BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                       SB 1238|
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                                   THIRD READING 


          Bill No:  SB 1238
          Author:   Pan (D) 
          Amended:  3/29/16  
          Vote:     21 

           SENATE HEALTH COMMITTEE:  9-0, 4/6/16
           AYES:  Hernandez, Nguyen, Hall, Mitchell, Monning, Nielsen,  
            Pan, Roth, Wolk

           SENATE PUBLIC SAFETY COMMITTEE:  7-0, 4/19/16
           AYES:  Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone

          SENATE APPROPRIATIONS COMMITTEE:  Senate Rule 28.8
           
           SUBJECT:   Inmates:  biomedical data


          SOURCE:    Author

          DIGEST:   This bill permits records-based biomedical research,  
          using existing information, to be conducted on prisoners,  
          notwithstanding a prohibition on biomedical research on  
          prisoners.

          ANALYSIS:  

          Existing federal law: 

          1)Establishes various procedures and protections relating to the  
            use of human subjects in medical research, including a  
            requirement that an investigator obtain the legally effective  
            informed consent of the subject or the subject's legally  
            authorized representative prior to involving a human being as  
            a subject in research. 









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          2)Establishes the Health Information Portability and  
            Accountability Act of 1996 (HIPAA). HIPAA established federal  
            protections for patient's health information held by "covered  
            entities" and any "business associates" that a covered entity  
            engages to help it carry out its health care activities. A  
            covered entity can be a provider, a health plan, or a health  
            care clearinghouse that processes health information it  
            receives from another entity. While HIPAA establishes a  
            federal floor for minimum privacy protections of individually  
            identifiable health information, states are permitted to enact  
            laws that provide greater privacy protections or rights. 

          Existing state law:

          1)Prohibits biomedical research, as defined, from being  
            conducted on any prisoner in California, with the exception of  
            permitting a physician to provide a patient who is a prisoner  
            with a drug or treatment that is part of a new drug trial, and  
            the patient has given informed consent.

          2)Defines "biomedical research," for purposes of the above  
            prohibition, as research relating to or involving biological,  
            medical, or physical science.

          3)Limits behavioral research, as defined, to studies of the  
            possible causes, effects and processes of incarceration and  
            studies of prisons as institutional structures or of prisoners  
            as incarcerated persons which present minimal or no risk and  
            no more than mere inconvenience to the subjects of the  
            research. Specifies that informed consent is not required for  
            participation in behavioral research when the California  
            Department of Corrections and Rehabilitation determines that  
            it would be unnecessary or significantly inhibit the conduct  
            of such research. 

          4)Establishes, under the Protection of Human Subjects in the  
            Medical Experimentation Act, various protections for subjects  
            of medical experimentation relating to a bill of rights;  
            informed consent procedures and documentation; and, the  
            provision of specified disclosures, including the right for a  
            subject to give or withdraw consent freely and without duress.  
             Imposes penalties for violations of these protections. For  








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            purposes of these provisions of law, "medical experiment" is  
            defined as penetrating or damaging tissues, or the use of a  
            drug or device, in the practice or research of medicine in a  
            manner not reasonably related to maintaining or improving the  
            health of the subject, or the investigational use of a drug or  
            device, or withholding medical treatment.

          5)Establishes the California Medical Information Act, which  
            prohibits a health care provider, health care service plan, or  
            contractor from disclosing medical information regarding a  
            patient without first obtaining authorization. Defines  
            "medical information" as any individually identifiable  
            information, in electronic or physical form, in possession of,  
            or derived from, a health care provider, health plan,  
            pharmaceutical company, or contractor regarding a patient's  
            medical history, mental or physical condition, or treatment.
           
           This bill:

          1)Permits records-based biomedical research using existing  
            information, without prospective interaction with human  
            subjects, to be conducted on prisoners, notwithstanding a  
            prohibition on biomedical research on prisoners.

          2)Restricts the use or disclosure of individually identifiable  
            records pursuant to the above provision permitting  
            records-based biomedical research to only occurring after both  
            of the following requirements have been met:

             a)   The research advisory committee, established pursuant to  
               specified provisions of existing California regulations  
               pertaining to research involving prisoners (currently  
               limited to behavioral research), approves of the use or  
               disclosure; and,

             b)   The prisoner provides written authorization for the use  
               or disclosure, or the use or disclosure is permitted by  
               specified provisions of federal HIPAA regulations.

