BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 955| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- UNFINISHED BUSINESS Bill No: SB 955 Author: Beall (D), et al. Amended: 8/1/16 Vote: 21 SENATE 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: 5-2, 5/27/16 AYES: Lara, Beall, Hill, McGuire, Mendoza NOES: Bates, Nielsen SENATE FLOOR: 24-13, 5/31/16 AYES: Allen, Beall, Block, De León, Glazer, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Lara, Leno, Liu, McGuire, Mendoza, Mitchell, Monning, Moorlach, Pan, Pavley, Roth, Wieckowski, Wolk NOES: Anderson, Bates, Berryhill, Cannella, Fuller, Gaines, Galgiani, Huff, Leyva, Morrell, Nielsen, Stone, Vidak NO VOTE RECORDED: Jackson, Nguyen, Runner ASSEMBLY FLOOR: 50-24, 8/22/16 - See last page for vote SUBJECT: State hospital commitment: compassionate release SOURCE: Union of American Physicians and Dentists DIGEST: This bill requires the Director of the Department of SB 955 Page 2 State Hospitals (DSH) 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. Assembly Amendments (1) specify medical conditions that make a patient permanently medically incapacitated, including, but not limited to, coma, persistent vegetative state, brain death, ventilator dependency, or loss of control of muscular or neurological function; (2) require DSH to promulgate regulations, as specified, to establish a process for reinstating a patient's suspended commitment order, as specified; and (3) make other clarifying and technical changes. ANALYSIS: 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 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. SB 955 Page 3 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 adjudged to punishment. Gives the court the discretion to suspend the commitment for compassionate release when specified criteria are met. 2) Requires a physician employed by DSH to notify the medical director and the patient advocate when a prognosis is made of a patient being eligible for compassionate release. Requires the medical director to notify the DSH Director if he or she concurs with the prognosis. Requires the medical director or the medical director's designee to notify the patient of the discharge procedures and to obtain the patient's consent for discharge. Requires the medical director or medical director's 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. SB 955 Page 4 3) Allows a patient or his or her family member or designee to contact the medical director or the executive director of the state hospital where the patient is located, or the DSH Director, to request consideration for a recommendation from the medical director or the medical director's designee to the court that the patient's commitment be suspended 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 suspended and the patient released. Requires a recommendation for compassionate release 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, the physician's and medical director's determination that the patient meets compassionate release criteria, 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 judge that originally committed the patient, if possible. Requires, if the patient is an MDO on parole and was committed for treatment by BPH, the matter to 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 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 patient was committed. b) If the patient is an MDO on parole, the district attorney of the county from which the patient was committed to the state prison. SB 955 Page 5 c) The public defender of the county from which the patient was committed, or the patient's private attorney, if available. d) If the patient is 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 a patient's commitment to be suspended and the patient released if the court approves a determination for compassionate release made by a physician employed by DSH, and the court agrees, and 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 with a medical condition that renders him or her permanently unable to perform activities of basic daily living and results in the patient requiring 24-hour total care, including, but not limited to, coma, persistent vegetative state, brain death, ventilator-dependency, or loss of control of muscular or neurological function, the incapacitation did not exist at the time of the original SB 955 Page 6 commitment, and the medical director responsible for the patient's care and the Director of DSH both certify that the patient is incapable of receiving mental health treatment. 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 compassionate 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 executive director of the state hospital 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)Prohibits a patient whose commitment has been suspended for compassionate release from being considered to be under the custody of, or the responsibility of, DSH. 12)Allows a patient's suspended commitment to be reinstated by the court pursuant to a finding by DSH that the patient's SB 955 Page 7 condition has changed such that he or she poses a threat to public safety or no longer meets the criteria for compassionate release. 13)Requires DSH, in consultation with relevant stakeholders, as specified, to promulgate regulations to establish a process for petitioning the court for reinstatement of a suspended commitment order, as specified. 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 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 SB 955 Page 8 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 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 SB 955 Page 9 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.:YesLocal: No According to the Assembly Appropriations Committee, this bill is likely to result in an overall General Fund (GF) cost savings as described below: 1)DSH and CDCR would likely incur minor and absorbable one-time costs to promulgate regulations as well as minor and absorbable ongoing costs to evaluate patients for eligibility and perform other activities related to patient release. DSH anticipates 20-30 patients a year may be eligible for this program. Although patients may be released under this bill, it is not likely to result in fewer commitments, given a waiting list for beds. To the extent persons released under this bill have significantly higher health care costs than an average patient, significant ongoing reductions in health care costs, potentially in the low millions are possible. Those SB 955 Page 10 persons eligible for release include those close to the end of life or permanently medically incapacitated, who tend to have high health care costs. For context, the Department of Health Care Services reports the top 1% of highest-utilizing Medi-Cal enrollees have costs of over $100,000 per year. 2)Potential cost pressure to the Medi-Cal program for enrollment of persons released under the program. Persons released may also be eligible for Medicare due to age or disability, which is paid by the federal government and would cover a significant portion of hospital and medical costs. If persons released pursuant to this bill are childless adults under age 65, the Medi-Cal costs would be largely paid for through federal funds. To the extent individuals require skilled nursing services, Medi-Cal would likely be the primary payer (GF/federal). SUPPORT: (Verified8/17/16) 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: (Verified 8/17/16) California State Sheriffs' Association ARGUMENTS IN SUPPORT: Supporters argue that keeping terminally SB 955 Page 11 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' 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. ASSEMBLY FLOOR: 50-24, 8/22/16 AYES: Alejo, Arambula, Atkins, Baker, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chau, Chávez, Chiu, Chu, Cooley, Daly, Dodd, Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gipson, Gomez, Gonzalez, Gordon, Gray, Roger Hernández, Holden, Jones-Sawyer, Lackey, Levine, Lopez, Low, McCarty, Medina, Mullin, Nazarian, O'Donnell, Quirk, Ridley-Thomas, Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Williams, Wood, Rendon NOES: Travis Allen, Bigelow, Brough, Chang, Dahle, Beth Gaines, Gallagher, Gatto, Grove, Hadley, Harper, Irwin, Jones, Kim, Linder, Maienschein, Mathis, Mayes, Obernolte, Patterson, Steinorth, Wagner, Waldron, Wilk NO VOTE RECORDED: Achadjian, Cooper, Dababneh, Melendez, Olsen, Rodriguez SB 955 Page 12 Prepared by:Reyes Diaz / HEALTH / (916) 651-4111 8/29/16 10:34:30 **** END ****