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.
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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