BILL ANALYSIS Ó
SB 955
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Date of Hearing: June 21, 2016
ASSEMBLY COMMITTEE ON HEALTH
Jim Wood, Chair
SB
955 (Beall) - As Amended April 26, 2016
SENATE VOTE: 24-13
SUBJECT: State hospital commitment: compassionate release.
SUMMARY: Establishes a compassionate release process for a
person who has been committed to the Department of State
Hospitals (DSH) as a mentally disordered offender, has been
found not guilty by reason of insanity (NGI), or has been found
incompetent to stand trial or be adjudicated to punishment
(IST), but is now terminally ill, or permanently medically
incapacitated, as specified. Specifically, this bill:
1)Requires a physician employed by DSH, who determines that a
patient is terminally ill or medically incapacitated, is not a
threat to public safety, and who meets specified criteria to
notify the medical director and the patient advocate of the
prognosis. Requires, if the medical director concurs with the
diagnosis, to immediately notify the Director of DSH.
2)Requires, within 72 hours of receiving notification, the
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Director or their designee to notify the patient of the
discharge procedures and obtain the patient's consent for
discharge.
3)Requires the Director or their designee to arrange for the
patient to designate a family member or other outside agent to
be notified as to the patient's medical condition, prognosis,
and compassionate release procedures. Requires the Director
or their designee to contact any emergency contact listed, or
the patient advocate if no contact is designated or provided.
4)Requires the Director or their designee to provide the patient
and his or her family member, agent, emergency contact, or
patient advocate with updated information throughout the
release process with regard to the patient's medical condition
and the status of the patient's release proceedings, including
the discharge plan. Prohibits a patient from being released
unless the discharge plan verifies placement for the patient
upon release.
5)Permits the patient, or his or her family member or designee,
to contact the Director as to where the patient is located or
the Director of DSH to request consideration for a
recommendation that the patient's commitment be dismissed for
compassionate release and the patient released from the
department facility.
6)Permits, upon receipt of a notification or request pursuant to
paragraph 1), 3), or 5) above, the Director of DSH to
recommend to the court that the patient's commitment be
dismissed for compassionate release and the patient released
from the department facility.
7)Gives the court the discretion to dismiss the commitment for
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compassionate release and release the patient if the court
finds either of the following:
a) The patient is: i) 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; and, ii) the
conditions under which the patient would be released or
receive treatment do not pose a threat to public safety,
or;
b) The patient is: i) permanently medically incapacitated
and requires 24-hour total care, and the medical director
responsible for the patient's care and the Director both
certify that the patient is incapable of receiving mental
health treatment; and, ii) the conditions under which the
patient would be released or receive treatment do not pose
a threat to public safety.
8)Requires the court to hold a noticed hearing to consider
whether the patient's commitment should be dismissed and the
patient released within 10 days of receipt of a recommendation
for release.
9)Requires a recommendation for dismissal submitted to the court
to include at least one medical evaluation, a discharge plan,
and a post release plan for the relocation and treatment of
the patient, along with the physician's and medical director's
determination that the patient meets all of the compassionate
release criteria in 7) above.
10)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:
a) The district attorney of the county from which the
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patient was committed;
b) In the case of a mentally disordered offender 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 one is
available;
d) In the case of a mentally disordered offender 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 a mentally disordered offender on
parole, the Board of Parole Hearings; and,
f) If the patient is on mandatory supervision or post
release community supervision and has been found
incompetent to be adjudged to punishment, the county entity
designated to supervise him or her.
11)Requires the matter to be heard before the same court that
originally committed the patient, if possible. Requires, if
the patient is a mentally disordered offender on parole and
was committed for treatment by the Board of Parole Hearings
(BPH), the matter to be heard by the court that committed the
patient to the state prison for the underlying conviction, if
possible.
12)Requires, if the court approves the recommendation for
dismissal and release, the patient's commitment to be
dismissed and the patient to be released by the department
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.
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13)Requires the 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.
14)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.
15)Authorizes the Director to adopt regulations to implement the
provisions of this bill and exempts them from the
Administrative Procedure Act (APA).
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 NGI.
2)Requires the Director of DSH to notify the 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.
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FISCAL EFFECT: According to the Senate Appropriations
Committee:
1)One-time costs potentially in excess of $150,000 (General Fund
(GF)) to DSH to develop internal policies, training, and
regulations for the new process. Ongoing administrative costs
potentially in excess of $200,000 (GF) annually to evaluate
patients for eligibility, respond to patient and family
requests for consideration of release, and other activities
related to patient release.
2)Negligible impact to receive notification and records of
mentally disordered offender releases from the DSH.
3)Potentially significant increase in state costs (GF/Trial
Court Trust Fund) for additional hearings for consideration of
potential dismissal of commitment from DSH.
4)Potential increase in Medi-Cal eligibility (federal funds/GF)
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%
federal reimbursement for such costs.
