BILL ANALYSIS SB 1399 Page 1 Date of Hearing: August 4, 2010 ASSEMBLY COMMITTEE ON APPROPRIATIONS Felipe Fuentes, Chair SB 1399 (Leno) - As Amended: August 2, 2010 Policy Committee: Public SafetyVote:4-2 Urgency: No State Mandated Local Program: No Reimbursable: No SUMMARY This bill establishes a medical parole program for inmates suffering from a permanent, incapacitating condition. Medical parole eliminates the need for costly security and makes these individuals eligible for Medi-Cal and federal funding. Specifically, this bill: 1)Provides that any inmate sentenced to state prison - other than persons sentenced to death, to life without possibility of parole, or to a term for which parole is prohibited by initiative - whom the institution head physician (IHP) determines 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 the original sentencing; and that the conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety, be granted medical parole if the Board of Parole Hearings (BPH) determines the inmate does not reasonably pose a threat to public safety. 2)Specifies that medical parole hearings be conducted by two-person panels including at least one commissioner. The BPH shall determine whether the inmate would pose a reasonable threat to public safety, and make written findings. In case of a tie vote, the matter shall be referred to the full BPH for a decision. Hearings may be held in the inmate's absence. 3)Specifies medical parole be conducted in accord with the Victim's Bill of Rights Act of 2008. SB 1399 Page 2 4)Requires the Department of Corrections and Rehabilitation (CDCR) to (a) ensure a medical parolee has applied for any federal entitlement programs and possesses a discharge medical summary, full medical records, and medications; (b) enter into 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; and (c) complete parole plans for inmates referred to the BPH for medical parole. 5)Requires the state to pay the state share of Medi-Cal costs for medical parolees and to assume responsibility for medical parolees not eligible for public insurance. The state shall reimburse providers for medical treatment and long-term care costs of medical parolees at rates generally no higher than 130% of Medicare, as specified in Penal Code Sec 5023.5, unless these parolees are eligible for public insurance or have the means to pay privately. 6)Requires the state to reimburse counties for costs associated with providing a medical parolee a public guardian. 7)Specifies when a CDCR primary care physician identifies an inmate that meets the criteria for medical parole, the primary care physician shall recommend to the IHP that the inmate be referred to the BPH for medical parole. Within 30 days of receiving that recommendation, the IHP shall refer the matter to the BPH. If the IHP does not concur, the IHP must provide the primary care physician a written explanation of the reasons for denying the referral. In addition, an inmate or his or her family member or designee may independently request consideration for medical parole by contacting the IHP or CDCR, whereupon a process similar to the primary care physician-initiated recommendation ensues. 8)Authorizes CDCR parole and the BPH to impose reasonable conditions on medical parolees, including electronic monitoring. In addition, a medical parolee may be required to submit to an examination by a physician - of BPH's choosing - to diagnose the parolees's current medical condition. If such an exam takes place, a report shall be submitted to the board. If the BPH determines the parolee's medical condition has improved to the extent the parolee no longer qualifies for SB 1399 Page 3 medical parole, the parolee shall be returned to CDCR custody. 9)Provides that a determinately-sentenced inmate on medical parole remains on medical parole until the earliest possible parole date, at which time, the parolee begins serving parole under existing parole provisions. An indeterminately-sentenced inmate on medical parole remains on medical parole until the earliest possible parole date, at which time, the parolee becomes eligible for parole consideration under existing parole provisions. FISCAL EFFECT 1)Significant net annual 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 which 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. This includes 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 per inmate, per year, to $100,000, 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 inmate, per year, to $100,000 SB 1399 Page 4 per year, 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 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 medical parolees is in the range of 35, (a) ensure a medical parolee has applied for any federal entitlement programs and possesses a discharge medical summary, full medical records, and medications; (b) enter into 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 BPH for medical parole; and (d) hold additional parole hearings and require electronic monitoring in certain cases. COMMENTS 1)Rationale . The author references the significant increase in the cost of medical care in state prison - between 2005-06 and 2008-09, costs more than doubled, from $900 million to $2 billion - as well as specific medical cases identified by the federal medical receiver in which just 21 medically incapacitated inmates residing in nursing homes or hospitals outside prison walls are costing the state about $41 million per year for contract medical care and 24-hour security. The author - and the federal health care receiver - contend such expenditures are unnecessary, if not indefensible. According to the author, "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? SB 1399 Page 5 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." 