BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1079 (Rubio) 9
As Amended March 20, 2012
Hearing date: April 24, 2012
Penal Code
SM:mc
MEDICAL CARE OF INMATES
HISTORY
Source: Author
Prior Legislation: None
Support: Unknown
Opposition:American Civil Liberties Union; Equality California;
Prison Law Office; Transgender Law Center; Friends
Committee on Legislation; California Psychological
Association; Lambda Legal; Transgender, GenderVariant,
Intersex Justice; National Center for Lesbian Rights
KEY ISSUES
SHOULD THE EXISTING REGULATIONS BE CODIFIED REGARDING WHAT MEDICAL
PROCEDURES ARE NOT MEDICALLY NECESSARY AND THEREFORE MAY NOT BE
PROVIDED TO INMATES AT THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND
REHABILITATION, EXCEPT AS SPECIFIED?
SHOULD TREATMENT FOR SEXUAL DYSFUNCTION, FERTILITY, OR INFERTILITY,
GENDER REASSIGNMENT SURGERY, AND WEIGHT REDUCTION SURGERY BE ADDED
TO THE LIST OF TREATMENTS THAT ARE NOT MEDICALLY NECESSARY AND
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THEREFORE MAY NOT BE PROVIDED TO INMATES, EXCEPT AS SPECIFIED?
PURPOSE
The purpose of this bill is to (1) codify the existing
regulations regarding what medical procedures are not medically
necessary and thus may not be provided to inmates at the
California Department of Corrections and Rehabilitation (CDCR),
except as specified; and (2) add to the list of treatments that
are not medically necessary and may not be provided to inmates,
except as specified, treatment for sexual dysfunction,
fertility, infertility, gender reassignment surgery, or weight
reduction surgery.
Current law provides that CDCR shall only provide medical
services for inmates which are based on medical necessity and
supported by outcome data as effective medical care. In the
absence of available outcome data for a specific case, treatment
will be based on the judgment of the physician that the
treatment is considered effective for the purpose intended and
is supported by diagnostic information and consultations with
appropriate specialists. Treatments for conditions which might
otherwise be excluded may be allowed pursuant to section
3350.1(d).
For the purposes of this article, the following definitions
apply:
"Medically Necessary" means health care services that
are determined by the attending physician to be reasonable
and necessary to protect life, prevent significant illness
or disability, or alleviate severe pain, and are supported
by health outcome data as being effective medical care.
"Outcome Study" means the definition, collection and
analysis of comparable data based on variations in
treatment concerning patient health assessment for purposes
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of improving outcomes and identifying cost-effective
alternatives.
"Outcome Data" mean statistics such as diagnoses,
procedures, discharge status, length of hospital stay,
morbidity and mortality of patients that are collected and
evaluated using science-based methodologies and expert
clinical judgment for purposes of outcome studies.
"Severe pain" means a degree of discomfort that
significantly disables the patient from reasonable
independent function.
"Significant illness and disability" means any medical
condition that causes or may cause, if left untreated, a
severe limitation of function or ability to perform the
daily activities of life or that may cause premature death.
(Title 15 Cal. Code of Regs. � 3350.)
Current law provides that treatment refers to attempted curative
treatment and does not preclude palliative therapies to
alleviate serious debilitating conditions such as pain
management and nutritional support. Treatment shall not be
provided for the following conditions:
Conditions that improve on their own without treatment.
Examples include, but are not limited to:
o Common cold.
o Mononucleosis.
o Viral hepatitis A.
o Viral pharyngitis.
o Mild sprains.
Conditions that are not readily amenable to treatment,
including, but not limited to, those which may be made
worse by treatment with conventional medication or surgery,
and those that are so advanced in the disease process that
the outcome would not change with existing conventional or
heroic treatment regimens. Examples include, but are not
limited to:
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o Multiple organ transplants.
o Temporomandibular joint dysfunction.
o Grossly metastatic cancer.
Conditions that are cosmetic. Examples include, but are
not limited to:
o Removal of tattoos.
o Removal of nontoxic goiter.
o Breast reduction or enlargement.
o Penile implants.
