BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
7
2
0
AB 720 (Skinner)
As Amended June 24, 2013
Hearing date: July 2, 2013
Penal Code
JM:jr
HEALTHCARE COVERAGE FOR JAIL INMATES UPON RELEASE
HISTORY
Source: Californians for Safety and Justice
Prior Legislation: SB 695 (Hancock) - Ch. 647, Stats. 2011
AB 1628 (Budget Committee) - Ch. 729, Stats. 2010
SB 1147 (Calderon) - Ch. 546, Stats. 2008
Support: American Civil Liberties Union; California Attorneys
for Criminal Justice;
California Pan-Ethnic Health Network; California
Public Defenders Association; California State
Association of Counties; California State Conference
of the National Association for the Advancement of
Colored People; Drug Policy Alliance; Ella Baker
Center for Human Rights; Greenlining Institute; Legal
Services for Prisoners with Children; Local Health
Plans of California;
Los Angeles Regional Reentry Partnership; National
Association of Social Workers - California Chapter;
San Francisco Sheriff; Taxpayers for Improving Public
Safety; Women's Foundation of California; Berkeley
Organizing Congregations for Action; California Nurses
Association; County Alcohol and Drug Program
Administrators of California; County of Lassen; County
AB 720 (Skinner)
PageB
of Sacramento; California State Associations of
Counties; Chief Probation Officers of Contra Costa
County; Friends Outside; Housing California; National
Council of La Raza; Rural Counties Representatives of
California; Urban Strategies Council; California
Primary Care Association; Board of Supervisors County
of Santa Clara; Californians for Safety and Justice;
Chief Probation Officers of California
Opposition:None known
Assembly Floor Vote: Ayes 56 - Noes 19
KEY ISSUE
SHOULD EACH COUNTY DESIGNATE AN ENTITY TO ASSIST JAIL INMATES APPLY
FOR SPECIFIED HEALTH INSURANCE COVERAGE UPON RELEASE?
PURPOSE
The purposes of this bill are to 1) require each county to
designate an entity or agency to assist jail inmates in applying
for a health insurance affordability program, where such inmates
appear to be eligible for Medi-Cal, the Healthy Families
Program, or federally subsidized coverage in the California
Health Benefit Exchange; 2) provide that the sheriff may not be
designated to perform this duty unless he or she consents; 3)
exclude inmates who are covered by insurance; and 4) prohibit
detained individuals who are currently enrolled in the Medi-Cal
program from being terminated from Medi-Cal coverage due to
their detention unless required by federal law, or they become
ineligible.
Existing law establishes the Medi-Cal program, administered by
the Department of Health Care Services (DHCS), to provide
comprehensive health benefits to low-income children, their
parents or caretaker relatives, pregnant women, elderly, blind
AB 720 (Skinner)
PageC
or disabled persons, nursing home residents, and refugees who
meet specified eligibility criteria. (Welf. & Inst. Code �
14000 et seq.)
Existing law states that a person or family may be eligible for
Medi-Cal under one of the following programs (22 Cal. Code Regs.
Section 50201):
Aid to Families with Dependent Children
Supplemental Security Income/State Supplemental Program
Other Public Assistance
Medically Needy
Medically Indigent
Miscellaneous Special Programs
Medi-Cal Special Treatment Programs.
Existing law specifies that the county welfare department in
each county shall be the agency responsible for local
administration of the Medi-Cal program under the direction of
DHCS. (22 Cal. Code Regs. � 50004, subd. (c).)
Existing law provides that, notwithstanding any other provision
of law, the California Department of Corrections and
Rehabilitation and DHCS may develop a process to maximize
federal financial participation for the provision of inpatient
hospital services rendered to individuals who, but for their
institutional status as inmates, are otherwise eligible for
Medi-Cal or the Low Income Health Program. (Pen. Code � 5072,
subd. (a).)
Existing law exempts from eligibility of Medi-Cal benefits
inmates of a "public institution" unless they are out on bail or
own recognizance. This includes inmates in prison, county, city
or tribal jail, and inmates in custody awaiting arraignment,
conviction or sentencing. (Medi-Cal Eligibility Procedures
Manual, Article 6, Section 50273 - Revised Apr. 18, 2001.)