          3)Excludes from the definition of "biomedical research," for  
            purposes of provisions of law governing biomedical and  
            behavioral research of prisoners, the accumulation of  








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            statistical data in the assessment of the effectiveness of  
            nonexperimental public health programs or treatment programs  
            in which inmates routinely participate


          


          Comments
          
          1)Author's statement.  According to the author, 10 years ago,  
            federal court placed the state's prison health care system  
            under a receivership after determining that an average of one  
            inmate per week died as a result of medical malpractice or  
            neglect. The receivership has improved healthcare in prisons  
            over the last 10 years, but the inability to share data-backed  
            best practices contributes to the challenge of providing  
            quality health care to 127,000 inmates, who are  
            disproportionately black or Latino. This bill authorizes the  
            publication of statistical data in the assessment of the  
            effectiveness of nonexperimental public health programs or  
            treatment programs in which inmates routinely participate.  
            This would enable health care providers in prisons and jails  
            to learn from the best practices used at state correctional  
            facilities, and utilize these life-saving techniques.  
            California's prison system has been on the cutting edge of  
            providing health care to inmates, but current law prevents the  
            publishing of even non-experimental medical data that could be  
            used to improve health care and potentially save lives.  
            Prisons face unique health care challenges, and this bill  
            allows health care providers in correctional facilities to  
            publish and learn from non-experimental data in order to  
            provide higher quality health care.

          2)Federal receivership for prison health care.  In 2005, a  
            federal judge, acting on a class-action lawsuit alleging poor  
            medical care in California state prisons violated the  
            constitutional protection against cruel and unusual  
            punishment, ordered that the California prison health care  
            system be placed under federal control. California officially  
            ceded control in 2006 to a court-appointed receiver, formally  
            called California Correctional Health Care Services. Under the  








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            court's order, the receiver is to bring the level of medical  
            care in California prisons to a standard that no longer  
            violates the Constitution, and then return control of prison  
            medical care to the state. In July of last year, Folsom State  
            Prison became the first of the state's correctional facilities  
            to have health care returned to state control, marking what is  
            hoped to be the beginning of the end of the federal  
            receivership.


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No


          SUPPORT:   (Verified5/18/16)


          California Correctional Health Care Services 


          OPPOSITION:   (Verified5/18/16)


          None received

          ARGUMENTS IN SUPPORT:   This bill is supported by California  
          Correctional Health Care Services (CCHCS, the federal receiver  
          for prison health care), which states that over the last several  
          years, the prison system has been the site of extremely  
          newsworthy medical developments, and has been on the cutting  
          edge of providing treatment to prison inmates that would be  
          beneficial to share with the medical community at large.  
          According to CCHCS, between 2012 and 2014, the prison system  
          experienced hunger strikes that lasted for a significant period  
          of time. As a result, prison doctors developed an effective  
          monitoring system that provided appropriate treatment as needed  
          during the strikes. Additionally, CCHCS states that for the past  
          several years, the prison system has undertaken a massive  
          program for identifying and treating Valley Fever in central  
          valley prisons. According to CCHCS, California was the first  
          health care system in the nation to use a newly developed skin  
          test that identifies exposure/non-exposure to Valley Fever,  








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          which is now used in making wise housing choices for inmates  
          statewide. Finally, CCHCS notes that the prison system just  
          recently had an outbreak of Legionnaires Disease at San Quentin  
          State Prison, where, due to quick identification and effective  
          treatment, doctors were able to successfully treat inmates  
          without the loss of life. CCHCS states that it would like to  
          publish its findings in medical journals that would be of  
          benefit to other correctional and community entities, but under  
          current law that dates to the 1970s, there is a prohibition for  
          undertaking biomedical research on prisoners. CCHCS states that  
          the broad nature of this prohibition would even prohibit CCHCS  
          from publishing an accumulation of statistical data that  
          provided an assessment of the effectiveness of any  
          non-experimental public health or treatment program such as  
          those described above. CCHCS states that this bill narrowly  
          amends this prohibition to allow CCHCS to publish findings from  
          non-experimental public health or treatment programs.
          

          Prepared by:Vince Marchand / HEALTH /
          5/18/16 16:28:00


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