BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session SB 955 (Beall) - State hospital commitment: compassionate release ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: April 26, 2016 |Policy Vote: HEALTH 7 - 2, PUB. | | | S. 5 - 2 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: No | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: May 9, 2016 |Consultant: Jolie Onodera | | | | ----------------------------------------------------------------- This bill meets the criteria for referral to the Suspense File. Bill Summary: SB 955 would establish a process for specified release from the Department of State Hospitals (DSH) for a person who has been committed to the DSH and meets the criteria of being terminally ill or permanently medically incapacitated, as specified, and the conditions under which the patient would be released or receive treatment do not pose a threat to public safety. This bill would restrict eligibility for release to DSH patients committed as incompetent to stand trial (IST), not guilty by reason of insanity (NGI), or mentally disordered offenders (MDOs). Fiscal Impact: DSH new process : One-time costs potentially in excess of $150,000 (General Fund) to the DSH to develop internal policies, training, and regulations for the new process. SB 955 (Beall) Page 1 of ? Ongoing administrative costs potentially in excess of $200,000 (General Fund) annually to evaluate patients for eligibility, respond to patient and family requests for consideration of release, and other activities related to patient release. Board of Parole Hearings (BPH) : Negligible impact to receive notification and records of MDO releases from the DSH. Courts : Potentially significant increase in state costs (General Fund*) for additional hearings for consideration of potential dismissal of commitment from DSH. Medi-Cal : Potential increase in Medi-Cal eligibility (Federal Funds/General Fund) for treatment services to the extent a patient is released who was previously ineligible for federal reimbursement for services while in custody. Medi-Cal generally provides 50 percent federal reimbursement for such costs. DSH commitment releases : While the number of DSH patients potentially eligible to be released is unknown, to the extent even five DSH commitments are released will result in potential future cost savings (General Fund) to DSH for custody, treatment, and services likely in the low millions of dollars (General Fund) annually, given these patients likely require the most intensive medical care. *Trial Court Trust Fund Background: Existing law provides that if the Secretary of the Department of Corrections and Rehabilitation (CDCR) or the BPH or both determine that a prisoner is either: Terminally ill with an incurable condition caused by an illness or disease that would produce death within six months, as determined by a physician employed by the department; or The prisoner is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour total care, including, but not limited to, coma, persistent vegetative state, brain death, ventilator-dependency, loss of control of muscular or neurological function, and that SB 955 (Beall) Page 2 of ? incapacitation did not exist at the time of the original sentencing. And in addition to the above criteria, that the conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety, the Secretary of the CDCR or the BPH may recommend to the court that the prisoner's sentence be recalled and that the court shall have the discretion to resentence or recall if the court finds that the facts described above exist. (Penal Code §§ 1170 (e)(1) and (e)(2).) This bill seeks to extend a similar process of release from confinement, parole, or outpatient status to specified patients committed to the DSH. Proposed Law: This bill would establish a process for the consideration of release from confinement, parole, or outpatient status from the DSH, permitting the release of persons determined to be terminally ill or permanently medically incapacitated, and not posing a threat to public safety, to apply in cases where a patient has been committed to the DSH as a MDO, NGI, or IST. Specifically, this bill: Provides that should a DSH physician determine that a patient meets the criteria established for compassionate release to notify the medical director and the patient advocate of the prognosis. If the medical director concurs with the diagnosis, he or she shall immediately notify the Director of State Hospitals. Within 72 hours of receiving notification, the director or the director's designee shall notify the patient of the discharge procedures and obtain the patient's consent for discharge. Provides that a DSH patient or his or her family member or designee may contact the medical director or director at the state hospital where the patient is located or the Director of State Hospitals to request consideration for a recommendation from the director to the court that the patient's commitment be dismissed for compassionate release and the patient SB 955 (Beall) Page 3 of ? released from the department facility. Upon receipt of a notification or request as described above, authorizes DSH to recommend to the court that the patient's commitment be dismissed for compassionate release and the