BILL ANALYSIS                                                                                                                                                                                                    Ó






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                                    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  








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            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  







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               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  







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               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.







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          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. 







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           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  







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             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  







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          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)








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          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  ****







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