BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 1399|
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THIRD READING
Bill No: SB 1399
Author: Leno (D)
Amended: 5/20/10
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-2, 4/20/10
AYES: Leno, Cedillo, Hancock, Steinberg, Wright
NOES: Cogdill, Huff
SENATE APPROPRIATIONS COMMITTEE : 7-1, 5/17/10
AYES: Kehoe, Cox, Alquist, Corbett, Leno, Wolk, Yee
NOES: Denham
NO VOTE RECORDED: Price, Walters, Wyland
SUBJECT : Medical Parole
SOURCE : Federal Prison Health Care Receiver
DIGEST : This bill establishes a medical parole program
for certain state prison inmates, as specified. This bill
requires the Department of Corrections and Rehabilitation
to: 1) Enter into memoranda of understanding with the
Social Security Administration and the State Department of
Health Care Services to facilitate prerelease agreements to
help inmates initiate benefits claims; 2) pay the state
share of Medi-Cal costs for inmates that have been granted
medical parole; 3) reimburse providers for the medical
treatment and long-term care costs of inmates granted
medical parole who have not retained medical insurance, at
a rate no lower than the Medi-Cal rate until a parolee
CONTINUED
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retains alternate health care coverage; and 4) reimburse
counties for costs associated with providing an inmate
granted medical parole with a public guardian. This bill
specifies a medical evaluation process, and requirements
for the Board of Parole Hearings.
ANALYSIS : Existing law provides that if the Secretary of
the Department of Corrections and Rehabilitation (CDCR) or
the Board of Parole Hearings (BPH) or both determine that a
prisoner is either:
1.Terminally ill with an incurable condition caused by an
illness or disease that would produce death within six
months, as determined by a physician employed by CDCR; or
2.The prisoner 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 prisoner requiring 24-hour total care,
including, but not limited to, coma, persistent
vegetative state, brain death, ventilator-dependency,
loss of control of muscular or neurological function, and
that incapacitation did not exist at the time of the
original sentencing;
3.And that the conditions under which the prisoner would be
released or receive treatment do not pose a threat to
public safety,
The secretary or BPH may recommend to the court that the
prisoner's sentence be recalled and that the court shall
have the discretion to resentence or recall if the court
finds that the facts described above exist. (Penal Code
section 1170(e)(1) and (e)(2).)
Existing law provides that BPH shall make findings, as
specified, before making a recommendation for resentencing
or recall to the court. This subdivision does not apply to
a prisoner sentenced to death or a term of life without the
possibility of parole. (Penal Code section (e)(2).
Existing law provides that within 10 days of receipt of a
positive recommendation by the secretary or BPH, the court
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shall hold a hearing to consider whether the prisoner's
sentence should be recalled. (Penal Code section (e)(3).)
Existing law provides that any physician employed by CDCR
who determines that a prisoner has six months or less to
live shall notify the chief medical officer of the
prognosis. If the chief medical officer concurs with the
prognosis, he or she shall notify the warden. Within 48
hours of receiving notification, the warden or the warden's
representative shall notify the prisoner of the recall and
resentencing procedures, and shall arrange for the prisoner
to designate a family member or other outside agent to be
notified as to the prisoner's medical condition and
prognosis, and as to the recall and resentencing
procedures. If the inmate is deemed mentally unfit, the
warden or the warden's representative shall contact the
inmate's emergency contact and provide the information
described above, as specified. (Penal Code section
(e)(4).)
Existing law provides that the warden or the warden's
representative shall provide the prisoner and his or her
family member, agent, or emergency contact, updated
information throughout the recall and resentencing process
with regard to the prisoner's medical condition and the
status of the prisoner's recall and resentencing
proceedings. (Penal Code section (e)(5).)
Existing law provides that the prisoner or his or her
family member or designee may independently request
consideration for recall and resentencing by contacting the
chief medical officer at the prison or the secretary. Upon
receipt of the request, the chief medical officer and the
warden or the warden's representative shall follow the
procedures described above. If the secretary determines
that the prisoner satisfies the criteria for sentencing
recall described above, the secretary or BPH may recommend
to the court that the prisoner's sentence be recalled. The
secretary shall submit a recommendation for release within
30 days in the case of inmates sentenced to determinate
terms and, in the case of inmates sentenced to
indeterminate terms, the secretary shall make a
recommendation to BPH with respect to the inmates who have
applied under this section. BPH shall consider this
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information and make an independent judgment of eligibility
and make findings related thereto before rejecting the
request or making a recommendation to the court. This
action shall be taken at the next lawfully noticed board
meeting. (Penal Code section (e)(6).)