2)The California Prison Health Care Receivership is a non-profit organization created to house the activities of the federal Receiver. The Receivership was established by U.S. District Court Judge Thelton E. Henderson as the result of a 2001 class action law suit (Plata v. Schwarzenegger) over the quality of medical care in the state's 33 prisons. The court found that the care violated the Eighth Amendment of the U.S. Constitution, which forbids cruel and unusual punishment of the incarcerated. In 2006, the court appointed the receiver to oversee the delivery of inmate medical care within CDCR. According to the Department of Finance (DOF) in a 2010-11 budget change proposal, since 2006 the receiver has significantly increased the number of clinical staff, clinician pay, access to CDCR clinicians, and referrals to specialists and contracted providers, which has resulted in the cost of inmate medical services increasing from $883 million in 2005-06 to $2 billion in 2008-09 with only a slight reduction in expenditures anticipated for 2009-10 and 2010-11. The average cost of medical care was $11,627 per inmate in 2008-09 - double and triple what other states are spending on inmate health care. 3)The sponsor of this bill, federal receiver Clark Kelso , contends the bill will (a) result in more bed space for inmates who actually pose a threat to public safety; increase access to federal Medi-Cal benefits, and (c) reduce state spending by tens of millions of dollars. According to the receiver, "California's prison spending is out of control. The total CDCR budget for incarcerating the state's prisoners has risen to a whopping $9.6 billion in 2009. This spending has been increasing at an average rate of 8 percent each year and it is the taxpayers of the State that must bear the burden of these costs? SB 1399 Page 6 "Incarcerated inmates, regardless of their medical condition, are not eligible to receive any federally funded medical care. However, these restrictions do not apply to persons on parole, meaning that SB 1399 would allow the state to receive federal reimbursement for a significant portion of the costs associated with inmates eligible to be placed on medical parole. Currently, prisoners who are suffering from severe medical incapacitation are treated in correctional treatment center beds, outside hospital patient beds, or hospice beds; the price tag for which starts at nearly $115,000 a year. Outside hospital beds average a cost of $3,500 per day. When you add the guarding costs to that (2 correctional officers per shift, 3 shifts per day, straight time plus benefits) the number jumps to $5,406 a day. So the total cost for a single inmate in this type of treatment setting is nearly $2 million -- $1,973,252. Taking that into account, the savings that could be realized given that the average annual cost of Medi-Cal fee-for-service skilled nursing care is only about $60,000 would be substantial. Further, the Medi-Cal cost share is split, 50 percent state and 50 percent federal. This means the state would only pay half of the cost of caring for a parolee being treated in the community if he or she qualified for Medi-Cal. It is also conceivable that many of these inmates will qualify for Medicare which is entirely funded by the federal government." 4)The existing compassionate release process authorizes the court to recall the sentence of a dying or incapacitated inmate if the CDCR Secretary or the BPH determine the inmate is either a) terminally ill with an incurable condition caused by an illness that would produce death within six months, as determined by a physician employed by the department; or, b) the inmate 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 that incapacitation did not exist at the time of the original sentencing; 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 the BPH may recommend to the court that the SB 1399 Page 7 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. Statistics provided by CDCR, in several versions provided to staff, are unreliable in that all versions conflict. Despite the inconsistencies, however, it appears the number of annual compassionate releases in the past several years can be measured in single digits. 5)Federal three-judge panel orders prison population reduction. The panel was established in 2008 by a federal court to determine whether overcrowding is the primary cause of the constitutional violations regarding medical and mental health services in the prison system and to consider remedies to the state's inmate overcrowding crisis. On January 12, 2010, the Three Judge Panel issued its final ruling ordering the state to reduce the prison population by about 40,000 inmates in the next two years. This order is stayed pending appeal to the United States Supreme Court. 6)Support. According to the California State Sheriffs' Association, "SB 1399 would establish a process to allow the state to medically parole its sickest inmates. CDCR and our partners in law enforcement continue to have interest in working on process and definitions contained in SB 1399... Medical parole allows for inmates to remain on parole and under the supervision of CDCR while freeing bed space and reducing costs. These inmates will be medically recommended by their Chief Medical Officer to the Board of Parole Hearing as having a significant and permanent condition, disease or syndrome. "In light of the rising costs of providing inmate health care and the associated costs of incarceration, medical parole offers a supervised alternative to incarceration as these inmates are still subject to the terms of their parole, including GPS. Further, inmates sentenced to death, life without the possibility of parole, or those sentenced under the three strikes law are not eligible." SB 1399 Page 8 7)Opposition . According to Crime Victims United of California (CVUC), "the push to continually reduce sentenced persons is unfair to victims. Current law already provides for a variety of sentence reduction credits that allow many inmates to serve only 50% of the sentences. Victims and their families should be able to feel a sense of justice that the time served by an inmate for his or her crime(s) is not only reflective of the sentence imposed but of the crime committed." Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081