BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 1423 (Mark Stone) - Prisoners: medical treatment
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|Version: April 20, 2015 |Policy Vote: PUB. S. 6 - 0 |
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|Urgency: No |Mandate: No |
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|Hearing Date: August 17, 2015 |Consultant: Jolie Onodera |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: This bill would create a process for appointing a
person to make health care decisions on behalf of a state prison
inmate who lacks the capacity to give informed consent or make
health care decisions, as specified.
Fiscal
Impact:
Potential one-time costs of about $100,000 (General Fund) to
the Department of Corrections and Rehabilitation (CDCR) to the
extent regulations are developed for this process.
Future minor net cost savings of about $20,000 (General Fund)
annually resulting from reduced CDCR administrative costs
formerly incurred to participate in probate court proceedings.
Potential future cost savings (General Fund) to the CCHCS
resulting from the revised process.
Minor, absorbable costs (General Fund) to the Office of
Administrative Hearings (OAH) to contract with CDCR for this
process.
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Background: Under existing law, in order to obtain authority for a
designated person to make health care decisions on behalf of a
patient, a petition must be filed in court pursuant to Section
3201 of the Probate Code. In the case of prison inmates, prison
officials are required to proceed through the superior court of
the county in which the inmate is housed whenever a medical
emergency arises or an episodic injury occurs that incapacitates
the inmate. This process can take up to several months, delaying
the ability of staff to both treat the inmate as well as inform
the inmate's family members due to federal privacy protections
under the Health Insurance Portability and Accountability Act
(HIPAA).
This bill seeks to provide additional benefits to
inmate-patients and their families by streamlining the existing
process for obtaining the necessary authority to provide
necessary treatment services to inmates in circumstances in
which the inmate lacks the capability to make such decisions
while at the same time preserving the inmate's due process
rights.
Proposed Law:
This bill would create a new process for appointing a
"surrogate decisionmaker" to make health care decisions on
behalf of a prison inmate, as follows:
Establishes a presumption that unless otherwise specified, an
adult housed in state prison is presumed to have the capacity
to give informed consent and make a health care decision, to
give or revoke an advance health care directive, and to
designate or disqualify a surrogate.
Permits a licensed physician or dentist to file a petition
with the Office of Administrative Hearings (OAH) to request
that an administrative law judge (ALJ) make a determination as
to an inmate patient's capacity to give informed consent or
make a health care decision, and request appointment of a
surrogate decisionmaker, if all of the following conditions
are satisfied:
o The licensed physician or dentist is treating a
patient who is an adult housed in state prison;
o The licensed physician or dentist is unable to obtain
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informed consent from the inmate patient because the
physician or dentist determines that the inmate patient
appears to lack capacity to give informed consent or make
a health care decision; and,
o There is no person with legal authority to provide
informed consent for, or make decisions concerning the
health care of, the inmate patient.
Requires the next of kin or a family member to be given
preference as a surrogate decisionmaker over other potential
surrogate decisionmakers unless those individuals are
unsuitable or unable to serve.
Specifies the requirements of the petition filed by a licensed
physician or dentist, must include various information
including the inmate patient's current physical and health
care condition and current mental health condition resulting
in the inmate patient's inability to understand the nature and
consequences of his or her need for care.
Requires the petition to be served on the inmate patient and
his or her counsel, and filed with the OAH on the same day as
it was served.
Requires the OAH to issue a notice appointing counsel, and at
the time the initial petition is filed, the inmate patient to
be provided with counsel and a written notice advising him or
her of specified due process rights.
Requires counsel for the inmate patient to have access to all
relevant medical and central file records for the inmate
patient.
Requires the inmate patient to be provided with a hearing
before an ALJ within 30 days of the date of filing the
petition, and to be given 14 days from the date of filing of
any petition to file a response to the petition, as specified.
Requires the response to be served to all parties who were
served with the initial petition and the attorney for the
petitioner.
Permits the inmate patient's physician or dentist to
administer a medical intervention that requires informed
consent prior to the date of the administrative hearing, in
the event of a health care emergency.
Specifies that, in either an initial or renewal proceeding,
the inmate patient has the right to contest the finding of an
ALJ authorizing a surrogate decisionmaker by filing a petition
for writ of administrative mandamus.
Permits, in either an initial or renewal proceeding, either
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party to file one motion for reconsideration per calendar year
in front of the ALJ following a determination as to an inmate
patient's capacity to give informed consent or make a health
care decision.
Permits annual renewals of existing orders appointing a
surrogate decisionmaker, as specified.
Requires a renewal hearing to be conducted prior to the
expiration of the current order, but not sooner than 10 days
after the petition is filed, at which time the inmate patient
shall be brought before an ALJ for a review of his or her
current medical and mental health condition.
Requires a renewal petition to be served on the inmate patient
and his or her counsel, and filed with the OAH on the same day
as it was served.
Requires the renewal petition to be reviewed by an ALJ, and to
include whether the inmate patient still requires a surrogate
decisionmaker and whether the inmate patient continues to lack
capacity to give informed consent or make a health care
decision.
Specifies that an inmate patient who has been determined to
lack capacity to give informed consent or make a health care
decision and for whom a surrogate decision maker has been
appointed still has the right to seek appropriate judicial
relief to review the determination or appointment by filing a
petition for writ of administrative mandamus and file a
petition for writ of habeas corpus in superior court regarding
the determination or appointment, or any treatment decision by
the surrogate decisionmaker.
Absolves a licensed physician or other health care provider
whose actions are in accordance with reasonable health care
standards, a surrogate decisionmaker, and an ALJ from
liability for monetary damages or administrative sanctions for
his or her decisions or actions consistent with the known and
documented desires of the inmate patient, or if unknown, the
best interests of the inmate patient.
Permits, if specified findings are made, the ALJ to appoint a
surrogate decisionmaker for health care for the inmate
patient. Prohibits an employee or contract staff of CDCR or
other peace officer, from being appointed surrogate
decisionmaker for health care for any inmate patient, as
specified.
Requires the ALJ's written decision and order appointing a
surrogate decisionmaker to be placed in the inmate patient's
health care record.
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Specifies that an order appointing a surrogate decisionmaker
be entered under this section is valid for one year and
requires that the expiration date be written on the order.
Requires that, if the inmate patient is moved, the sending
institution inform the receiving institution of the existence
of an order appointing a surrogate decisionmaker.
Provides that the Secretary of CDCR may adopt regulations as
necessary to carry out the purposes of this section.
Related
Legislation: SB 1412 (Nielsen) Chapter 759/2014 applies
procedures relative to persons who are incompetent to stand
trial (IST) to persons who may be mentally incompetent and face
revocation of probation, mandatory supervision, postrelease
community supervision (PRCS), or parole.
Staff
Comments: To the extent the CDCR develops regulations to
implement this new process, one-time costs of approximately
$100,000 could be incurred. The CDCR has indicated it
anticipates the provisions of this bill will result in future
minor net cost savings of about $20,000 annually in reduced
administrative costs associated with travel and staff time to
attend probate court proceedings. Similarly, the California
Correctional Health Care Services has indicated future cost
savings associated with this new process.
The Office of Administrative Hearings (OAH) has indicated likely
minor, absorbable costs to administer the program assuming the
number of cases being processed is not significant. The OAH has
indicated this would be a program administered through contract
with the CDCR with pro tem ALJs to perform the hearing services,
as well as contract with counsel to represent the inmates.
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