Existing law states that if an individual under 21 years of age
is a Medi-Cal beneficiary on the date he or she becomes an
inmate of a public institution, his or her benefits shall be
AB 720 (Skinner)
PageD
suspended effective the date he or she becomes an inmate of a
public institution. It provides that the suspension will end on
the date he or she is no longer an inmate of a public
institution or one year from the date he or she becomes an
inmate of a public institution, whichever is sooner. (Welf. &
Inst. Code � 14011.10, subd. (c).)
Existing federal law - the Patient Protection and Affordable
Care Act (ACA) - was signed into law in 2010. The goals of the
ACA include improving health care quality, reducing costs and
the increasing access to affordable health coverage by
prohibiting insurance companies from denying coverage based on
pre-existing conditions, allowing young adults to stay on their
parents' insurance longer, providing tax credits to help people
pay for coverage, and allowing states to cover more people on
Medicaid. (Pub. L. No. 111-148 (MAR. 23, 2010) 124 Stat. 133.)
Existing law provides that Medi-Cal benefits shall be provided,
as specified, to an eligible or currently enrolled person held
in a county juvenile detention facility until the date of
adjudication (trial). Benefits must be suspended if the
individual is placed in an institution. (Welf. & Inst. Code �
14011.11.)
This bill requires each county to designate an individual or
agency to assist specified county jail inmates with submitting
application for coverage from a health insurance affordability
program if both of the following conditions are met:
The inmate has been in detention for at least 72 hours;
and
The inmate appears potentially eligible to be enrolled
in the health insurance affordability program upon release.
The inmate does not currently have health insurance.
This bill provides that the county may appoint the sheriff to
perform this duty only with the agreement of the sheriff.
This bill provides that an entity designated to assist inmates
with health insurance applications shall be either a
AB 720 (Skinner)
PageE
governmental agency or a community based organization.
This bill provides that any community-based organization
designated to assist inmates in enrolling in a health insurance
program shall be approved by the jail administrator.
This bill , for purposes of enrolling jail inmates in health
insurance plans, defines a "health insurance affordability
program" as a program that is one of the following:
The state's Medi-Cal program;
The state's children's health insurance program (CHIP),
which is known as the Healthy Families Program in
California; or,
A program that makes coverage in a qualified health plan
through the California Health Benefit Exchange (Covered
California) with federally established advance payment
premium tax credits or cost-sharing reductions.
This bill prohibits individuals who are currently enrolled in
the Medi-Cal program from being terminated from the Medi-Cal
program due to their detention, unless required by federal law
or they become otherwise ineligible.
This bill requires the state to establish a process to enable
counties to obtain the maximum available FFP for administrative
activities related to this bill.
This bill authorizes the individual or agency in 1) above to act
on behalf of an individual detained in county jail for purposes
of applying, or a determination of eligibility for, a health
insurance affordability program.
This bill permits DHCS to implement this bill by means of
all-county letters or similar instructions, without taking
regulatory action under the Administrative Procedure Act.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
AB 720 (Skinner)
PageF
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these
principles, ROCA was applied as a content-neutral, provisional
measure necessary to ensure that the Legislature did not erode
progress towards reducing prison overcrowding by passing
legislation which would increase the prison population. ROCA
necessitated many hard and difficult decisions for the
Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
AB 720 (Skinner)
PageG
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
AB 720 (Skinner)
PageH
1. Need for this Bill
According to the author:
AB 720 would require counties to enroll eligible
inmates into the Medi-Cal program before being
released. This would address one of the main barriers
to re-entry by helping formerly incarcerated inmates
access physical, mental health and substance abuse
services. Research shows that formerly incarcerated
individuals who have access to medical services upon
release have reduced recidivism rates, increasing the
likelihood they will become productive citizens. A
2009 California Department of Corrections and
Rehabilitation report showed a 61% recidivism
reduction for female inmates who underwent substance
abuse treatment and a 29% reduction for male inmates
who underwent such treatment.
