffers from a significant and permanent condition, disease,
or syndrome resulting in the prisoner being physically or
cognitively debilitated or incapacitated 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.
(g) Subdivision (f) 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, pursuant to
subdivision (f), is prohibited by any initiative statute. Parole
placements and revocations pursuant to subdivision (f) shall be made
in accordance with the Victim's Bill of Rights Act of 2008: Marsy's
Law.
(h) When a physician employed by the Department of Corrections and
Rehabilitation who is the primary care provider for an inmate
identifies an inmate that he or she believes meets the medical
criteria for medical parole specified in subdivision (f), the primary
care physician shall recommend to the chief medical officer of the
institution where the prisoner is located that the prisoner be
referred to the Board of Parole Hearings for consideration for
medical parole. Within 30 days of receiving that recommendation, if
the chief medical officer concurs in the recommendation of the
primary care physician, he or she shall refer the matter to the Board
of Parole Hearings, and if the chief medical officer 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.
(i) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may independently
request consideration for medical parole by contacting the chief
medical officer at the prison or the secretary. Within 30 days of
receiving the request, the chief medical officer shall, in
consultation with the prisoner's primary care physician, make a
determination regarding whether the prisoner meets the criteria for
medical parole as specified in subdivision (f) and, if the chief
medical officer determines that the prisoner satisfies the criteria
set forth in subdivision (f), he or she shall refer the matter to the
Board of Parole Hearings. If the chief medical officer 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.
(j) The Department of Corrections and Rehabilitation shall
complete parole plans for inmates referred to the Board of Parole
Hearings for medical parole consideration. The parole plans shall
include, but not be limited to, the inmate's plan for residency and
medical care.
(k) Notwithstanding any other law, 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 board for a decision.
(l) Upon receiving a recommendation from a chief medical officer
of the department for a prisoner to be granted medical parole
pursuant to subdivision (h) or (i), the board, as specified in
subdivision (k), 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.
(m) The Division of Adult Parole Operations shall have the
authority to impose any reasonable conditions on prisoners subject to
medical parole supervision pursuant to subdivision (f), including,
but not limited to, the requirement that the parolee submit to
electronic monitoring. As a further condition of medical parole,
pursuant to subdivision (f), the parolee may be required to submit to
an examination by a physician for the purpose of diagnosing his or
her 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 board determines that
the person's medical condition has substantially improved and that
the person poses a threat to public safety, the board may revoke the
parole and return the person to the custody of the department.
(1) Notwithstanding any other provision of law establishing
maximum periods for parole, a prisoner placed on medical parole
supervision prior to the earliest possible parole date that the
prisoner would otherwise have been released to parole under, shall
remain on medical parole, pursuant to subdivision (f), until that
earliest possible parole date, at which time the provisions of
paragraph (2) shall apply.
(2) At the expiration of the period described in paragraph (1),
the parolee shall commence serving that period of parole provided by,
and under all other provisions of this chapter.
(n) The Department of Corrections and Rehabilitation shall, at the
time a prisoner is placed on medical parole supervision pursuant to
subdivision (f), 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 department. Any additional
records shall be sent to the prisoner's forwarding address after
release to health care-related parole supervision.
SEC. 3. SEC. 2. Title 2.3
(commencing with Section 3550) is added to Part 3 of the Penal Code,
to read:
TITLE 2.3. MEDICAL PAROLE
3550. (a) Notwithstanding any other provision of law, except as
provided in subdivision (b), any prisoner sentenced to a
term of imprisonment under Section 1170 who the
chief medical officer head physician of the
institution where the prisoner is located determines, as provided in
this section, suffers from a significant and permanent
condition, disease, or syndrome resulting in the prisoner being
physically or cognitively debilitated or incapacitated shall be
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 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.
(b) Subdivision (a) 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, pursuant to
subdivision (a), is prohibited by any initiative statute.
Parole placements and revocations pursuant to subdivision (a) shall
be made in accordance with The provisions of this
section shall not be construed to alter or diminish the rights
conferred under the Victim's Bill of Rights Act of 2008: Marsy'
s Law.