patient released from the department facility. Provides that the court shall have the discretion to dismiss the commitment for compassionate release and release the patient if the court finds that the facts described in (1) and (2), or (2) and (3), exist: (1) The patient is terminally ill with an incurable condition caused by an illness or disease that would likely produce death within six months, as determined by a physician employed by the department. (2) The conditions under which the patient would be released or receive treatment do not pose a threat to public safety. (3) The patient is permanently medically incapacitated and requires 24-hour total care, and the medical director responsible for the patient's care and the Director of State Hospitals both certify that the patient is incapable of receiving mental health treatment. Requires the court to hold a noticed hearing within 10 days of receipt of a recommendation for release by the director to consider whether the patient's commitment should be dismissed and the patient released. Requires the recommendation for dismissal submitted to the court to include at least one medical evaluation, a discharge plan, a postrelease plan for the relocation and treatment of the patient, and the physician's and medical director's determination that the patient meets the specified criteria. Requires the court to order the medical director to send copies of all medical records reviewed in developing the recommendation to all of the following parties: (1) The district attorney of the county from which the patient was committed. (2) In the case of a MDO on parole, the district attorney of the county from which the patient was committed to the state SB 955 (Beall) Page 4 of ? prison. (3) The public defender of the county from which the patient was committed, or the patient's private attorney, if one is available. (4) In the case of a MDO on parole, the public defender of the county from which the patient was committed to the state prison, if one is available, or the patient's private attorney, if applicable. (5) If the patient is a MDO on parole, the BPH. (6) If the patient is on mandatory supervision or postrelease community supervision and has been found incompetent to be adjudged to punishment, the county entity designated to supervise him or her. Specifies venue for court hearings. Requires a patient's commitment to be dismissed and the patient to be released by the DSH within 72 hours of receipt of the court's order, unless a longer time period is requested by the director and approved by the court. Requires the DSH director or his or her designee to ensure that upon release, the patient has each of the following in his or her possession, or the possession of the patient's representative: A discharge plan, discharge medical summary, medical records, identification, all necessary medications, any property belonging to the patient. Requires that after discharge, any additional records shall be sent to the patient's forwarding address. Authorizes the DSH to adopt regulations to implement this section, as specified. Provides that nothing in the bill precludes a patient who is released pursuant to the bill's provisions from being committed to a state hospital under the same commitment or another commitment. Prior Legislation: SB 1462 (Leno) Chapter 837/2012 provided for the medical parole or compassionate release of persons incarcerated in county jails. SB 955 (Beall) Page 5 of ? SB 1399 (Leno) Chapter 495/2010 provided for the medical parole of permanently medically incapacitated state prison inmates. AB 29 (Villaraigosa) Chapter 751/1997 provided for the compassionate release of state prison inmates with an incurable condition caused by an illness or disease that would produce death within six months. Staff Comments: The DSH will likely incur one-time costs potentially in excess of $150,000 to develop internal policies, provide training, and adopt regulations for this process. Ongoing operational costs as required by the provisions of the bill could additionally result in workload that is not absorbable within existing resources. The BPH has indicated negligible fiscal impact associated with this measure, as the bill just requires the DSH to notify the BPH upon the release of an MDO and send copies of all medical records reviewed in developing the recommendation to the BPH. Recommended Amendments: The use of the term "compassionate release" in this bill may cause confusion with existing provisions of law. The release of a prison or jail inmate diagnosed with a terminal illness is generally referred to as "compassionate release," and existing law specifically refers to this term in Government Code § 26605.6 as it relates to jail prisoners. The release of a prison or jail inmate determined to be in a state of permanent medical incapacitation has generally been referred to as "medical parole," although that term would not be applicable for DSH patients. For clarity, the author may wish to consider an amendment to define the new process, as follows: "For purposes of this section, 'compassionate release' means release of patients who are either terminally ill, or incapacitated and untreatable, where the other criteria for release are met." SB 955 (Beall) Page 6 of ? -- END --