2. Medi-Cal Expansion under the Affordable Care Act
On March 23, 2010, President Obama signed the ACA into law
(Public Law 111-148), as amended by the Health Care and
Education Reconciliation Act of 2010 (Public Law 111-152). The
ACA greatly expands health insurance coverage in California.
Beginning in 2014, millions of low- and middle-income
Californians will gain access to coverage under the expansion of
Medi-Cal through easier enrollment requirements established for
Medi-Cal, and through premium tax credits and cost-sharing
subsidies offered through Covered California. As a result of
the coverage expansions under the ACA, between 89 and 91 percent
of non-elderly Californians are predicted to have health
coverage under the ACA, and the number of uninsured is projected
to decrease by between 1.8 and 2.7 million by 2019.
Prior to the enactment of the ACA, adults were generally not
eligible for Medi-Cal coverage unless they were low income and
met categorical eligibility requirements, such as having minor
children living at home, having a disability, being over the age
AB 720 (Skinner)
PageI
of 65, or being pregnant. The Medicaid expansion's largest
enrollment impact will be from the expansion to non-disabled
childless adults with incomes at or below 138 percent of the FPL
(for a single adult, 138 percent of the FPL is $1,321 per month
or $15,856 per year in 2013). Among other provisions, AB X1 1
(John A. P�rez) would implement the Medicaid expansion in
California, and SB X1 1 (Hernandez and Steinberg) would
establish the benefit package for the expansion population and
augment the benefit package for the current population.
3. Suspension - not Termination - of Medi-Cal Eligibility while a
Person is Jailed
This bill prohibits individuals who are currently enrolled in
the Medi-Cal program from being terminated from coverage unless
required by federal law, or they otherwise become ineligible .
States cannot claim Medicaid funding for services furnished to
any person who is incarcerated or receiving mental health
treatment in a specified public facility. However, federal law
and regulations do not require that Medicaid eligibility be
terminated while individuals are in jail or a mental health
facility. Instead, a state may place the person in suspended
status and return the individual to active Medicaid eligibility
upon release from jail (including release to parole or
probation) or discharge from the mental health facility.
In 2004, the Center for Medicare and Medicaid Services (CMS)
issued a State Medicaid Director Letter to clarify that
incarceration or institutionalization: "? does not affect the
eligibility of an individual for the Medicaid program.
Individuals who meet the requirements for eligibility for
Medicaid may be enrolled in the program before, during, and
after the time in which they are held involuntarily in secure
custody of a public institution or as a resident of an IMD
[institute for mental disorders]."
Instead of terminating Medicaid eligibility, CMS urged states to
"? establish a process under which an eligible inmate or [IMD]
resident is placed in a suspended status so that the state does
not claim FFP for services the individual receives, but the
AB 720 (Skinner)
PageJ
person remains on the state's rolls as being eligible for
Medicaid (assuming the person continues to meet all applicable
eligibility requirements). Once discharge from the facility is
anticipated, the state should take whatever steps are necessary
to ensure that an eligible individual is placed in payment
status so that he or she can begin receiving Medicaid-covered
services immediately upon leaving the facility."
4. Expansion of Drug and Mental Health Treatment in the County
Criminal Justice System
Extensive research has concluded that many, if not most, persons
in the criminal justice system have unmet needs for treatment
for abuse of drugs or alcohol, or both. Many of these persons
suffer from co-existing mental illnesses. The National
Institutes of Health reported that criminal offenders have drug
abuse and dependence rates that are four times that of the
general population.<1> Despite the nearly universal agreement
that drug treatment should be expanded for inmates and persons
on community supervision, relatively little money is spent on
drug treatment. SACPA - the Substance Abuse and Crime
Prevention Act (Prop. 36, Nov. 2000 Gen. Elec.) - requires that
nonviolent drug offenders be given treatment on probation,
without incarceration. SACPA received state funding for six
years, but now receives no state money. Counties must find
funding for the required treatment. The lack of funding has
resulted in long waiting lists for treatment, limited capacity
and limited programs. UCLA studies of SACPA found that every
dollar spent on the program saved $2.50 dollars and that savings
rose to $4 for defendants who completed SACPA treatment.<2> The
NIH found that every dollar spent on drug treatment saved
between $2 and $6.
