BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 1423| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 1423 Author: Mark Stone (D) Amended: 4/20/15 in Assembly Vote: 21 SENATE PUBLIC SAFETY COMMITTEE: 6-0, 7/7/15 AYES: Hancock, Glazer, Leno, Liu, Monning, Stone NO VOTE RECORDED: Anderson SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/27/15 AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen ASSEMBLY FLOOR: 74-0, 5/22/15 (Consent) - See last page for vote SUBJECT: Prisoners: medical treatment SOURCE: Author DIGEST: This bill creates a new process for appointing a person to make medical care decisions on behalf of a prison inmate who is not competent to make such decisions, as specified. ANALYSIS: Existing law: 1)Specifies that a petition may be filed to determine that a patient has the capacity to make a healthcare decision AB 1423 Page 2 concerning an existing or continuing condition. A petition may also be filed to determine that a patient lacks the capacity to make a healthcare decision concerning specified treatment for an existing or continuing condition, and further for an order authorizing a designated person to make a healthcare decision on behalf of the patient. (Probate Code § 3201.) 2)Provides, in Probate Code section 3202, that a petition to determine capacity to make healthcare decisions may be filed in the superior court, as specified. 3)Specifies, in Probate Code section 3203, that certain, listed individuals, may file a petition to determine whether a patient has capacity to make healthcare decisions. 4)Specifies, in Probate Code section 3204, that the contents of the petition should state or set forth, by a medical declaration attached to the petition, the following: a) The condition of the patient's health that requires treatment; b) The recommended healthcare that is considered to be medically appropriate; c) The threat to the patient's condition if authorization for the recommended healthcare is delayed or denied by the court; d) The predictable or probable outcome of the recommended healthcare; e) The medically available alternatives, if any, to the recommended healthcare; f) The efforts made to obtain consent from the patient; g) If the petition is filed by a person on behalf of a healthcare institution, the name of the person to be designated to give consent to the recommended healthcare on behalf of the patient; h) The deficit or deficits in the patient's mental AB 1423 Page 3 functions that are impaired, and an identification of a link between the deficit or deficits and the patient's inability to respond knowingly and intelligently to queries about the recommended healthcare or inability to participate in a decision about the recommended healthcare by means of a rational thought process; and, i) The names and addresses, so far as they are known to the petitioner, of the persons specified. 5)Provides, upon the filing of the petition, the court shall determine the name of the attorney the patient has retained to represent the patient in the proceeding under this part or the name of the attorney the patient plans to retain for that purpose. If the patient has not retained an attorney and does not plan to retain one, the court shall appoint the public defender or private counsel to consult with and represent the patient at the hearing on the petition and, if such appointment is made. (Probate Code § 3205.) 6)Provides specified notification procedures for a hearing on capacity to make healthcare decisions. (Probate Code § 3206.) 7)States, in Probate Code section 3208, that, except as specified, the court may issue an order authorizing the recommended healthcare for the patient, and designating a person to give consent to the recommended healthcare on behalf of the patient, if the court determines from the evidence: a) The existing or continuing condition of the patient's health requires the recommended healthcare; b) If untreated, there is a probability that the condition will become life-endangering or result in a serious threat to the physical or mental health of the patient; c) The patient is unable to consent to the recommended healthcare; d) In determining whether the patient's mental functioning is so severely impaired that the patient lacks the capacity to make any healthcare decision, the court may take into consideration the frequency, severity, and duration of AB 1423 Page 4 periods of impairment; e) The court may make an order authorizing withholding or withdrawing artificial nutrition and hydration, and all other forms of healthcare, and designating a person to give or withhold consent to the recommended healthcare on behalf of the patient, if the court determines from the evidence all of the following: i) The recommended healthcare is in accordance with the patient's best interest, taking into consideration the patient's personal values to the extent known to the petitioner. ii) The patient is unable to consent to the recommended healthcare. This bill: 1)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 decision maker, if all of the following conditions are satisfied: a) The licensed physician or dentist is treating a patient who is an adult housed in state prison; b) The licensed physician or dentist is unable to obtain 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, c) There is no person with legal authority to provide informed consent for, or make decisions concerning the health care of, the inmate patient. 2)Requires the next of kin or a family member to be given preference as a surrogate decision maker over other potential surrogate decision makers unless those individuals are unsuitable or unable to serve. AB 1423 Page 5 3)Specifies the requirements of the petition filed by a licensed physician or dentist. 4)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. 5)Requires the OAH to issue a notice appointing counsel. 6)Requires, 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 his or her rights, as specified. 7)Prohibits counsel for the inmate patient from having access to materials unrelated to medical treatment located in the confidential section of the inmate patient's central file. 8) Requires counsel for the inmate patient to have access to all health care appeals filed by the inmate patient and responses to those appeals, and, to the extent available, any habeas corpus petitions or health care related litigation filed by, or on behalf of, the inmate patient. 