California now limits medical parole to those on ventilators
SACRAMENTO — A new California policy could send dozens of quadriplegic, paraplegic or otherwise permanently incapacitated incarcerated people from nursing homes back to state prisons.
Prison officials say a change in federal rules led them to limit medical parole to those so ill they are hooked to ventilators to breathe, meaning their movement is so limited they are not a public danger. The state previously included a much broader range of permanent incapacities allowing people who were incarcerated to be cared for in nursing homes outside prison walls.
Steve Fama, an attorney with the nonprofit Prison Law Office, said the court-appointed federal office that controls healthcare in California prisons told him the change could affect about 70 of the 210 people approved for medical parole under the current system, started in 2014.
“It’d be an awful shame if those people were returned to prison,” Fama said. “Those patients have been proven not to need a prison setting given their medical conditions.”
As the COVID-19 pandemic has ravaged California prisons, some families say that officials have failed to inform them when their loved ones have been hospitalized.
The policy shift comes as the state has been reducing its prison population because of the pandemic, as well as a more general push from voters and legislators to free older and infirm incarcerated people who are less likely to commit new crimes.
California officials say they have no choice under a new approach to the enforcement of federal licensing requirements for nursing homes by the Centers for Medicare & Medicaid Services. That’s a division of the U.S. Department of Health and Human Services headed by former California Atty. Gen. Xavier Becerra.
The federal agency has taken the position that parole officials can’t impose any conditions on inmates in community medical facilities, the state says. That includes a rule that they not leave except with permission from their parole agent — a restriction state officials said is necessary to ensure public safety.
In response, only those on ventilators are being placed in the community, corrections department spokeswoman Dana Simas said.
Federal officials disagree that revoking medical parole and putting incapacitated inmates back behind bars is the state’s only option.
They say California could leave the people in nursing homes with no prohibition on their leaving, or put them in facilities that aren’t regulated by the federal government — “assisted living or non-certified skilled facilities that a state may wish to license to serve parolees who have additional health care needs.”
Simas responded that sending offenders to such non-certified facilities “would require establishing an entirely new program to monitor and audit the care provided at these facilities.” Healthcare provided to offenders at the current facilities is checked by the federal receiver’s office and several outside agencies.
The state’s decision affects incapacitated inmates who are deemed to still need some sort of supervision, but it does not affect compassionate releases that are approved by a court and have no strings attached. Incarcerated individuals can seek compassionate release if they are diagnosed with an illness that is deemed likely to cause their death in 12 months or less and is a medical condition they did not have when sentenced.
Several other states have had to address the same issue, though federal officials couldn’t immediately say which, when or how they complied.
Nearly every state allows people who are in prison with serious medical conditions to be released on what’s generally called medical parole, according to the National Conference of State Legislatures. But the organization said in a 2018 review that such laws are rarely used.
California’s decision to close the prison in Susanville rocked the town, where the consequences could be dire for residents and businesses that depend on the economics of incarceration.
Researchers from the Vera Institute of Justice, a national nonprofit research and advocacy group, said barriers include limited eligibility criteria and the difficulty in applying for release. Their 2017 report found that Alabama had released 39 people on medical parole over eight years, while Texas approved 86 out of more than 2,000 requests in 2016. The legislative organization said those states had some of the highest rates of release.
California eclipsed those releases by approving 210 medical paroles and denying 110 requests since 2014, though that is a small fraction of the nearly 100,000 people currently imprisoned in the most populous state.
Assemblyman Phil Ting (D-San Francisco), who heads California’s powerful Assembly Budget Committee, is proposing a bill to expand the criteria and create an easier process for placing incapacitated inmates in community healthcare facilities.
“Limiting it to only those on ventilators is arbitrary and not based on medical science,” he said. “Public safety is not improved by taking such an unnecessarily narrow view of this policy.”
Ting’s bill would include those who qualify for hospice care or have debilitating pain or a debilitating disease. Instead of leaving the decision to the state parole board, which is composed largely of law enforcement officials, it would create a new medical parole panel made up of healthcare providers at each prison. It also would keep patients in outside facilities even if they no longer meet the criteria for medical parole.
The bill originally was carried by former Assemblyman Rob Bonta, now the state’s attorney general, and cleared the Assembly before stalling in the Senate last summer. Ting plans to try again next year.
Those sentenced to death, life without parole or for murdering police officers are not eligible under California law, and that would not change under Ting’s proposal.
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