California Senate Bill SB1399 Amended / Bill

 BILL NUMBER: SB 1399AMENDED BILL TEXT AMENDED IN ASSEMBLY AUGUST 2, 2010 AMENDED IN ASSEMBLY JUNE 23, 2010 AMENDED IN SENATE MAY 20, 2010 AMENDED IN SENATE MAY 11, 2010 AMENDED IN SENATE APRIL 14, 2010 AMENDED IN SENATE APRIL 7, 2010 AMENDED IN SENATE APRIL 5, 2010 INTRODUCED BY Senator Leno (Principal coauthors: Assembly Members Bonnie Lowenthal and Ammiano) FEBRUARY 19, 2010 An act to  amend Section 3041 of, to  add Section 2065 to, and to add Title 2.3 (commencing with Section 3550) to Part 3 of, the Penal Code, relating to parole. LEGISLATIVE COUNSEL'S DIGEST SB 1399, as amended, Leno. Parole:  physically or cognitively debilitated or   medical parole: permanently medically  incapacitated inmates. Existing law generally regulates the granting and conditioning of parole, and places the duty to monitor parolees on the Division of Adult Parole Operations. Existing law, the Victim's Bill of Rights Act of 2008: Marsy's Law, as added by Proposition 9 at the November 4, 2008, statewide general election, provides that the Board of Parole Hearings or its successor in interest shall be the state's parole authority and shall be responsible for protecting victims' rights in the parole process. This bill would provide that, except as specified, any prisoner who the  chief medical officer at a Department of Corrections and Rehabilitation facility   head physician for the institution where the prisoner is located  determines,  based on the results of medical evaluations   as provided  ,  suffers from a significant and permanent condition, disease, or syndrome resulting in the prisoner being physically or cognitively debilitated or incapacitated   is permanently medically incapacitated with a medical condition that renders the prisoner permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour care, and that incapacitation did not exist at the time of sentencing,  shall be granted medical parole, if the Board of Parole Hearings determines that the conditions under which the prisoner would be released would not reasonably pose a threat to public safety. Those provisions would not apply to any prisoner sentenced to death or life in prison without possibility of parole or to any inmate who is serving a sentence for which parole pursuant to this bill is prohibited by any initiative statute. The bill would  require that parole placements and revocations pursuant to its provisions shall be made in accordance with   provide that these provisions shall not be construed to alter or diminish the rights conferred under  the Victim's Bill of Rights Act of 2008: Marsy's Law. The bill would require a physician employed by the Department of Corrections and Rehabilitation who is the primary care provider for a prisoner to recommend that  a   the  prisoner be referred to the Board of Parole Hearings for consideration for medical parole if the physician believes the prisoner meets the medical criteria for medical parole. The bill would provide that the  Board of Parole Hearings or the  Division of Adult Parole Operations shall have the authority to impose any reasonable conditions on prisoners subject to parole pursuant to this bill, including, but not limited to, the requirement that parolees submit to electronic monitoring. Existing law generally provides for the duties and functions of the Department of Corrections and Rehabilitation. Existing law provides that the State Department of Health Care Services is designated as the state agency with full power to supervise every phase of the administration of health care services and medical assistance for which grants-in-aid are received from the federal government or made by the state in order to secure full compliance with the applicable provisions of state and federal laws. This bill would require the Department of Corrections and Rehabilitation to, among other things, seek to enter into memoranda of understanding with the Social Security Administration and the State Department of Health Care Services  ,   in addition to certain other entities,  to facilitate prerelease agreements to help inmates initiate benefits claims, as specified. The bill would require the  state to pay the state share of Medi-Cal costs for inmates that have been granted medical parole and to assume responsibility as the payer of last resort for inmates who are granted medical parole who are not eligible for public insurance and who do not have the means to pay privately, as specified.   department to reimburse counties on a quarterly basis for the nonfederal share of Medi-Cal costs incurred for individuals who have been granted medical parole, and provide, or provide reimbursement for, services associated with public guardianship of medical parolees. The bill would authorize the department to provide supplemental reimbursements to providers, as specified. The bill would require the department to establish contracts with appropriate medical providers in cases where medical parolees are ineligible for Medi-Cal, as specified.  Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 2065 is added to the Penal Code, to read: 2065.  