Similarly, drug courts are widely heralded as effective
programs, but are chronically underfunded. Drug courts use the
---------------------------
<1>
http://report.nih.gov/NIHfactsheets/ViewFactSheet.aspx?csid=22
<2>
http://www.adp.state.ca.us/SACPA/PDF/SACPAEvaluationReport_Final2
007Apr13.pdf, p. 6.
AB 720 (Skinner)
PageK
collaborative courts model, in which the judge closely monitors
participants in collaboration with probation, prosecutors,
defense attorneys, treatment providers and community
organizations. Drug court participants need not have been
convicted of a drug offense, but drug abuse is often at the root
of their criminal behavior. The third major program for drug
treatment in the criminal justice system and the county level
are the deferred entry of judgment (DEJ) and related pre-plea
diversion programs.<3> In DEJ, a defendant pleads guilty to a
drug offense and judgment is deferred pending his or her
participation in a drug treatment program. If the person
successfully completes the program, the conviction and
underlying charges are dismissed. (Pen. Code � 1000, et seq.)
Funding for DEJ treatment programs is also scarce, as it must be
provided by the county, although the county may seek funding
from various sources, including the federal government and the
state.
This bill will likely make drug treatment much more available to
former jail inmates, including those who are being supervised in
the community. The ACA has confirmed that mental health and
drug treatment should have parity with other forms of medical
treatment. The Mental Health Parity and Addiction Equity Act of
2008 (MHPAEA) requires that private and public sector employers
with 50 or more employees who offer coverage for mental illness
and substance use disorders "provide those benefits in a no more
restrictive way than all other medical and surgical
procedures."<4> The parity rule should apply under the ACA to
individuals who purchase insurance on the exchange or who are
otherwise eligible for Medi-Cal.
This bill could be especially helpful for judges and defendants
---------------------------
<3> In a true diversion program, the defendant is placed in a
treatment program without having to plead guilty. If the
defendant completes the program, the charges are dismissed. If
the defendant fails, the case moves forward. A diversion
program can be instituted if the court, district attorney and
public defender agree. (Pen. Code � 1000.5.)
<4> Substance Abuse and Mental Health Services Administration,
January 15, 2013, http://www.samhsa.gov/healthreform/parity/
AB 720 (Skinner)
PageL
in split-sentencing cases under Penal Code Section 1170,
subdivision (h)(5). Under a split sentence, the court sentences
a defendant to a felony term in the county jail, but suspends a
portion of the sentence and places the defendant on supervision
in the community. During the suspended portion of the sentence,
the defendant is supervised in the community by the probation
department in a program equivalent to probation. The court
could order a defendant into drug treatment upon commencement of
the period of supervision.
5. Amendments Requested by the Sheriffs: 1) Broad Discretion for
Designation of the Entity that will Enroll Inmates in
Healthcare Coverage, and 2) Inmates are Eligible for
Enrollment only after Court Remand to the Custody of the
Sheriff
The author and sponsor have been in ongoing discussions with the
California State Sheriffs' Association and representatives of
the Los Angeles Sheriff concerning requested amendments. The
author has agreed to these amendments, described below:
1) The bill provides that the county board of
supervisors will designate an agency or entity to enroll
inmates in medical care programs. The amendments eliminate
a definition of the term "entity." Leaving the term
undefined provides more discretion and flexibility to
counties in implementing the bill.
2) The bill will be amended to provide that an inmate
will not be eligible for evaluation or enrollment in a
health care program until he or she has been remanded to
the Sheriff or correctional administrator for at least 72
hours. An arrestee could be held in police or sheriff's
sub-station for much of the 72 period before being
transferred to a main jail facility. Also, an arrestee may
be released on bail at any time, making it infeasible to
complete the process of evaluation or enrollment in a
healthcare program. Requiring that inmates shall not be
subject to evaluation and enrollment until the inmate has
AB 720 (Skinner)
PageM
been remanded to the custody of the sheriff or jail
administrator by a court will provide some clarity and
consistency to the process.
***************