California now limits medical parole to those on ventilators

Steve Fama, an attorney with the nonprofit Prison Law Office, said the court-appointed federal office that controls health care in California prisons told him the change could affect about 70 of the 210 inmates 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."

The policy shift comes as the state has been reducing its prison population due to the coronavirus pandemic, as well as a more general push from voters and legislators to free older and infirm inmates 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 Attorney General 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 inmates 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 inmates 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." Health care provided to offenders at the current facilities is checked by the federal receiver's office and several outside agencies.

The policy change came after just one facility in Los Angeles County was informed following an inspection ending in early July that it was violating its licensing requirements, but state officials said the federal agency told them it will be enforced at all skilled nursing facilities.

The federal agency is citing a 2016 guidance memo that it says reiterated conditions under which parolees may remain in nursing facilities.

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. Inmates 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 prisoners 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.

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 tiny fraction of the nearly 100,000 inmates currently imprisoned in the most populous state.

California Assemblyman Phil Ting, who heads the powerful Assembly Budget Committee, is carrying  a bill  to expand the criteria and create an easier process for placing incapacitated inmates in community health care 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 at each prison made up of health care providers. It also would keep patients in outside facilities even if they no longer meet the criteria for medical parole.

It was originally 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.