BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 955| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: SB 955 Author: Beall (D), et al. Amended: 4/26/16 Vote: 21 SEANATE HEALTH COMMITTEE: 7-2, 3/30/16 AYES: Hernandez, Hall, Mitchell, Monning, Pan, Roth, Wolk NOES: Nguyen, Nielsen SENATE PUBLIC SAFETY COMMITTEE: 5-2, 4/19/16 AYES: Hancock, Glazer, Leno, Liu, Monning NOES: Anderson, Stone SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/27/16 AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen SUBJECT: State hospital commitment: compassionate release SOURCE: Union of American Physicians and Dentists DIGEST: This bill requires the Director of the Department of State Hospitals to release a patient, as specified, from confinement, parole, or outpatient status if specified criteria are met for being terminally ill or permanently medically incapacitated and the conditions under which the patient would be released do not pose a threat to public safety. ANALYSIS: SB 955 Page 2 Existing law: 1) Requires a court to commit a person to a state hospital, public or private treatment facility, or place him or her on outpatient status if he or she is found to be not guilty by reason of insanity. 2) Requires the Director of the Department of State Hospitals (DSH) to notify the Board of Parole Hearings (BPH) within the Department of Corrections and Rehabilitation (CDCR), and requires DSH to discontinue treating a parolee, if a prisoner's severe mental health disorder is put into remission during the parole period and can be kept in remission. 3) Authorizes the release of a prisoner from state prison, known as "compassionate release," if the court finds that the prisoner is terminally ill with an incurable condition caused by an illness or disease that would result in death within six months or is permanently medically incapacitated, as determined by a physician employed by CDCR, and the prisoner's release does not pose a threat to public safety. This bill: 1) Extends compassionate release, which currently permits the release of state prisoners who are terminally ill or permanently medically incapacitated, to DSH patients who have been committed as a mentally disordered offender (MDO), were found not guilty by reason of insanity (NGI), or were found incompetent to stand trial (IST) or be adjudicated to punishment. Gives the court discretion to dismiss a DSH patient's commitment for compassionate release when specified criteria are met. 2) Requires a physician employed by DSH to notify the DSH medical director and the patient advocate when a prognosis is made of a patient being eligible for compassionate release. SB 955 Page 3 Requires the medical director to notify the DSH Director if he or she concurs with the prognosis. Requires the DSH Director or a designee to notify the patient of the discharge procedures and to obtain the patient's consent for discharge. Requires the DSH Director or designee to arrange for a patient to designate a family member, other outside agent, an emergency contact, or the patient advocate to be notified of the patient's medical condition, prognosis, and release procedures, and to provide those individuals with updated information throughout the release process. 3) Allows a patient or his or her family member or designee to contact the DSH medical director or director of the state hospital where the patient is located, or the DSH Director, to request consideration for a recommendation from the DSH Director to the court that the patient's commitment be dismissed for compassionate release. 4) Requires the court to hold a noticed hearing within 10 days of receiving a recommendation to consider whether a patient's commitment should be dismissed and the patient released. Requires a recommendation to the court to include at least the following: one medical evaluation, a discharge plan, a post-release plan for the relocation and treatment of the patient, and the findings by the court that the patient's release does not pose a threat to public safety. 5) Requires the hearing to be held before the same court that originally committed the patient, if possible. If the patient is an MDO on parole and was committed for treatment by BPH, the matter shall be heard by the court that committed the patient to the state prison for the underlying conviction, if possible. 6) Requires the court to order the DSH medical director to send copies of all medical records reviewed in developing the recommendation to all of the following parties: a) The district attorney of the county from which the SB 955 Page 4 patient was committed. b) In the case of an MDO on parole, the district attorney of the county from which the patient was committed to the state prison. c) The public defender of the county from which the patient was committed, or the patient's private attorney, if available. d) In the case of an 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. e) If the patient is an MDO on parole, the BPH. f) 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. 7) Requires the DSH Director to release a patient from confinement, parole, or outpatient status if a physician employed by DSH makes a determination, and the court agrees, that the patient meets the following criteria: a) The patient is terminally ill with an incurable condition caused by an illness or disease that would likely produce death within six months; or b) The patient is permanently medically incapacitated and requires 24-hour total care, and the medical director responsible for the patient's care and the DSH Director both certify that the patient is incapable of receiving mental health treatment. SB 955 Page 5 c) The release conditions in a) or b) above under which the patient would be released or receive treatment do not pose a threat to public safety. 8) Prohibits a patient from being released unless the discharge plan verifies placement for the patient upon release. 9) Requires DSH to release a patient, if the court, pursuant to 4) above, approves the recommendation for dismissal and release, 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. 10)Requires the DSH Director or a designee to ensure that upon release the patient or the patient's representative has the following in his or her possession: a discharge plan, discharge medical summary, medical records, identification, all necessary medications, and any property belonging to the patient. Requires any additional records to be sent to the patient's forwarding address after discharge. 