5)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 (GF)
to DSH for custody, treatment, and services likely in the low
millions of dollars (GF) annually, given these patients likely
require the most intensive medical care.
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COMMENTS:
1)PURPOSE OF THIS BILL. 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 in DSH, to be
discharged to spend their remaining time with family.
However, other DSH patients - such as NGI or IST patients -
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.
The author states that this situation also keeps state
hospital beds from being used to treat patients that could
benefit from treatment. Currently, state hospitals have a
waiting list of more than 400 people. These individuals are
languishing in county jails, state prisons, and hospitals,
while patients who are unable to participate in treatment
because they are terminally ill or permanently incapacitated
remain in state hospitals because DSH has no compassionate
release program.
2)BACKGROUND.
a) DSH. DSH oversees five state hospitals, Atascadero,
Coalinga, Metropolitan, Napa, and Patton, and three
psychiatric programs located in state prisons. Through an
interagency agreement with the CDCR, DSH also treats
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inmates at prisons in Vacaville, Salinas Valley, and
Stockton. DSH was established in 2012 after the Department
of Mental Health (DMH) was eliminated and responsibility
for delivering inpatient behavioral health services to
patients at state hospitals was transferred from DMH to
DSH. DSH currently treats approximately 6,600 patients at
its eight facilities and the average length of stay is less
than one year. Patients at the state hospitals receive
24-hour care (including therapy and medication) and fall
into one of two categories: civil commitments or forensic
commitments. Civil commitments are generally referred to
the state hospitals for treatment by counties. This is
because they have a mental illness that makes them a danger
to themselves or others or makes them gravely disabled.
Forensic commitments are typically committed by the courts
and include state prison inmates referred by CDCR as well
as individuals classified as IST, NGI, or mentally
disordered offenders (individuals referred by the BPH to
DSH as a condition of state parole), or sexually violent
predators. The three classifications of offender addressed
by this bill include the following:
i) Not Guilty by Reason of Insanity - Determined by a
court that the defendant committed a crime and was insane
at the time the crime was committed;
ii) Incompetent to Stand Trial - Determined by court
that defendant cannot participate in trial because the
defendant is not able to understand the nature of the
criminal proceedings or assist counsel in the conduct of
a defense. This includes individuals whose incompetence
is due to developmental disabilities; and,
iii) Mentally Disordered Offenders - Certain CDCR inmates
referred for required mental health treatment as a
condition of parole, and beyond parole under specified
circumstances.
Currently, 92% of state hospital patients are forensic
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commitments that are committed to DSH for treatment until a
judge deems they are no longer a threat to the community.
The remainder of the 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's population has increased over recent years, with a
growth rate of about 14% since 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 439 individuals as of
January 2016, resulting in delays in access to care, and
creating other legal issues. 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.
The federal Substance Abuse and Mental Health Services
Administration's Website 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 Website 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.
b) CDCR's Medical Parole & Recall of Sentence
(Compassionate Release). SB 1399 (Leno), Chapter 405,
Statutes of 2010, established a medical parole process for
very ill prisoners before they reach their normal release
dates. In February 2014, a federal three-judge court
ordered California officials to expand the medical parole
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program as part of an effort to reduce prison overcrowding.
Under the expanded medical parole program, medical staff
assess prisoners who are medically incapacitated to
determine if and how much help is needed by the prisoner
regarding mobility in bed, transferring to a chair or
standing position, toileting, and feeding. A primary care
physician who believes the prisoner meets specified parole
criteria then makes a recommendation to the Chief Medical
Executive at the prison. The referral must then be
approved by a Classification and Parole Representative at
the prison, the prison warden, and finally the CDCR
Classification Services Unit, before being reviewed by a
BPH panel. The first medical parole hearings under the
expanded criteria took place in August 2014.
In limited circumstances, the sentencing court can change
the sentence after the prisoner has begun to serve it, if
more than four months have passed and if CDCR or the BPH
asks it to recall a prisoner's sentence and re-sentence the
prisoner to a shorter term. The most common use of this
procedure is to get compassionate release for prisoners who
are terminally ill with an incurable condition that is
expected to cause death within six months and do not pose a
threat to public safety. Compassionate release is not
available for prisoners who are sentenced to death or life
without the possibility of parole. A request for
compassionate release can be made by the prisoner or the
prisoner's family or advocate, or if prison medical staff
determines that a prisoner has six months or less to live.
After a primary care physician determines that an inmate
meets specified medical criteria, the prison's chief
medical executive, a Classification and Parole
Representative at the prison, the prison warden, the CDCR
Classification Services Unit, and the CDCR Secretary must
sign off. CDCR requires this process to take place within
30 days.
c) Aging and Sick Inmates. A May 2015 article published on
The Marshall Project's Website states that the costs of
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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.
