BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                        SB 955|
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                                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  








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          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.








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           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.










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           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. 








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              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  








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                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  








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             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  








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            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  








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            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  








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            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  








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          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












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          Prepared by:Reyes Diaz / HEALTH / (916) 651-4111
          8/29/16 10:34:30


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