Surgery not medically necessary shall not be provided.
Examples include, but are not limited to:
o Castration.
o Vaginoplasty (except for cystocele or
rectocele).
o Vasectomy.
o Tubal ligation.
Services that have no established outcome on morbidity
or improved mortality for acute health conditions shall not
be provided. Examples include, but are not limited to:
o Acupuncture.
o Orthoptics.
o Pleoptics.
Treatment for those conditions that are excluded within
these regulations may be provided in cases where all of the
following criteria are met:
o The inmate's attending physician or dentist
prescribes the treatment.
o The service is approved by the medical
authorization review committee, or the dental
authorization review committee, and the health care
review committee. The decision of the review
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committee, as applicable, to approve an otherwise
excluded service shall be based on:
� Available health and dental care
outcome data supporting the effectiveness of the
services as medical or dental treatment.
� Other factors, such as:
Coexisting medical or
dental problems.
Acuity.
Length of the inmate's
sentence.
Availability of the
service.
Cost. (15 Cal. Code of
Regs. � 3350.1.)
This bill would codify the regulations detailed above and would
add to the list of procedures deemed not medically necessary
which shall not be provided:
Treatment for sexual dysfunction, fertility, or
infertility.
Gender reassignment surgery.
Weight reduction surgery.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
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penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
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to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011 (133,016
inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
The California Department of Corrections and
Rehabilitation (CDCR) currently has existing
regulations specifying medically appropriate
treatments based on medical necessity and outcome
data. These regulations can be found in Cal. Admin.
Code title 15 Section 3350. However, there are no
statutes to hold the department accountable for
providing medically unnecessary care.
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In addition, California inmate Lyralisa Stevens-in the
midst of serving a 50 year sentence for murder-sued
the state for failing to provide a gender reassignment
surgery, an operation that can cost up to $50,000. In
September 2011, the 1st District Court of Appeal in
San Francisco denied her request, but only after two
years of expensive litigation.
This bill, as proposed to be amended, would hold the
CDCR accountable by clarifying into law the medically
appropriate treatments for inmates. It would further
expand those regulations to include three additional
procedures: gender reassignment surgery, weight
reduction surgery and treatment for sexual
dysfunction, fertility, or infertility. Finally, this
bill would eliminate costly, unnecessary litigation
between the state and inmates regarding acceptable
medical procedures.
2. The Effect of Codifying Existing Regulations
One effect of this bill would be to place in statute definitions
of what treatments are considered to be medically unnecessary
and which CDCR will therefore be not provide to inmates.
Currently, those definitions are contained in the Department's
regulations. Regulations derive their authority from statute
and have the force of law, but may be changed by the Department
making application to the Office of Administrative Law. This is
much less difficult than the legislative process, allowing the
Department more flexibility to adapt to new or changing
circumstances. Most importantly, amending regulations which
govern an executive branch agency is an executive branch
function and does not require action by the Legislature.
Therefore, placing these regulatory rules into statute would
make any future changes to the definition of what is considered
medically necessary a matter for the Legislature to determine.
Members may wish to consider whether these decisions should be
made by the affected Department, based on the advice of its
medical staff, or by members of the Legislature. If the
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Legislature is to decide what constitutes a medical necessity
and which specific medical treatments should be prohibited to
state prison inmates, will this cause the issue to become unduly
politicized? Could this become a perennial issue, with the
Legislature being asked to determine in successive pieces of
legislation whether one medical procedure or another should be
prohibited to inmates?
SHOULD THE LEGISLATURE DETERMINE WHAT MEDICAL TREATMENTS WILL BE
PROVIDED TO INMATES?
3. Banning Specific Medical Treatments
In addition to codifying these regulations, this bill would
modify the current regulations by specifically providing that
the following treatments are medically unnecessary:
Treatment for sexual dysfunction, fertility, or
infertility.
Gender reassignment surgery.
Weight reduction surgery.
At present, CDCR does not provide gender reassignment surgery
for inmates. However, it does provide inmates suffering from
Gender Identity Disorder (GID) with hormone therapy where the
inmate began that therapy before entering prison. Recently an
inmate in California unsuccessfully sued to force CDCR to
provide gender reassignment surgery. (Stevens (Lyralisa Lavena)
on Habeas Corpus., 2011 Cal. LEXIS 13191 (Cal. Dec. 21, 2011).)