3)SUPPORT. The Union of American Physicians and Dentists
(UAPD), sponsor of the bill, the American Federation of State,
County and Municipal Employees, AFL-CIO, states that these
patients do not pose a threat to public safety and can no
longer benefit from mental health treatment. These patients
are often permanently and medically incapacitated patients and
otherwise terminally ill patients. By releasing these
patients who fir the compassionate release criteria, more
resources are freed for DSH to treat the growing list of
patients waiting to be treated; patients who can actually and
truly benefit from treatment at DSH. In authorizing DSH to
petition for compassionate release, this bill will allow a
terminally ill patient to live out the rest of their life in a
less restrictive environment.
Disability Rights California (DRC) states in support that
compassionate release, when consented to by the patient and
with an adequate discharge plan, allows the person to live out
their final days in the community. Not all patients have
community or family support so ensuring the patient consents,
has adequate community support, has patients' rights advocate
involvement, and is not removed from familiar surroundings
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against his or her will is critical. This bill would
establish compassionate release provisions for a person
committed to a state hospital if the patient meets the
criteria established by the bill for release from the state
hospital.
DRC further states that under existing law, if a defendant is
found to be NGI, the court is required to commit the person to
a state hospital, public or private treatment facility, or
place him or her on outpatient status. Existing law
authorizes the release of a prisoner from state prison if the
court finds that the prisoner is terminally ill with an
incurable condition that would produce death within six months
and conditions under which the prisoner would be released do
not pose a threat to public safety.
4)OPPOSITION. The California State Sheriffs' Association (CSSA)
writes in opposition to the bill that people who are committed
to a state hospital from the criminal justice system are
dangerous and in need of significant treatment. 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.
The California District Attorneys Association states in
opposition that this bill fails to address several important
issues that warrant consideration after a person has been
discharged. Most important of these issues is the level of
supervision granted to these individuals following release.
While they may have terminal illnesses, not all of them will
be physically incapacitated. Given the mental health issues
experienced by this cohort of offenders, it would be important
to ensure that they remain subject to significant supervision
while in the community.
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5)RELATED LEGISLATION. SB 6 (Galgiani) would exempt from
medical parole eligibility and compassionate release
eligibility a prisoner who was convicted of the first degree
murder of a peace officer or a person who had been a peace
officer, as provided. SB 6 is pending in the Assembly Public
Safety Committee.
6)PREVIOUS LEGISLATION.
a) SB 1462 (Leno), Chapter 837 Statutes of 2012, authorizes
a sheriff to release a prisoner from a county jail after
conferring with a jail physician if the sheriff determines
the prisoner would not reasonably pose a threat to public
safety and the prisoner is deemed to have a life expectancy
of six months or less. Authorizes the court, at the
request of a sheriff, to grant medical probation to any
prisoner sentenced to a county jail who is physically
incapacitated, as specified, if that incapacitation did not
exist at the time of sentencing, or to a prisoner who
requires acute long-term inpatient rehabilitation services.
Before a prisoner's compassionate release or release to
medical probation, the sheriff is required to secure a
placement option for the prisoner, as specified.
b) SB 1399 provides that any prisoner determined to be
medically incapacitated with a medical condition that
renders the prisoner permanently unable to perform
activities of basic daily living, and results in the
prisoner requiring 24-hour care, and that incapacitation
did not exist at the time of sentencing, is granted medical
parole, if BPH determines that the conditions under which
the prisoner would be released would not reasonably pose a
threat to public safety.
c) AB 1539 (Krekorian), Chapter 740, Statutes of 2007,
extends the criteria for compassionate release to a state
prisoner if he or she is permanently medically
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incapacitated and the release is deemed not to threaten
public safety.
d) AB 29 (Villaraigosa), Chapter 751, Statutes of 1997,
establishes a procedure, known as "compassionate release,"
whereby the Director of the Department of Corrections (now
CDCR) or the Board of Prison Terms (now BPH), or both,
could recommend to the court that a prisoner's sentence be
recalled, and the court may recall the sentence if the
court finds that the prisoner is terminally ill and the
conditions under which the prisoner would be released or
receive treatment do not pose a threat to public safety.
7)DOUBLE REFERRAL. This bill is double-referred and upon
passage will be referred to the Committee on Public Safety.
8)POLICY COMMENT. This bill permits the Director of DSH to
adopt regulations exempt from the APA process. The APA was
designed to give the public the opportunity to participate in
the adoption of regulations. As such, the Committee may wish
to inquire as to why an exemption is necessary for this bill.
9)SUGGESTED AMENDMENTS. As currently drafted, the bill
discusses "director " throughout, and also references a
"medical director", the "Director of State Hospitals", and
"director at the state hospital where the patient is located"
with little consistency. The Committee may wish to consider
clarifying the roles of the three different directors
identified.
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REGISTERED SUPPORT / OPPOSITION:
Support
Union of American Physicians and Dentists (Sponsor)
American Civil Liberties Union of California
American Federation of State, County and Municipal Employees,
AFL-CIO
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
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California District Attorneys Association
California State Sheriffs' Association
Analysis Prepared by:Paula Villescaz / HEALTH / (916)
319-2097