9) Requires the inmate patient to be provided with a hearing before an ALJ within 30 days of the date of filing the petition, unless counsel for the inmate patient agrees to extend the date of the hearing. 10)Requires the inmate patient, or his or her counsel, to be given 14 days from the date of filing of any petition to file a response to the petition, unless a shorter time for the hearing is sought by the licensed physician or dentist and ordered by the ALJ, in which case the judge shall set the time for filing a response. 11)Requires the response to be served to all parties who were served with the initial petition and the attorney for the petitioner. 12)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. AB 1423 Page 6 13)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 decision maker by filing a petition for writ of administrative mandamus. 14)Permits, in either an initial or renewal proceeding, either 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. The motion may seek to review the decision for the necessity of a surrogate decision maker, the individual appointed under the order, or both. And, prohibits the motion for reconsideration from requiring formal rehearing unless ordered by the ALJ following submission of the motion, or upon the granting of a request for formal rehearing by any party to the action based on a showing of good cause. 15)Permits annual renewals of existing orders appointing a surrogate decision maker, as specified. 16)Requires the current physician, dentist, or previous surrogate decision maker to file a renewal petition in order to renew an existing order appointing a surrogate decision maker. 17)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. 18)Requires the renewal petition to be reviewed by an ALJ, and to include whether the inmate patient still requires a surrogate decision maker and whether the inmate patient continues to lack capacity to give informed consent or make a health care decision. 19)Specifies that a licensed physician or dentist who submits a renewal petition is not required to obtain a court order prior to administering care that requires informed consent. 20)Permits, if certain findings are made, the ALJ to appoint a AB 1423 Page 7 surrogate decision maker for health care for the inmate patient. 21)Prohibits an employee or contract staff of California Department of Corrections and Rehabilitation (CDCR) or other peace officer, from being appointed surrogate decision maker for health care for any inmate patient unless either of the following conditions apply: a) The individual is a family member or relative of the inmate patient and will, as determined by the ALJ, act in the inmate patient's best interests. b) The individual is a health care staff member in a managerial position and does not provide direct care to the inmate patient, as specified. 22)Requires the ALJ's written decision and order appointing a surrogate decision maker to be placed in the inmate patient's health care record. Background CDCR prison census data indicates there is a growing population of elderly inmates, a population that, as the author notes, has increasingly complicated and acute medical conditions. The existing conservatorship process presents a number of hurdles for prison medical staff attempting to conserve inmates. This process requires that staff go 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 an inmate. Going through this process takes six weeks to six months. During that period, while the inmate is incapacitated, prison officials are unable to update the inmate's family members as to his or her condition because of the federal Health Insurance Portability and Accountability Act (HIPAA). HIPAA protects patient confidentiality through strict restrictions on dissemination of information. Due to the fact that these patients often do not have advanced healthcare directives, healthcare information cannot be dissemination until a court issues an order. This bill creates a new process with existing procedures in the AB 1423 Page 8 prison system. That is, under existing practices administrative law judges already hold hearings in California State Prisons, called Keyea hearings. Permitting healthcare decisions to be heard at these administrative proceedings would arguably shorten the existing wait times, which will benefit inmate-patients and their families. [NOTE: See Senate Public Safety Committee analysis for a full discussion] FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: No According to the Senate Appropriations Committee, the fiscal impact includes: Potential one-time costs of about $100,000 (General Fund) to 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 California Correctional Health Care Services resulting from the revised process. Minor, absorbable costs (General Fund) to the Office of Administrative Hearings (OAH) to contract with CDCR for this process. SUPPORT: (Verified8/28/15) California Association of Public Administrators, Public Guardians, and Public Conservators California Correctional Health Care Services California Public Defenders Association Prison Law Office OPPOSITION: (Verified8/28/15) AB 1423 Page 9 None received ARGUMENTS IN SUPPORT: According to California Correctional Health Care Services: Currently state prisoners over the age of 50 are the fastest growing segment of the prison population. As these prisoners age, many lose the capacity to make medical determinations on their own, due to dementia, strokes, and other debilitating medical conditions. Under existing law, prison officials are required to go through the process under Probate Code Section 3200, which requires a Superior court hearing to appoint an individual responsible for making medical determinations for the prisoner. The bill is a common sense measure that will provide added benefit to the inmate population by speeding up the process for obtaining the necessary authority to provide treatment services in cases where the inmate lacks decision making capability. ASSEMBLY FLOOR: 74-0, 5/22/15 AYES: Achadjian, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Wilk, Williams, Wood, Atkins NO VOTE RECORDED: Alejo, Jones, O'Donnell, Olsen, Waldron, Weber Prepared by:Jessica Devencenzi / PUB. S. / 8/30/15 19:12:10 **** END **** AB 1423 Page 10