BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 1399
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          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. 








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          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  








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            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  








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            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?  








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            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?








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            "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  








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            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."








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           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