11)Provides that these provisions do not preclude a patient who is granted compassionate release from being committed to a state hospital under the same commitment or another commitment. Comments 1)Author's statement. According to the author, current law provides for a compassionate release program for state prison inmates. The program allows inmates who have six months left to live, including those receiving treatment at a state hospital, to be discharged to spend their remaining time with family. However, other DSH patients, such as those who are NGI SB 955 Page 6 or IST, are not eligible for such compassionate release. This creates a situation in which a patient can be in a coma and unable to receive treatment but cannot be released to a more palliative care setting closer to their loved ones. These patients also keep state hospital beds from being used to treat patients that could benefit from treatment. Additionally, patients released from DSH facilities are eligible for federal matching funds for their treatment. This bill creates a compassionate release program for all DSH patients regardless of commitment reason. Patients would be required to meet specific criteria, and petitions for compassionate release would be court-approved. This bill will provide a humane, less restrictive environment for terminally ill and medically incapacitated patients and free up much-needed state hospital beds for patients who are currently waiting for placement and could benefit from treatment. 2)DSH. DSH oversees five state hospitals (Atascadero, Coalinga, Metropolitan [in Los Angeles County], Napa, and Patton) and three psychiatric programs located in state prisons. Through an interagency agreement with the CDCR, DSH also treats inmates at prisons in Vacaville, Salinas Valley, and Stockton. According to DSH's Web site, as of 2015, DSH serves nearly 7,000 patients who are mandated for treatment by either a criminal or civil court judge. These patients are sent to DSH through the criminal court system and have committed or have been accused of committing crimes linked to their mental illness. (According to a 2015 Legislative Analyst's Office [LAO] budget report, 92% of current DSH patients are forensic commitments.) In addition to forensic commitments, DSH treats patients who have been classified by a judge or jury as sexually violent predators. They are committed to DSH for treatment until a judge deems they are no longer a threat to the community. The remainder of DSH's population has been committed in civil court for being a danger to themselves or others. These patients are commonly referred to as Lanterman-Petris-Short (LPS) commitments. DSH also works with city and county government on a variety of public safety issues. Several county mental health departments purchase beds at state hospitals for LPS patients. According to the LAO report, DSH's population has increased over recent years, with a growth rate of about 14% since SB 955 Page 7 Fiscal Year 2010-11. Even though the state provided additional resources to DSH, and the department was able to add nearly 250 additional beds, DSH still had a patient waitlist of nearly 550 individuals as of January 2015. According to the LAO, having such a long waitlist for placement in a DSH facility delays access to care, and poses other legal issues. The federal Substance Abuse and Mental Health Services Administration's Web site states that adults who had a mental illness in the past year have higher rates of certain physical illnesses than those not experiencing mental illness, including increased rates of high blood pressure, asthma, diabetes, heart disease, and stroke. The National Institute of Health's Web site states that the lifespan of people with severe mental illness is shorter compared to the general population. This excess mortality is mainly due to physical illness as a result of individual lifestyle choices, side effects of psychotropic medications, and disparities in health care access, utilization, and provision, which contribute to poor physical health outcomes. 3)Concerns over the aging and infirm. A May 2015 article published on The Marshall Project's Web site states that the costs of holding elderly and infirm inmates, who often have multiple health problems, is extraordinarily high and getting higher, and prison officials don't or can't adequately care for them. The article cites interviews with inmates who state they have had heart attacks, surgeries, rely on multiple daily medications, and have a number of chronic diseases, some of which require high-cost medications. The Office of the Inspector General argues that prisons are not only caring for an expensive population but also one that will more than likely not commit more crimes if they were to be released, given their medical conditions. Also cited in the article are cases in which inmates can no longer perform daily activities on their own; are unable to navigate prison quarters; and are forced to leave wheelchairs outside of their small cells. FISCAL EFFECT: Appropriation: No Fiscal Com.:Yes Local: No SB 955 Page 8 According to the Senate Appropriations Committee: 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. 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. 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. SB 955 Page 9 * Trial Court Trust Fund SUPPORT: (Verified5/27/16) Union of American Physicians and Dentists (source) American Civil Liberties Union of California American Federation of State, County and Municipal Employees, AFL-CIO American Federation of State, County and Municipal Employees, Local 2620 California Association of Psychiatric Technicians California Psychiatric Association Disability Rights California Legal Services for Prisoners with Children National Association of Social Workers, California Chapter OPPOSITION: (Verified5/27/16) California State Sheriffs' Association ARGUMENTS IN SUPPORT: Supporters argue that keeping terminally ill or permanently medically incapacitated patients in state hospitals prevents health care workers from providing assistance to patients who could benefit from treatment. Supporters state that patients that meet the criteria for compassionate release do not pose a threat to public safety, can no longer benefit from mental health treatment, and should live out the rest of their lives in a less restrictive environment. Disability Rights California states that compassionate release allows a person to live out their final days in the community, and provisions in this bill, such as patient consent and an adequate discharge plan, are critical. ARGUMENTS IN OPPOSITION: The California State Sheriffs' SB 955 Page 10 Association (CSSA) argues that people who are committed to the state hospital from the criminal justice system are dangerous and in need of significant treatment. CSSA states that the desire to see such a person enjoy a compassionate release because he or she is near the end of life or meets a definition regarding his or her medical condition should not trump the reason the person was committed for treatment. CSSA argues that mechanisms exist to release patients who no longer need care and that this bill goes beyond that notion. Prepared by:Reyes Diaz / HEALTH / (916) 651-4111 5/28/16 16:45:57 **** END ****