BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 1419       Hearing Date:    April 19, 2016     
          
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          |Author:    |Galgiani                                             |
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          |Version:   |April 13, 2016                                       |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|JRD                                                  |
          |           |                                                     |
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               Subject:  Uniform Anatomical Gift Act:  Prison Inmates



          HISTORY

          Source:   Author

          Prior Legislation:SB 1395 (Alquist)-Chapter 217, Statutes of  
          2010
                         AB 2440 (Berryhill, of 2010)-died in the Assembly  
                         Health Committee
                         AB 289 (Plescia, of 2003)-died in the Assembly  
          Health Committee 

          Support:  Unknown

          Opposition:None known

                     
          PURPOSE

          The purpose of this bill is to require the Department of  
          Corrections and Rehabilitation (CDCR) to develop a form, as  
          specified, allowing a prisoner to elect to make an anatomical  
          gift in the event of his or her death, as specified. 
          
          Existing law establishes the Uniform Anatomical Gift Act, which  
          regulates the making and distribution of organ donations.   







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          (Health and Safety Code  7150, et seq.) 

          This bill requires CDCR to develop and adopt a form that allows  
          a prisoner to elect to make an anatomical gift in the event of  
          his or her death, as specified. 

          This bill requires the form to be titled "Document of  
          Gift-Donate Life California Organ and Tissue Donor Registry" and  
          to have at a minimum the following characteristics:

                 Clearly indicates the prisoner's election to be added to  
               the donor registry. 
                 Allows the prisoner to designate whether the prisoner  
               would like to donate his or her organs or tissues for  
               transplantation or research, or both. 
                 Allows the prisoner to state any donation limitations  
               specifying the organs and tissues that the prisoner does  
               not provide legal consent to be recovered. 
                 Contains an advisement that states all of the following:  


                 o        Electing to make an anatomical gift is  
                   completely voluntary.
                 o        There are no repercussions for declining to, or  
                   benefits for agreeing to, elect to make an anatomical  
                   gift. 
                 o        The prisoner may consult with a medical  
                   professional or counselor about his or her decision. 
                 o        The prisoner may revoke his or her election to  
                   make an anatomical gift at any time, as specified. 

                 Contains a statement notifying the prisoner that by  
               signing or placing his or her mark on the form that the  
               prisoner is legally authorizing the recovery of organs or  
               tissues in the event of his or her death; and, 
                 Contains the prisoner's signature or mark if the  
               prisoner cannot write. 

          This bill requires the form to be presented to the prisoner upon  
          his or her first admittance into the state prison system and  
          allows the prisoner to elect to sign the form or refuse to sign  
          at that time.  

          This bill requires the form to be made available for completion  








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          and signature at the prisoner's request, consistent with the  
          policies and procedures of CDCR. 

          This bill allows the prisoner to revoke his or her election to  
          make an anatomical gift at any time by delivery of a written  
          statement to the official in charge of the facility where the  
          prisoner is confined. Also, requires CDCR, upon receipt of this  
          statement to mark the form above as revoked and to retain the  
          revoked document of gift and the statement revoking the gift in  
          the prisoner's central file.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several years this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 2015 Status Report in Response to  
          February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge  
          Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  








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          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 Status Report in Response to February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).)  
           
          While significant gains have been made in reducing the prison  
          population, the state must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          COMMENTS

          1.  Need for this Legislation 
          
          According to the author:

            California's Health and Safety Code does not provide a process  
            for prison inmate organ donation.  Currently, inmates who  
            would like to sign up to be an organ donor are not provided a  
            chance to register, as there is no official procedure in  
            place.  Federally, the Federal Bureau of Prisons allows organ  
            and tissue donation by inmates only when the recipient is a  
            member of the inmate donor's immediate family, defined as  








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            parents, siblings, and biological children. 