Existing law provides that any recommendation for recall
submitted to the court by the secretary or BPH shall
include one or more medical evaluations, a postrelease
plan, and findings pursuant to paragraph (2). (Penal Code
section (e)(7).)
Existing law provides that, if possible, the matter shall
be heard before the same judge of the court who sentenced
the prisoner.
Existing law provides that if the court grants the recall
and resentencing application, the prisoner shall be
released by CDCR within 48 hours of receipt of the court's
order, unless a longer time period is agreed to by the
inmate. At the time of release, the warden or the warden's
representative shall ensure that the prisoner has each of
the following in his or her possession: a discharge medical
summary, full medical records, state identification, parole
medications, and all property belonging to the prisoner.
After discharge, any additional records shall be sent to
the prisoner's forwarding address. (Penal Code section
(e)(9).)
Existing law provides that the secretary shall issue a
directive to medical and correctional staff employed by
CDCR that details the guidelines and procedures for
initiating a recall and resentencing procedure. The
directive shall clearly state that any prisoner who is
given a prognosis of six months or less to live is eligible
for recall and resentencing consideration, and that recall
and resentencing procedures shall be initiated upon that
prognosis. (Penal Code section (e)(10).)
This bill requires CDCR to complete all of the following
tasks associated with inmates granted medical parole
pursuant to Section 3041 or 3550:
1.CDCR shall enter into memoranda of understanding with the
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Social Security Administration and the State Department
of Health Care Services to facilitate prerelease
agreements to help inmates initiate benefits claims.
2.CDCR shall pay the state share of Medi-Cal costs for
inmates that have been granted medical parole.
3.CDCR shall reimburse providers for the medical treatment
and long-term care costs of inmates granted medical
parole who have not retained medical insurance, at a rate
no lower than the Medi-Cal rate until the point that a
parolee retains alternate health care coverage.
4.CDCR shall reimburse counties for the costs associated
with providing an inmate granted medical parole with a
public guardian.
This bill provides that, except as specified below, a
prisoner who the chief medical officer at the institution
where the prisoner is located, determines the prisoner
suffers from a significant and permanent condition,
disease, or syndrome resulting in the prisoner being
physically or cognitively debilitated or incapacitated
shall be granted medical parole if BPH determines that the
conditions under which the prisoner would be released would
not reasonably pose a threat to public safety.
This bill provides that this "medical parole" shall not
apply to:
1.Any prisoner sentenced to death,
2.Any prisoner sentenced to life in prison without
possibility of parole or
3.Any inmate who is serving a sentence for which medical
parole is prohibited by any initiative statute.
This bill provides that medical parole placements and
revocations shall be made in accordance with the Victim's
Bill of Rights Act of 2008: Marsy's Law.
This bill provides that when a physician employed by CDCR
who is the primary care provider for an inmate identifies
an inmate that he or she believes meets the criteria for
medical parole, as specified, the primary care physician
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shall recommend to the chief medical officer of the
institution where the prisoner is located that the prisoner
be referred to BPH for consideration for medical parole.
Within 30 days of receiving that recommendation, if the
chief medical officer concurs in the recommendation of the
primary care physician he or she shall, refer the matter to
BPH, and if the chief medical officer does not concur in
the recommendation, he or she shall provide the primary
care physician with a written explanation of the reasons
for denying the referral.
This bill provides that the prisoner or his or her family
member or designee may independently request consideration
for medical parole by contacting the chief medical officer
at the prison or the secretary. Within 30 days of
receiving the request, the chief medical officer shall, in
consultation with the prisoner's primary care physician,
make a determination whether the prisoner meets the
criteria for medical parole as specified, and, if the chief
medical officer determines that the prisoner does satisfy
the specified criteria he or she shall refer the matter to
BPH. If the chief medical officer does not concur in the
recommendation, he or she shall provide the prisoner or his
or her family member or designee with a written explanation
of the reasons for denying the application.
This bill provides that upon receiving a recommendation
from a chief medical officer of CDCR for a prisoner to be
granted medical parole, BPH, as specified, shall make an
independent judgment regarding whether the conditions under
which the inmate would be released pose a reasonable threat
to public safety, and make findings related thereto.
