BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 2233 ( Nielsen) 3
As Amended May 28, 2010
Hearing date: June 29, 2010
Penal Code
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PRISON HEALTH CARE:
STUDY RE: INVOLVING UNIVERSITY OF CALIFORNIA
HISTORY
Source: Author
Prior Legislation: None directly on point
Support: None known
Opposition:Union of American Physicians and Dentists/AFSCME
(unless amended); American Federation of State, County
and Municipal Employees (AFSCME), AFL-CIO; Taxpayers for
Improving Public Safety
Assembly Floor Vote: Ayes 74 - Noes 1
KEY ISSUE
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AB 2233 (Nielsen)
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SHOULD THE DEPARTMENT OF CORRECTIONS AND REHABILITATION (CDCR) BE
REQUIRED TO ENGAGE IN A STUDY TO ASSESS AND EVALUATE THE CONCEPT OF
INVOLVING THE UNIVERSITY OF CALIFORNIA SYSTEM IN THE DELIVERY OF
INMATE HEALTH CARE, AS SPECIFIED?
PURPOSE
The purpose of this bill is to require the CDCR, in cooperation
with the University of California, Office of the President, and
in consultation with the Federal Receiver for the California
Prison Health Care Receivership Corporation, to engage in a
study to assess and evaluate the concept of involving the
University of California system in the delivery of inmate health
care, as specified.
Existing law states that it is the intent of the Legislature
that the CDCR operate in the most cost-effective and efficient
manner possible when purchasing health care services for
inmates. To achieve this goal, it is desirable that CDCR have
the benefit and experience of the California Medical Assistance
Commission in planning and negotiating for the purchase of
health care services. The CDCR shall consult with the
Commission to assist the department in planning and negotiating
contracts for the purchase of health care services. The
Commission shall advise the CDCR, and may negotiate directly
with providers on behalf of the CDCR, as mutually agreed upon by
both parties. (Penal Code section 5023.)
Existing law provides that the CDCR may contract with providers
of health care services and health care network providers,
including, but not limited to, health plans, preferred provider
organizations, and other health care network managers. CDCR may
only reimburse a non-contract provider of hospital or physician
services at a rate equal to or less than the amount payable
under the Medicare Fee Schedule, regardless of whether the
hospital is located within or outside of California. Until
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regulations or emergency regulations are adopted, the CDCR shall
not reimburse a contract provider of hospital services at a rate
that exceeds 130% of the amount payable under the Medicare Fee
Schedule, a contract provider of physician services at a rate
that exceeds 110% of the amount payable under the Medicare Fee
Schedule, or a contract provider of ambulance services at a rate
that exceeds 120% of the amount payable under the Medicare Fee
Schedule. (Penal Code section 5023(a) to (c).)
Existing law creates Phase I of the Public Safety and Offender
Rehabilitation Services Act of 2007 that allows the CDCR to
design, construct, or renovate housing units, support buildings,
and programming space in order to add up to 12,000 beds at
facilities under its jurisdiction. CDCR shall complete site
assessments at facilities at which it intends to construct or
renovate additional housing units, support buildings, and
programming space. (Government Code Section 15819.40(a).)
Existing law authorizes the CDCR to design, construct, and
establish new buildings at facilities under the jurisdiction of
the Department to provide medical, dental, and mental health
treatment or housing for up to 6,000 inmates. (Government Code
Section 15819.40(c).)
Existing law creates Phase II of the Public Safety and Offender
Rehabilitation Services Act of 2007 that authorizes the CDCR to
complete site assessments at facilities where it intends to
construct or renovate additional housing units, support
buildings, and programming space in order to add up to 4,000
beds at facilities under its jurisdiction. After completing
these site assessments, CDCR shall define the scope and costs of
each project. Any new beds constructed shall be supported by
rehabilitative programming for inmates, including, but not
limited to, education, vocational programs, substance abuse
treatment programs, employment programs, and prerelease
planning. The CDCR is authorized to design, construct, or
renovate housing units, support buildings, and programming space
in order to add up to 4,000 beds at facilities under its
jurisdiction. (Government Code Section 15819.40(a).)
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Existing law authorizes the CDCR to design and construct new, or
renovate existing, buildings at facilities under the
jurisdiction of the department to provide medical, dental, and
mental health treatment or housing for up to 2,000 inmates.
(Government Code Section 15819.40(c).)