The   (a)     The  Department of Corrections and Rehabilitation shall complete all of the tasks associated with inmates granted medical parole pursuant to Section  3041 or  3550 that are specified in this section. Subdivisions  (b) to (d), inclusive,   (c) and (d)  shall apply only to the period of time that inmates are on medical parole.  (a)   (b)  The department shall seek to enter into memoranda of understanding with the Social Security Administration and the State Department of Health Care Services  , in addition to other federal, state, or county entities necessary  to facilitate prerelease agreements to help inmates initiate benefits claims.  (b) The state shall pay the state share of Medi-Cal costs for inmates who have been granted medical parole.   (c) The state shall assume responsibility as the payer of last resort for inmates who are granted medical parole who are not eligible for public insurance and who do not have independent means to pay privately. As the payer of last resort, the state shall reimburse providers for the medical treatment and long-term care costs of these medical parolees at rates no lower than the Medi-Cal rate until such time that these parolees are eligible for public insurance or have independent means to pay privately.   (d) The state shall reimburse counties for the costs associated with providing an inmate granted medical parole with a public guardian.   (c) This subdivision shall be implemented in a manner that is consistent with federal Medicaid law and regulations. The Director of Health Care Services shall seek any necessary federal approvals for the implementation of this subdivision. This subdivision shall be implemented only to the extent that federal approval, if necessary, is obtained. If an inmate is granted medical parole and found to be eligible for Medi-Cal, all of the following shall apply:   (1) The department shall reimburse counties on a quarterly basis for the nonfederal share of Medi-Cal costs incurred for individuals who have been granted medical parole.   (2) The department shall directly provide, or provide reimbursement for, services associated with public guardianship.   (3) The department may provide supplemental reimbursements to providers amounting to a total reimbursement that is allowable pursuant to Section 5023.5.   (4) The department and the State Department of Health Care Services shall work together to do all of the following:   (A) Maximize federal financial participation for service costs, administrative costs, and targeted case management costs incurred pursuant to this section.   (B) Determine whether medical parolees shall be exempt from mandatory enrollment in managed health care and determine the proper prior authorization process for individuals who have been granted medical parole.   (5) The department may submit retroactive Medi-Cal claims to the State Department of Health Care Services for allowable certified public expenditures incurred by public hospitals that have been reimbursed by the department.   (d) If an inmate is granted medical parole and found to be ineligible for Medi-Cal, all of the following shall apply:   (1) The department shall consider the income and assets of a medical parolee to determine whether the individual has the ability to pay for the cost of their medical care.   (2) If the individual is unable to pay the cost of their medical care, the department shall establish contracts with appropriate medical providers and pay costs that are allowable pursuant to Section 5023.5.   (3) The department shall retain the responsibility to perform utilization review and cost management functions that they currently perform under existing contracts with health care facilities.   (4) The department shall directly provide, or provide reimbursement for, services associated with public guardianship.   (e) The department and the State Department of Health Care Services may implement this section by means of all-facility letters, all-county letters, or similar instructions, in addition to adopting regulations, as necessary.   SEC. 2.  Section 3041 of the Penal Code is amended to read: 3041. (a) In the case of any inmate sentenced pursuant to any provision of law, other than Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, the Board of Parole Hearings shall meet with each inmate during the third year of incarceration for the purposes of reviewing the inmate's file, making recommendations, and documenting activities and conduct pertinent to granting or withholding postconviction credit. One year prior to the inmate's minimum eligible parole release date a panel of two or more commissioners or deputy commissioners shall again meet with the inmate and shall normally set a parole release date as provided in Section 3041.5. No more than one member of the panel shall be a deputy commissioner. In the event of a tie vote, the matter shall be referred for an en banc review of the record that was before the panel that rendered the tie vote. Upon en banc review, the board shall vote to either grant or deny parole and render a statement of decision. The en banc review shall be conducted pursuant to subdivision (e). The release date shall be set in a manner that will provide uniform terms for offenses of similar gravity and magnitude with respect to their threat to the public, and that will comply with the sentencing rules that the Judicial Council may issue and any sentencing