This bill provides that the Division of Adult Parole
Operations shall have the authority to impose any
reasonable conditions on prisoners subject to medical
parole supervision, including, but not limited to, the
requirement that the parolee submit to electronic
monitoring. As a further condition of medical parole the
parolee may be required to submit to an examination by a
physician for the purpose of diagnosing their current
medical condition. In the event such an examination takes
place, a report of the examination and diagnosis shall be
submitted to BPH by the examining physician. If BPH
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determines that the person's medical condition has
substantially improved and that the person poses a threat
to public safety, BPH may revoke the parole and return the
person to the custody of CDCR.
This bill provides that a prisoner placed on medical parole
supervision prior to the earliest possible parole date that
the prisoner would otherwise have been released to parole
under, shall remain on medical parole, until that earliest
possible parole date, at which time the parolee shall
commence serving the normal period of parole that they
would otherwise have been subject to.
This bill requires CDCR, at the time a prisoner is placed
on medical parole, to ensure that the prisoner has applied
for any federal entitlement programs for which the prisoner
is eligible, and has in his or her possession a discharge
medical summary, full medical records, parole medications,
and all property belonging to the prisoner that was under
the control of CDCR. Any additional records shall be sent
to the prisoner's forwarding address after release to
health care-related parole supervision.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2010-11 2011-12
2012-13 Fund
MOUs minor & absorbable, one-time workload
General
Administration minor &
absorbable BPH costs
General
potentially substantial prison cost
reduction
Federal waiver potentially significant DHCS workload
General
SUPPORT : (Verified 5/19/10)
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Federal Prison Health Care Receiver (source)
California Catholic Conference
Crestwood Behavioral Health, Inc.
Life Support Alliance
Service International Employee's Union, Local 1000
OPPOSITION : (Verified 5/19/10)
Taxpayers for Improving Public Safety
California Hospital Association
ARGUMENTS IN SUPPORT : According to the author's office:
Does it make sense for the state to pay for two
correctional officers to guard an inmate
24-hours-a-day as the inmate lies comatose or in a
permanent vegetative state in a hospital bed? Does it
make sense for CDCR to become a long-term care
facility for inmates with, for example, end-stage
Alzheimer's disease, whose dementia is so severe they
no longer understand that they are in prison?
California is paying tens of millions of dollars every
year to incarcerate these very high-cost inmates.
These offenders were sent to prison to protect society
and to punish them for their crimes. Because of their
medical condition, however, they are no longer a
threat and the ones being punished are the taxpayers.
California is not alone in facing this problem.
Across the country 36 states have implemented some
form of medical release to relieve them of the
crushing financial burden of keeping inmates in prison
whose medical condition has rendered their
incarceration no longer necessary. In 1997,
California first authorized the Secretary of CDCR or
the Parole Board to recommend to the sentencing judge
that an inmate's sentence be recalled due to terminal
illness. Ten years later that authority was extended
to cover cases of medical incapacitation. However,
last year only two such releases were approved and we
continue to incarcerate inmates who could, by any
rational standard, be released without posing a threat
to the public.
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SB 1399 addresses some of the issues that have been
identified as problematic in the current law. Rather
than requiring a sentence recall it creates an
alternative procedure that permits these inmates to be
placed on parole supervision under conditions
determined by the parole board, and allows the parole
to be revoked if for any reason the parolee's
condition changes and creates a danger to the public.
This medical parole will place public safety paramount
and stop needlessly punishing the taxpayers.
ARGUMENTS IN OPPOSITION : The California Hospital
Association (CHA) state that "Patients receiving medical
care in any setting, including acute-care hospitals and
post-acute settings such as long-term acute-care hospitals,
skilled-nursing facilities and home health care must be
under the care of a physician. While incarcerated, the
patient is under the care of a department physician,
regardless of where they reside. In order to be released
and to receive treatment at a medical facility, a community
physician who will agree to assume care of the
patient/parolee must be identified. CHA recommends that the
bill be amended to require that a receiving facility and
community physician be identified and agree to accept the
patient before medical parole is granted.
"The bill currently requires that the warden ensure that a
prisoner has applied for any federal entitlement programs
for which they are eligible at the time they are placed on
medical parole supervision. CHA requests that the bill be
amended to require a pre-release application process, and
the establishment of benefits as a condition for release to
medical parole. Such a process would increase the
likelihood of success of the medical parole program."
RJG:nl 5/20/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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