This bill would require the CDCR, in cooperation with the
University of California, Office of the President, and in
consultation with the Federal Receiver for the California Prison
Health Care Receivership Corporation, to engage in a study to
assess and evaluate the concept of involving the University of
California system in the delivery of inmate health care, with
the goal of significantly reducing costs to taxpayers while more
efficiently providing a constitutional level of health care to
inmates. The department would be required to include in its
study a review of similar reorganizations in other states.
This bill would require that the study consider topics,
including, but not limited to, all of the following:
Streamlining the leadership structure within the
California correctional health care system.
A separation of duties where one entity assesses quality
and controls budgets, while a separate entity is
accountable for execution and delivery of care.
Evaluating the efficacy of the existing decentralization
of leadership of the current 33 independent entities, as
well as the divisions of medical, dental, and mental
health.
How to best leverage the existing academic health care
centers.
Implementation of true electronic medical records
instead of printing and scanning.
Expansion of telemedicine.
Centralization of pharmacy, supplies, and materials
management.
This bill would require that the study be completed, and the
department shall report the study results to the Legislature by
September 1, 2011.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
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political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. On Monday, June 14, 2010, The U.S. Supreme Court agreed
to hear the state's appeal in this case.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
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<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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1. Need for This Bill
According to the author:
California's prison healthcare costs are 2-to-4-times
what other large states pay. The entire health care
management and delivery systems need to be
reconstituted based on best practices and not a
patchwork of court-compliance measures that have
created a large, inefficient and costly system.
The current system is antiquated and has not drawn on
success stories from outside California. Fiscal
management and physical delivery of services are
combined into a single entity, where best practices
suggest a separation of these duties into 2
categories. CDCR operates 33 independent entities with
little-to-no coordination of services or benefits from
economies-of-scale. Medical, dental and mental health
divisions are currently "siloed," which has lead to
redundant overhead expenses and impaired sharing of
resources, ideas and data.
2. Background - The Federal Prison Health Care Receivership
The inadequate provision of medical services to inmates at CDCR
prompted several class action lawsuits and court-ordered reforms
over the last several years. After "numerous experts testified
as to the 'incompetence and indifference' of prison physicians
and medical staff and described an 'abysmal' medical delivery
system where 'medical care too often sinks below gross
negligence to out-right cruelty'. . .[i]n February 2006, the
district court issued an order appointing a Receiver and
conferring upon the Receiver all of the powers of the Secretary
of the CDCR with respect to the delivery of medical care, while
concurrently suspending the Secretary's exercise of the same."
(Plata v. Schwarzenegger, 2010 U.S. App. LEXIS 8969, 5-6 (9th
Cir. Cal. Apr. 30, 2010).)
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3. NuPhysicia's Assessment
In effort to work toward removing itself from the control of
federal receivership, the CDCR requested that NuPhysicia
complete an assessment of the current inmate health care system
and analyze whether an integrated corrections health care system
similar to those employed in Georgia, New Jersey and Texas, is
feasible in California.
According to its Web site, "NuPhysicia evolved from the
telemedicine programs of The University of Texas Medical Branch
(UTMB) in Galveston, Texas. UTMB has been operating successful
telemedicine medical care since 1997. Through its division of
Correctional Managed Care, UTMB developed and operates a
large-scale program in prison health care that is
recognized as the nation's largest corrections telemedicine
system which provides specialty medicine, primary care medicine,
and behavioral health care." (NuPysicia, NuPhysicia Origins
http://www.nuphysicia.com/NuPhysicia_LLC/NuPhysicia_Origins.html )
NuPhysicia released its assessment of the California
correctional health care system, "Assessment and Evaluation:
California's Opportunities for Improved Inmate Health Care
Quality and Cost Controls" (hereinafter NuPhysicia Assessment),
in March 2010. The assessment identified the primary health
care delivery challenges faced by the CDCR:
The current health care system is based on court
mandates, not health care outcomes;
There is a lack of a single, statewide health care
delivery system in CDCR; and CDCR institutions operate as
33 independent entities with very limited coordination of
care. Decentralization leads to process variances, cost
escalations, and inadequate data management.
Independent court cases are crippling efforts to manage
health care because medical, mental health, and dental
systems are all being operated independently.(NuPhysicia,
Assessment and Evaluation: California's Opportunities for
Improved Inmate Health Care Quality and Cost Controls
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(March 2010) p. 5):
The NuPhysicia Assessment stated, "Major changes in method of
the care delivery and administrative restructuring will be
necessary to provide progress toward the primary goals of
restoring a constitutional level of care, relieving the State
from court oversight, and providing improved cost management for
the CDCR health care program." NuPhysicia feels that through
implementation of a specific approach to improved management,
the State can achieve a constitutional level of health care and
dramatically reduce the cost of care by implementing an academic
correctional health care model. (NuPhysicia, Assessment and
Evaluation: California's Opportunities for Improved Inmate
Health Care Quality and Cost Controls (March 2010) p. 6.)