According to the author, one purpose of this bill is to help
prevent such lawsuits in the future. However, because the issue
involved in denying this treatment to inmates is whether this
violates the federal Constitution's guarantee against cruel and
unusual punishment, this is ultimately an issue that will be
decided by the courts. This was made clear when the Federal
Court of Appeal for the Seventh Circuit recently found a
Wisconsin statute that prohibited both hormone therapy and
gender reassignment surgery for GID to be an unconstitutional
violation of the ban on cruel and unusual punishments:
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The legislators who approved �the Inmate Sex Change
Prevention Act] may have honestly believed they were
improving prison security, but courts "retain� ] an
independent constitutional duty to review factual
findings where constitutional rights are at stake."
(Fields v. Smith, 653 F.3d 550, 558 (7th Cir. Wis.
2011), citation omitted.)
In Fields, supra, the court found that GID is a serious medical
condition requiring adequate treatment. "Surely, had the
Wisconsin legislature passed a law that DOC inmates with cancer
must be treated only with therapy and pain killers, this court
would have no trouble concluding that the law was
unconstitutional. Refusing to provide effective treatment for a
serious medical condition serves no valid penological purpose
and amounts to torture." (Fields v. Smith, supra, 653 F.3d at
556.) Because the medical aspects of this disorder are not
widely known, the Court's review of the District Court's
findings are included here in some detail:
Plaintiffs' experts testified that, collectively, they
had treated thousands of patients with GID and
published numerous peer-reviewed articles and books on
the subject. One expert had specifically studied
transsexuals in the correctional setting. These
experts explained that GID can cause an acute sense
that a person's body does not match his or her gender
identity. Even before seeking treatment and from an
early age, patients will experience this dysphoria and
may attempt to conform their appearance and behavior
to the gender with which they identify.
The feelings of dysphoria can vary in intensity. Some
patients are able to manage the discomfort, while
others become unable to function without taking steps
to correct the disorder. A person with GID often
experiences severe anxiety, depression, and other
psychological disorders. Those with GID may attempt
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to commit suicide or to mutilate their own genitals.
The accepted standards of care dictate a gradual
approach to treatment beginning with psychotherapy and
real life experience living as the opposite gender.
For some number of patients, this treatment will be
effective in controlling feelings of dysphoria. When
the condition is more severe, a doctor can prescribe
hormones, which have the effect of relieving the
psychological distress. Hormones also have physical
effects on the body. For example, males may
experience breast development, relocation of body fat,
and softening of the skin. In the most severe cases,
sexual reassignment surgery may be appropriate. But
often the use of hormones will be sufficient to
control the disorder.
When hormones are withdrawn from a patient who has
been receiving hormone treatment, severe complications
may arise. The dysphoria and associated psychological
symptoms may resurface in more acute form. In
addition, there may be severe physical effects such as
muscle wasting, high blood pressure, and neurological
complications. All three plaintiffs in this case
experienced some of these effects when DOC doctors
discontinued their treatment following the passage of
Act 105.
Plaintiffs also called Dr. David Burnett, the DOC's
Medical Director, and Dr. Kevin Kallas, the DOC Mental
Health Director, to testify at trial. These officials
explained that, prior to the enactment of Act 105,
hormone therapy had been prescribed to some DOC
inmates, including plaintiffs. DOC policies did not
permit inmates to receive sex reassignment surgery.
Drs. Kallas and Burnett served on a committee of DOC
officials that evaluated whether hormone therapy was
medically necessary for any particular inmate.
Inmates are not permitted to seek any medical
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treatment outside the prison, regardless of their
ability to pay. The doctors testified that they could
think of no other state law or policy, besides Act
105, that prohibits prison doctors from providing
inmates with medically necessary treatment. (Fields
v. Smith, 653 F.3d 550, 553-554 (7th Cir. 2011),
footnotes omitted.)