information relevant to the setting of parole release dates. The board shall establish criteria for the setting of parole release dates and in doing so shall consider the number of victims of the crime for which the inmate was sentenced and other factors in mitigation or aggravation of the crime. At least one commissioner of the panel shall have been present at the last preceding meeting, unless it is not feasible to do so or where the last preceding meeting was the initial meeting. Any person on the hearing panel may request review of any decision regarding parole for an en banc hearing by the board. In case of a review, a majority vote in favor of parole by the board members participating in an en banc review is required to grant parole to any inmate. (b) The panel or the board, sitting en banc, shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting. After the effective date of this subdivision, any decision of the parole panel finding an inmate suitable for parole shall become final within 120 days of the date of the hearing. During that period, the board may review the panel's decision. The panel's decision shall become final pursuant to this subdivision unless the board finds that the panel made an error of law, or that the panel's decision was based on an error of fact, or that new information should be presented to the board, any of which when corrected or considered by the board has a substantial likelihood of resulting in a substantially different decision upon a rehearing. In making this determination, the board shall consult with the commissioners who conducted the parole consideration hearing. No decision of the parole panel shall be disapproved and referred for rehearing except by a majority vote of the board, sitting en banc, following a public meeting. (c) For the purpose of reviewing the suitability for parole of those inmates eligible for parole under prior law at a date earlier than that calculated under Section 1170.2, the board shall appoint panels of at least two persons to meet annually with each inmate until the time the person is released pursuant to proceedings or reaches the expiration of his or her term as calculated under Section 1170.2. (d) It is the intent of the Legislature that, during times when there is no backlog of inmates awaiting parole hearings, life parole consideration hearings, or life rescission hearings, hearings will be conducted by a panel of three or more members, the majority of whom shall be commissioners. The board shall report monthly on the number of cases where an inmate has not received a completed initial or subsequent parole consideration hearing within 30 days of the hearing date required by subdivision (a) of Section 3041.5 or paragraph (2) of subdivision (b) of Section 3041.5, unless the inmate has waived the right to those timeframes. That report shall be considered the backlog of cases for purposes of this section, and shall include information on the progress toward eliminating the backlog, and on the number of inmates who have waived their right to the above timeframes. The report shall be made public at a regularly scheduled meeting of the board and a written report shall be made available to the public and transmitted to the Legislature quarterly. (e) For purposes of this section, an en banc review by the board means a review conducted by a majority of commissioners holding office on the date the matter is heard by the board. An en banc review shall be conducted in compliance with the following: (1) The commissioners conducting the review shall consider the entire record of the hearing that resulted in the tie vote. (2) The review shall be limited to the record of the hearing. The record shall consist of the transcript or audiotape of the hearing, written or electronically recorded statements actually considered by the panel that produced the tie vote, and any other material actually considered by the panel. New evidence or comments shall not be considered in the en banc proceeding. (3) The board shall separately state reasons for its decision to grant or deny parole. (4) A commissioner who was involved in the tie vote shall be recused from consideration of the matter in the en banc review. (f) Notwithstanding any other provision of law, except as provided in subdivision (g), any prisoner sentenced to a term of imprisonment under Section 1168 who the chief medical officer at the institution where the prisoner is located determines, as provided in this section, 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 the Board of Parole Hearings determines that the conditions under which the prisoner would be released would not reasonably pose a threat to public safety. (g) Subdivision (f) shall not apply to any prisoner sentenced to death or life in prison without possibility of parole or to any inmate who is serving a sentence for which parole, pursuant to subdivision (f), is prohibited by any initiative statute. Parole placements and revocations pursuant to subdivision (f) shall be made in accordance with the Victim's Bill of Rights Act of 2008: Marsy's Law. (h) When a physician employed by the Department of Corrections and Rehabilitation who is the primary care provider for an inmate identifies an inmate that he or she believes meets the medical criteria for medical parole specified in subdivision (f), the primary care physician shall recommend to the chief medical officer of the institution where the prisoner is located that the prisoner be referred to the Board of Parole Hearings 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 the Board of Parole Hearings, 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. (i) Notwithstanding any other provisions of this section, 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 regarding whether the prisoner meets the criteria for medical parole as specified in subdivision (f) and, if the chief medical officer determines that the prisoner satisfies the criteria set forth in subdivision (f), he or she shall refer the matter to the Board of Parole Hearings. 