(c) When a physician employed by the Department of Corrections and
Rehabilitation who is the primary care provider for an inmate
identifies an inmate that he or she believes meets the medical
criteria for medical parole specified in subdivision (a) the primary
care physician shall recommend to the chief medical officer
head physician of the institution where the
prisoner is located that the prisoner be referred to the Board of
Parole Hearings for consideration for medical parole. Within 30 days
of receiving that recommendation, if the chief medical
officer head physician of the institution
concurs in the recommendation of the primary care physician, he or
she shall refer the matter to the Board of Parole Hearings using
a standardized form and format developed by the department ,
and if the chief medical officer head
physician of the institution 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.
(d) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may independently
request consideration for medical parole by contacting the
chief medical officer head physician at the
prison or the secretary department .
Within 30 days of receiving the request, the chief medical
officer head physician of the institution shall,
in consultation with the prisoner's primary care physician, make a
determination regarding whether the prisoner meets the criteria for
medical parole as specified in subdivision (a) and, if the
chief medical officer head physician of the
institution determines that the prisoner satisfies the criteria
set forth in subdivision (a), he or she shall refer the matter to
the Board of Parole Hearings using a standardized form and
format developed by the department . If the chief
medical officer head physician of the institution
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.
(e) The Department of Corrections and Rehabilitation shall
complete parole plans for inmates referred to the Board of Parole
Hearings for medical parole consideration. The parole plans shall
include, but not be limited to, the inmate's plan for residency and
medical care.
(f) Notwithstanding any other law, 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 board for a decision. Medical parole
hearings may be heard in absentia.
(g) Upon receiving a recommendation from a chief medical
officer of the department for a the head physician of
the institution where a prisoner is located for the prisoner to
be granted medical parole pursuant to subdivision (c) or (d), the
board, as specified in subdivision (f), 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.
(h) Notwithstanding any other provision of law, the board or
the Division of Adult Parole Operations shall have the
authority to impose any reasonable conditions on prisoners subject to
medical parole supervision pursuant to subdivision (a), including,
but not limited to, the requirement that the parolee submit to
electronic monitoring. As a further condition of medical parole,
pursuant to subdivision (a), the parolee may be required to submit to
an examination by a physician selected by the board for
the purpose of diagnosing their the parolee's
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 board
determines , based on that medical examination, that the
person's medical condition has substantially improved and
that the person poses a threat to public safety, the board may revoke
the parole and improved to the extent that the person
no longer qualifies for medical parole, the
board shall return the person to the custody of the department.
(1) Notwithstanding any other provision of law establishing
maximum periods for parole, a prisoner sentenced to a
determinate term who is placed on medical parole supervision
prior to the earliest possible parole date that the prisoner
would otherwise have been released to parole under, shall
release date and who remains eligible for medical parole, shall
remain on medical parole, pursuant to subdivision (a), until
that earliest possible parole release
date, at which time the provisions of paragraph (2) shall
apply parolee shall commence serving that period of
parole provided by, and under the provisions of, Chapter 8
(commencing with Section 3000) of Title 1 .
(2) At the expiration of the period described in paragraph (1),
the parolee shall commence serving that period of parole provided by,
and under all other provisions of, Chapter 8 (commencing with
Section 3000) of Title 1.
(2) Notwithstanding any other provisions of law establishing
maximum periods for parole, a prisoner sentenced to an indeterminate
term who is placed on medical parole supervision prior to the
prisoner's minimum eligible parole date, and who remains eligible for
medical parole, shall remain on medical parole pursuant to
subdivision (a) until that minimum eligible parole date, at which
time the parolee shall be eligible for parole consideration under all
other provisions of Chapter 8 (commencing with Section 3000) of
Title 1.
(i) The Department of Corrections and Rehabilitation shall, at the
time a prisoner is placed on medical parole supervision pursuant to
subdivision (a), 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 department. Any additional
records shall be sent to the prisoner's forwarding address after
release to health care-related parole supervision.
(j) The provisions for medical parole set forth in this title
shall not affect an inmate's eligibility for any other
form of parole or release provided by
law.