            The United States is currently facing a shortage of anatomical  
            gift donors, with California making up 20% of the national  
            donor waiting list. Additionally, less than one percent of  
            hospital deaths meet the criteria for organ donation. It is  
            estimated that one individual organ donor can save the lives  
            of up to eight people, and tissue donors can help more than 50  
            people. Due to the fact that there is no process in place to  
            provide inmates with the chance to donate, potential donors  
            are prevented from registering. This bill will create a  
            voluntary process for an inmate to register as an organ donor,  
            which could increase the donor pool. It is important to note  
            that this bill also requires a process to be in place for the  
            inmate to remove him- or herself from registration at any  
            time. In Utah, where similar legislation allowing for  
            voluntary sign up has been enacted into law, over 250 inmates  
            have signed up.
          
          2. The Organ Procurement and Transplantation Network

          The Organ Procurement and Transplantation Network (OPTN) is a  
          public-private partnership that links all professionals involved  
          in the United States donation and transplantation system. The  
          United Network for Organ Sharing (UNOS) serves as the OPTN under  
          contract with the Health Resources and Services Administration  
          of the U.S. Department of Health and Human Services.  Currently,  
          every transplant hospital program and organ procurement  
          organization in the U.S. is an OPTN member. Membership means  
          that their transplant programs are certified by UNOS and that  
          they play an active role in forming the policies that govern the  
          transplant community. In California, there are 21 transplant  
          centers (hospitals) and four organ procurement organizations  
          (OPOs), which are authorized by the Centers for Medicare and  
          Medicaid Services to procure organs for transplantation.  Each  
          individual hospital comes up with their own policies to evaluate  
          patients and determine eligibility to receive an organ  
          transplant.  UNOS develops the policies to determine how  
          available organs are distributed among eligible patients waiting  
          for a transplant.  According to Donate Life California's Web  
          site, there are currently more than 123,000 people in the U.S.  
          waiting for a life-saving organ transplant, and nearly 22,000  
          live in California. Every 10 minutes another person is added to  
          the waiting list. 








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          3. Effect of this Legislation

          According to CDCR, inmates are screened at intake by a nurse to  
          identify any physical and mental health care needs. The inmate  
          is tested for tuberculosis and hepatitis C, and, if requested,  
          for HIV.  Within 14 days of entering CDCR's custody, all inmates  
          undergo a comprehensive medical evaluation in which a physician  
          obtains a medical history from the inmate. Any information  
          obtained during the medical evaluation is self-disclosed by the  
          inmate, as CDCR does not have access to any prior medical  
          records. Any process involving informed consent is required to  
          be done by a physician during the comprehensive medical  
          evaluation. CDCR does not solicit an inmate's interest in being  
          an organ and tissue donor. Inmates are responsible for  
          disclosing whether they are already registered as organ and  
          tissue donors during the medical evaluation, and that  
          information is noted in the medical record.

          CDCR provides an Advance Directive for Health Care to an inmate  
          if it is requested specifically by the inmate or the inmate's  
          medical condition warrants it because the inmate is facing a  
          life-threatening condition or treatment.  This document consists  
          of a durable power of attorney, which allows inmates to  
          designate someone to make decisions on their behalf if they are  
          unable to do it on their own, and a living will, which allows  
          inmates to state their goals or desires for the types of health  
          care they do or do not want.  The advance directive form  
          includes an optional section for an inmate to choose whether or  
          not he or she is willing to donate organs or other tissues upon  
          death.  If an inmate chooses to complete this part of the form,  
          the inmate is instructed to check the box that applies to the  
          inmate's wish.  The inmate may give any needed organs or  
          tissues, may specify which organs and tissues he or she wants to  
          donate, or may select the box choosing not to donate. The inmate  
          may also designate whether his or her gift is for purposes of  
          transplantation, therapy, research, or education. Before an  
          inmate signs the advance directive, a medical staff person is  
          required to document that the inmate has been fully informed and  
          understands the form, and two additional witnesses are required  
          to verify that the inmate has willingly signed the form and  
          completed it according to the inmate's wishes.   

          This bill would require that, in addition to the form currently  








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          provided, CDCR provide an inmate with an organ donation form  
          upon first admittance. 

          
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