As noted above, the Wisconsin statute banned the provision of
either hormone therapy or gender reassignment surgery to
inmates. The Court of Appeal upheld the trial court's order
which struck down that law in its entirety stating:
The district court also specifically referenced its
prior finding that the constitutional violation
stemmed from "removing 'even the consideration of
hormones or surgery.'" We agree. (Fields v. Smith,
supra, at 559 (7th Cir. 2011).)
Whether the federal courts in the 9th Circuit will agree with
the 7th Circuit is unknown.
Whether this bill is enacted, however, is unlikely to prevent
the matter from being litigated.
4. Argument in Opposition
The Prison Law Office states:
The U. S. District Court required the CDCR to
relinquish management of the prison system's medical
care program to a Federal Receiver approximately six
years ago. The Court recently directed the parties in
that action, Plata v. Brown, to meet and confer
regarding planning for the post-Receivership phase of
the case. No date for the Receivership's termination
has been set, however. The Legislature should defer
action on this issue until the Federal Receivership is
resolved.
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SB 1079 would bar California state prisoners from
receiving specified types of medical care deemed by
the Legislature to be "not medically necessary" and
would include treatment for pain only to "alleviate
severe pain." Among the conditions for which
treatment would be barred is temporomandibular joint
dysfunction, a syndrome "characterized by chronic or
acute musculoskeletal pain with dysfunction of the
masticatory system."1 According to medical literature,
surgery can be an effective option for patients who do
not respond to medical management and have significant
internal joint derangement. Id. Denial of this
treatment for appropriate patients may violate the
Eighth Amendment.
Additionally, the bill deems "medically unnecessary"
the provision of several types of treatment regularly
prescribed by medical doctors to effectuate gender
transition as a treatment for transgender individuals
diagnosed with gender dysphoria or gender identity
disorder (GID). All of the leading medical
associations-including the American Medical
Association, the American Psychological Association,
the American Academy of Family Physicians, and the
American Congress of Obstetricians and
Gynecologists-have recognized that gender transition
can be a crucial element of treatment for gender
dysphoria.2 The National Commission on Correctional
Health Care issued a position statement in 2010
stating that "The health risks of overlooking the
particular needs of transgender inmates are so severe
that acknowledgment of the problem and policies that
assure appropriate and responsible provision of health
care are needed." The statement advises that
"�d]etermination of treatment necessary for
transgender patients should be on a case-by-case
basis" and that "there should be no blanket
administrative or other policies that restrict
specific medical treatments for transgender people."3
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SB 1079 would prevent physicians treating CDCR
patients from determining whether a medically
recognized procedure is medically necessary for his or
her patient. Such a bar would violate the principle
that, under the Eighth Amendment, decisions regarding
treatment for a prisoners' serious medical need must
be based upon the needs of the individual patient,
rather than a blanket rule applied to all prisoners.4
Moreover, the Seventh Circuit Court of Appeals in
August 2011 held unconstitutional a very similar
Wisconsin statute known as the "Inmate Sex Change
Prevention Act." The appeals court concluded that
"�r]efusing to provide effective treatment for a
serious medical condition serves no valid penological
purpose and amounts to torture."5 As this proposed law
is in all relevant aspects indistinguishable from the
unconstitutional Wisconsin statute, it would similarly
violate the U.S. Constitution.
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1
http://www.uptodate.com/contents/temporomandibular-joint-dysfunction-syndrome?source=search_result&search=temperomand
ibular+joint+dysfunction&selectedTitle=1~150.
2 See Lambda Legal, Professional Organization Statements
Supporting Transgender People in Health Care,
http://www.lambdalegal.org/sites/default/files/publications/
downloads/fs_professional-org-statements-supporting-trans-he
alth_1.pdf (compiling statements by medical associations).
3 National Commission on Correctional Health Care,
Position Statement: Transgender Health Care in Correctional
Settings (adopted Oct. 18, 2009). Available at
http://ncchc.org/resources/statements/transgender.html.
4 Allard v. Gomez (9th Cir. 2001) 9 Fed. Appx. 793, 795.
5 Fields v. Smith, 653 F.3d 550, 556 (7th Cir. 2011).