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. (j) The Department of Corrections and Rehabilitation shall complete parole plans for inmates referred to the Board of Parole Hearings for medical parole consideration. The parole plans shall include, but not be limited to, the inmate's plan for residency and medical care. (k) Notwithstanding any other law, medical parole hearings shall be conducted by two-person panels consisting of at least one commissioner. In the event of a tie vote, the matter shall be referred to the full board for a decision. (l) Upon receiving a recommendation from a chief medical officer of the department for a prisoner to be granted medical parole pursuant to subdivision (h) or (i), the board, as specified in subdivision (k), 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 written findings related thereto. (m) The Division of Adult Parole Operations shall have the authority to impose any reasonable conditions on prisoners subject to medical parole supervision pursuant to subdivision (f), including, but not limited to, the requirement that the parolee submit to electronic monitoring. As a further condition of medical parole, pursuant to subdivision (f), the parolee may be required to submit to an examination by a physician for the purpose of diagnosing his or her current medical condition. In the event such an examination takes place, a report of the examination and diagnosis shall be submitted to the board by the examining physician. If the board determines that the person's medical condition has substantially improved and that the person poses a threat to public safety, the board may revoke the parole and return the person to the custody of the department. (1) Notwithstanding any other provision of law establishing maximum periods for parole, 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, pursuant to subdivision (f), until that earliest possible parole date, at which time the provisions of paragraph (2) shall apply. (2) At the expiration of the period described in paragraph (1), the parolee shall commence serving that period of parole provided by, and under all other provisions of this chapter. (n) The Department of Corrections and Rehabilitation shall, at the time a prisoner is placed on medical parole supervision pursuant to subdivision (f), 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 the department. Any additional records shall be sent to the prisoner's forwarding address after release to health care-related parole supervision.   SEC. 3.   SEC. 2.  Title 2.3 (commencing with Section 3550) is added to Part 3 of the Penal Code, to read: TITLE 2.3. MEDICAL PAROLE 3550. (a) Notwithstanding any other provision of law, except as provided in subdivision (b), any prisoner  sentenced to a term of imprisonment under Section 1170  who the  chief medical officer   head physician  of the institution where the prisoner is located determines, as provided in this section,  suffers from a significant and permanent condition, disease, or syndrome resulting in the prisoner being physically or cognitively debilitated or incapacitated shall be   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 care, and that incapacitation did not exist at the time of sentencing, shall be  granted medical parole if the Board of Parole Hearings determines that the conditions under which the prisoner would be released would not reasonably pose a threat to public safety. (b) Subdivision (a) shall not apply to any prisoner sentenced to death or life in prison without possibility of parole or to any inmate who is serving a sentence for which parole, pursuant to subdivision (a), is prohibited by any initiative statute.  Parole placements and revocations pursuant to subdivision (a) shall be made in accordance with   The provisions of this section shall not be construed to alter or diminish the rights conferred under  the Victim's Bill of Rights Act of 2008: Marsy' s Law. (c) When a physician employed by the Department of Corrections and Rehabilitation who is the primary care provider for an inmate identifies an inmate that he or she believes meets the medical criteria for medical parole specified in subdivision (a) the primary care physician shall recommend to the  chief medical officer   head physician  of the institution where the prisoner is located that the prisoner be referred to the Board of Parole Hearings for consideration for medical parole. Within 30 days of receiving that recommendation, if the  chief medical officer   head physician