BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 1399
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          SENATE THIRD READING
          SB 1399 (Leno)
          As Amended  August 20, 2010
          Majority vote

           SENATE VOTE  :21-13  
           
           PUBLIC SAFETY       4-2         APPROPRIATIONS      10-4        
           
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          |Ayes:|Ammiano, Beall, Hill,     |Ayes:|Fuentes, Bradford,        |
          |     |Skinner                   |     |Charles Calderon, Coto,   |
          |     |                          |     |Davis, De Leon, Hall,     |
          |     |                          |     |Skinner, Torlakson,       |
          |     |                          |     |Torrico                   |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Gilmore, Portantino       |Nays:|Conway, Harkey, Miller,   |
          |     |                          |     |Nielsen                   |
           ----------------------------------------------------------------- 
           SUMMARY  :  Establishes a medical parole program, as specified.   
          Specifically,  this bill  :  

          1)Provides that, except as to those prisoners specified, any  
            prisoner sentenced to state prison with a determinate term who  
            the head physician at the institution where the prisoner is  
            located determines is permanently medically incapacitated with  
            a medial condition that renders the prisoner permanently  
            unable to perform activities of daily living, results in  
            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 (BPH) determines that the conditions  
            under which the prisoner would be released would not  
            reasonably pose a threat to public safety.  

          2)Specifies that medical parole 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 is prohibited by any initiative statute.  Provides that  
            the parole placements and related provisions shall not be  
            construed to alter or diminish the rights conferred under the  
            Victim's Bill of Rights Act of 2008:  Marcy's Law.

          3)States that when a physician employed by the California  
            Department of Corrections and Rehabilitation (CDCR) who is the  








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            primary care provider for an inmate identifies an inmate that  
            he or she believes meets the medical criteria for medical  
            parole, the primary care physician shall recommend to the head  
            physician of the institution where the prisoner is located  
            that the prisoner be referred to the BPH for consideration for  
            medical parole.  Within 30 days of receiving that  
            recommendation, if the head physician concurs in the  
            recommendation of the primary care physician, he or she shall  
            refer the matter to the BPH, and if the head physician 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.

          4)States that the prisoner or his or her family member or  
            designee may independently request consideration for medical  
            parole by contacting the head physician at the prison or the  
            CDCR Secretary.  Within 30 days of receiving the request, the  
            head physician shall, in consultation with the prisoner's  
            primary care physician, make a determination whether the  
            prisoner meets the criteria for medical parole and, if the  
            head physician determines that the prisoner satisfies the  
            criteria set forth, he or she shall refer the matter to the  
            BPH.  If the head physician 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.

          5)Mandates that CDCR complete parole plans for inmates referred  
            to the BPH for medical parole consideration.  The parole plans  
            shall include, but not be limited to, the inmate's plan for  
            residency and medical care.

          6)Provides that 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 BPH for a decision.

          7)States that upon receiving a recommendation from a head  
            physician of the institution for a prisoner to be granted  
            medical parole, the BPH 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.

          8)States that the BPH or the Division of Adult Parole Operations  








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            shall have the authority to impose any reasonable conditions  
            on prisoners subject to medical parole supervision, including,  
            but not limited to, the requirement that the parolee submit to  
            electronic monitoring.  As a further condition of medical  
            parole, the parolee may be required to submit to an  
            examination by a physician for the purpose of diagnosing their  
            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  
            BPH , based on a medical examination, determines that the  
            person's medical condition has improved to the extent that the  
            person no longer qualifies for medical parole, the BPH shall  
            return the person to the custody of CDCR.

          9)Provides that prisoners sentenced to determinate terms who are  
            placed on medical parole supervision prior to the earliest  
            possible release date and who remain eligible for medical  
            parole shall remain on medical parole until the earliest  
            possible release date; at which time, that parolee shall  
            commence serving a standard parole term as specified.

          10)Provides that prisoners sentenced to indeterminate terms who  
            are placed on medical parole prior to the minimum eligible  
            parole date and who remain on medical parole shall remain on  
            medical parole until the minimum eligible parole date; at  
            which time, the parolee shall be eligible for standard parole  
            as specified.

          11)Provides that CDCR shall, at the time a prisoner is placed on  
            medical parole supervision 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 CDCR.  Any additional records  
            shall be sent to the prisoner's forwarding address after  
            release to health care-related parole supervision.

          12)Specifies that CDCR shall complete all of the following tasks  
            associated with inmates granted medical parole:

             a)   CDCR shall enter into memoranda of understanding with  
               the Social Security Administration and the State Department  
               of Health Care Services in addition to other entities to  
               facilitate prerelease agreements to help inmates initiate  








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               benefits claims;

             b)   Requires CDCR to establish contracts with appropriate  
               medical providers in cases where medical parolees are  
               ineligible for Medi-Cal; and,

             c)   CDCR shall reimburse counties for the costs associated  
               with providing an inmate granted medical parole with a  
               public guardian.

           FISCAL EFFECT  :   According to the Assembly Appropriations  
          Committee:

          1)Significant net annual General Fund (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 with 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.  These include 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, one-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 inmates, per year, to $100,000 per year,  
            one-half of which would be paid by the federal government via  








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            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 of 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 medial parolees is in the range of 35:   
            a) ensure a medial parolee has applied for any federal  
            entitlement programs and possesses a discharge medical  
            summary, full medical records, and medication; b) enter into a  
            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 Board of Parole Hearings for medial parole;  
            and, d) hold additional parole hearings and require electronic  
            monitoring in certain cases.

           COMMENTS  :   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?   
          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.  

          "California is not alone in facing this problem.  Across the  
          country 36 states have implemented some form of medical release  
          to relieve them of the crushing financial burden of keeping  
          inmates in prison whose medical condition has rendered their  
          incarceration no longer necessary.  In 1997, California first  
          authorized the Secretary of CDCR or the BPH to recommend to the  
          sentencing judge that an inmate's sentence be recalled due to  
          terminal illness.  Ten years later that authority was extended  








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          to cover cases of medical incapacitation.  However, last year  
          only two such releases were approved and we continue to  
          incarcerate inmates who could, by any rational standard, be  
          released without posing a threat to the public.  

          "SB 1399 addresses some of the issues that have been identified  
          as problematic in the current law.  Rather than requiring a  
          sentence recall it creates an alternative procedure that permits  
          these inmates to be placed on parole supervision under  
          conditions determined by the parole board, and allows the parole  
          to be revoked if for any reason the parolee's condition changes  
          and creates a danger to the public.

          "This medical parole, will place public safety paramount and  
          stop needlessly punishing the taxpayers.

          Please see the policy committee for a full discussion of this  
          bill.
           

          Analysis Prepared by :    Gabriel Caswell / PUB. S. / (916)  
          319-3744 


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