The NuPhysicia Assessment recommends these improvements through
the following specific actions (Id. at p. 6):
Create a new administrative structure, the "Correctional
Health Care Authority", that will have the ability to
separate monitoring and budgetary functions from the
delivery of health care;
Integrate health care disciplines like medical, dental,
and mental health, into a single health care delivery
system;
Utilize the strength of the University of California
health centers by creating a model similar to other
successful, university based systems; and,
Make expedited operational changes in six specific
areas:
o Utilize Electronic Medical Record Implementation
instead of document scanning;
o Accelerate the implementation and utilization of
telemedicine;
o Centralize off-site care protocols and utilization
management;
o Centralize pharmacy services;
o Centralize the supply logistics system; and,
o Centralize dialysis services.
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4. What This Bill Would Do
This bill would require CDCR, in cooperation with the University
of California, Office of the President, and in consultation with
the Federal Receiver for the California Prison Health Care
Receivership Corporation, to engage in a study to assess and
evaluate the concept of involving the University of California
system in the delivery of inmate health care, with the goal of
significantly reducing costs to taxpayers while more efficiently
providing a constitutional level of health care to inmates. The
bill specifies certain topics that the study must cover,
although not exclusively, and requires that the study be
completed, and that the department report the study results to
the Legislature by September 1, 2011.
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At the Governor's request, officials from the University of
California cooperated with NuPhysicia during the assessment
process described above. However, there has been no agreement
among parties to move corrections health care under the umbrella
of the University of California's health care system.
In March 2010, the Chairman of the University of California's
Board of Regents said that it would form a special committee to
study whether to take over inmate health care for CDCR. The
committee will study issues including the cost, effect on labor
relations, and the university's liability in inmate lawsuits.
(Thompson, UC Regents to Study Prison Health Care Takeover,
Associated Press (March 25, 2010).)
One issue raised by this bill is whether it is premature to
require CDCR to study, along with UC, whether UC should become
involved in delivering health care to inmates at a time when UC
is already conducting its own study into whether it wants to be
involved. Members may wish to consider whether it would be more
appropriate to wait until UC has completed its study and, if it
decides it is interested in becoming involved in the prison
health care system, the Governor could instruct CDCR to study
what role UC could play, based in part on what role UC decides
it wants to play.
This bill proposes a study focusing on UC being involved in the
actual delivery of health care services. Another approach, as
recommended by the Union of American Physicians and Dentists,
would be to look into UC working with CDCR in an advisory
capacity.
SHOULD CDCR BE REQUIRED TO UNDERTAKE THIS STUDY AT THIS POINT OR
WAIT UNTIL UC HAS DETERMINED THAT IT IS INTERESTED?
SHOULD THE STUDY FOCUS ON UC INVOLVEMENT IN ACTUAL DELIVERY OF
SERVICES OR TO ACT IN AN ADVISORY ROLE?
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5. Argument in Opposition
The Union of American Physicians and Dentists states:
The Union of American Physicians and Dentists
(UAPD/AFSCME) is comprised of state, county, municipal
and private sector physicians, dentists and
podiatrists. UAPD strongly opposes legislation (AB
2233 / Nielsen), which proposes a study to restructure
correctional healthcare without the input of rank and
file CDCR physicians and dentists.
AB 2233 requires the CDCR, in cooperation with the
University of California and the Federal Receiver, to
engage in a study evaluating involving the University
of California (UC) system in the delivery of inmate
health care.
UAPD/AFSCME embraces the concept of involving the UC
in an "advisory role" in transforming correctional
healthcare in California. For several years now, we
have worked in partnership with the Federal Receiver
to improve constitutionally mandated healthcare to
inmates in CDCR. In a January 15th Report to the
Legislature, the Receiver acknowledged the
improvements in inmate healthcare.
AB 2233 is silent on the role CDCR physicians and
dentists would play in the aforementioned study.
Accordingly, we oppose AB 2233 unless it is amended to
include the active participation of rank and file CDCR
physicians and dentists. Furthermore, we seek
amendments to the bill, mandating that the CDCR
evaluate ways in which the UC can play an "advisory"
role in the delivery of CDCR inmate healthcare.
SHOULD ANY STUDY INCLUDE PARTICIPATION OF RANK AND FILE HEALTH
CARE WORKERS?
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