of the institution  concurs in the recommendation of the primary care physician, he or she shall refer the matter to the Board of Parole Hearings  using a standardized form and format developed by the department  , and if the  chief medical officer   head physician of the institution  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. (d) Notwithstanding any other provisions of this section, the prisoner or his or her family member or designee may independently request consideration for medical parole by contacting the  chief medical officer   head physician  at the prison or the  secretary   department . Within 30 days of receiving the request, the  chief medical officer   head physician of the institution  shall, in consultation with the prisoner's primary care physician, make a determination regarding whether the prisoner meets the criteria for medical parole as specified in subdivision (a) and, if the  chief medical officer   head physician of the institution  determines that the prisoner satisfies the criteria set forth in subdivision (a), he or she shall refer the matter to the Board of Parole Hearings  using a standardized form and format developed by the department  . If the  chief medical officer   head physician of the institution  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. (e) The Department of Corrections and Rehabilitation shall complete parole plans for inmates referred to the Board of Parole Hearings for medical parole consideration. The parole plans shall include, but not be limited to, the inmate's plan for residency and medical care. (f) Notwithstanding any other law, medical parole hearings shall be conducted by two-person panels consisting of at least one commissioner. In the event of a tie vote, the matter shall be referred to the full board for a decision.  Medical parole hearings may be heard in absentia.  (g) Upon receiving a recommendation from  a chief medical officer of the department for a   the head physician of the institution where a prisoner is located for the  prisoner to be granted medical parole pursuant to subdivision (c) or (d), the board, as specified in subdivision (f), 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 written findings related thereto. (h) Notwithstanding any other provision of law, the  board or the  Division of Adult Parole Operations shall have the authority to impose any reasonable conditions on prisoners subject to medical parole supervision pursuant to subdivision (a), including, but not limited to, the requirement that the parolee submit to electronic monitoring. As a further condition of medical parole, pursuant to subdivision (a), the parolee may be required to submit to an examination by a physician  selected by the board  for the purpose of diagnosing  their   the parolee's  current medical condition. In the event such an examination takes place, a report of the examination and diagnosis shall be submitted to the board by the examining physician. If the board determines  , based on that medical examination,  that the person's medical condition has  substantially improved and that the person poses a threat to public safety, the board may revoke the parole and   improved to the extent that the person no   longer qualifies for medical   parole, the board shall  return the person to the custody of the department. (1) Notwithstanding any other provision of law establishing maximum periods for parole, a prisoner  sentenced to a determinate term who is  placed on medical parole supervision prior to the earliest possible  parole date that the prisoner would otherwise have been released to parole under, shall   release date and who remains eligible for medical parole, shall  remain on medical parole, pursuant to subdivision (a), until that earliest possible  parole   release  date, at which time the  provisions of paragraph (2) shall apply   parolee shall commence serving that period of parole provided by, and under the provisions of, Chapter 8 (commencing with Section 3000) of Title 1  .  (2) At the expiration of the period described in paragraph (1), the parolee shall commence serving that period of parole provided by, and under all other provisions of, Chapter 8 (commencing with Section 3000) of Title 1.   (2) Notwithstanding any other provisions of law establishing maximum periods for parole, a prisoner sentenced to an indeterminate term who is placed on medical parole supervision prior to the prisoner's minimum eligible parole date, and who remains eligible for medical parole, shall remain on medical parole pursuant to subdivision (a) until that minimum eligible parole date, at which time the parolee shall be eligible for parole consideration under all other provisions of Chapter 8 (commencing with Section 3000) of Title 1.  (i) The Department of Corrections and Rehabilitation shall, at the time a prisoner is placed on medical parole supervision pursuant to subdivision (a), 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 the department. Any additional records shall be sent to the prisoner's forwarding address after release to health care-related parole supervision.  (j) The provisions for medical parole set forth in this title shall not affect an inmate's eligibility for any other form of parole or release provided by law.