Kern County Hospital Auth. v. Dept. of Corrections & Rehabilitation ( 2023 )

Filed 5/26/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
KERN COUNTY HOSPITAL
AUTHORITY, F083743
Plaintiff and Respondent, (Super. Ct. No. BCV-20-102979)
v.
OPINION
DEPARTMENT OF CORRECTIONS AND
REHABILITATION et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Kern County. David R.
Lampe, Judge.
Rob Bonta, Attorney General, Phillip J. Lindsay, Assistant Attorney General,
Maria G. Chan and Van Kamberian, Deputy Attorneys General, for Defendants and
Appellants.
Zimmer & Melton, T. Mark Smith and Justin L. Thomas for Plaintiff and
Respondent.
-ooOoo-
As four medically comprised inmates who required skilled nursing care were
approaching their parole dates, the California Department of Corrections and
Rehabilitation (CDCR) unsuccessfully attempted to locate skilled nursing facilities that
would accept them after they were paroled. When their parole dates arrived, the CDCR,
believing it had no other option, paroled them to Kern County and transported them to the
emergency department at Kern Medical Center (KMC), a licensed general acute care
hospital. Kern County Hospital Authority (Hospital Authority), which operates KMC,
sought a peremptory writ of mandate and injunction against the CDCR and its Secretary,
Kathleen Allison (collectively the Department or CDCR). The trial court granted the writ
of mandate, which enjoins the Department from transferring additional parolees from any
licensed CDCR medical facility to Hospital Authority’s facilities without arrangements
being made in advance for admission, absent a medical emergency.
The Department appeals, arguing it does not have a ministerial duty to obtain
Hospital Authority’s express consent before transporting parolees to KMC’s emergency
department. It further argues the injunction impermissibly requires it to imprison these
parolees beyond their release dates and interferes with its parole-placement decisions.
Although we find the injunction is overbroad and must be modified, we otherwise affirm
the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 2016, the responsibility for placement of medically compromised parolees
shifted from the Division of Adult Institutions to a different unit at the California
Correctional Health Care Services (CCHCS). When attempting to place soon-to-be-
paroled inmates who are medically compromised or need assistance with activities of
daily living, the Department and CCHCS go through a utilization management process
which includes contacting the inmates’ families, the Veteran’s Administration (if
applicable), and skilled nursing facilities in the inmate’s county of last legal residence.
If the Department and CCHCS staff are unable to find a skilled nursing facility
willing to accept the inmate in the inmate’s county of last residence, a Department
attorney notifies county counsel and requests collaboration on a placement, while staff
2.
determine whether there is a safety net hospital in that county. Staff locate available
safety net hospitals by reviewing the Safety Net Institute’s website; not every county has
a safety net hospital. 1 Safety net hospitals are hospitals that, by mission or mandate,
provide care to a substantial share of vulnerable patients regardless of their ability to pay
and provide medical screening and appropriate care as needed. If a safety net hospital is
not located in the parolee’s county of last legal residence, the Department looks to the
safety net hospital closest to that county using the list of safety net hospitals from the
Safety Net Institute’s website.
The Safety Net Institute is a trade organization which, according to CCHCS’s
Deputy Medical Executive of Clinical Operations, is a collective of 21 hospitals that
receive funding for the indigent population. While the deputy medical executive
acknowledged safety net hospitals most likely were not the only hospitals in California
that received funding to care for indigent people, she was not familiar with the various
hospital networks and their funding. The Department does not attempt to identify
hospitals that receive public funds for the care of indigents; rather, it is the Department’s
practice to find safety net hospitals that already had been identified to serve the indigent
population.
When parolees are sent to a medical facility, including a safety net hospital, the
Department’s practice is to send the parolee’s medical history to the facility in advance of
the parolee’s arrival, and to inform the receiving facility of the date and time the parolee
will be arriving. Transportation to a receiving facility depends on the parolee’s level of
care.
1 There is neither a written policy requiring placement of parolees in safety net
hospitals, nor a state law or regulation that lists such hospitals; rather, it is the
Department’s practice to attempt to place parolees in them. The guidance to utilize safety
net hospitals came from the Department’s legal department and other executive entities.
3.
The Transfers to KMC
Between August and December 2020, four medically compromised inmates were
paroled from prison to Kern County. 2 These parolees, who had been receiving inpatient
medical care in prison, 3 had medical conditions requiring skilled nursing care, which the
Department determined was the appropriate level of care. 4 They needed help with
activities of daily living and were unable to care for themselves. While their conditions
would become emergent without continuing ongoing medical care, they did not have
acute medical needs.
Only one of the four parolees had been a Kern County resident before
incarceration. Before paroling the inmate from Kern County, staff contacted 17 facilities
in Kern County unsuccessfully seeking a skilled nursing placement. 5 A Department
attorney emailed Kern County Counsel for placement assistance at KMC based on the
presumption County Counsel represented KMC. County Counsel responded that KMC
was not county owned, and Kern County could not receive indigent patients from the
Department as it did not own or control any hospitals or skilled nursing facilities. County
Counsel asked the attorney to “please discontinue your emailing of the attorneys at the
Office of Kern County Counsel with notices of deposit of CDCR’s indigent releases.”
2 Each of the four parolees were required to register as sex offenders pursuant to
Penal Code section 290.
3 Three of the parolees were housed at the California Health Care Facility, which is
a prison that contains a licensed health facility known as a Correctional Treatment
Center. The fourth was on medical parole and housed at a skilled nursing facility in
Sacramento.
4 Skilled nursing facilities can provide care that acute-care facilities cannot,
including rehabilitation, occupational, educational, and life-living services.
5 Department staff and CCHCS staff are collectively referred to as staff. CCHCS is
not a party to this action.
4.
A second parolee, whose last legal residence had been in Fresno County, was
released after being on expanded medical parole, which is an alternate form of custody
for medically incapacitated inmates who require 24-hour medical care and are approved
to serve their sentence outside of a prison. (Pen. Code, § 3550, subd. (a).) 6 The facility
where this individual was housed on medical parole declined the Department’s request to
accept him on regular parole. Staff contacted 12 skilled nursing facilities in Fresno
County but could not secure a bed. A Department attorney contacted Fresno County
Counsel for placement assistance, but was advised to contact the Fresno County
probation department because such matters did not usually come through the County
Counsel’s office.
As for the other two parolees, whose last legal residences had been in Tulare
County, staff contacted facilities in Tulare County – 15 facilities for one parolee and
18 facilities for the other – unsuccessfully seeking a skilled nursing placement. Tulare
County Counsel was contacted for placement assistance, but apparently no response was
received.
Unable to find a placement for these parolees at skilled nursing facilities, staff
looked to place the parolees in the safety net hospital in the parolee’s county of last legal
residence or, if that county did not have a safety net hospital, in the closest county with
such a hospital, to ensure they received the necessary care as required by law. KMC was
determined to be the closest safety net hospital to the parolees’ counties of last legal
residence. 7 When KMC was notified one of the parolees whose last legal residence was
6 Medical parole provides for the return to prison if the inmate’s condition improves
and does not affect eligibility for other forms of parole or release. (Pen. Code, § 3550,
subds. (h) & (j).)
7 At the time, staff believed Fresno County did not have a safety net hospital based
on a review of the Safety Net Institute’s website. The CCHCS Deputy Medical
Executive of Clinical Operations stated in a declaration that a later review of Fresno
Community Regional Medical Center’s website showed CRMC is a safety net health care
provider and while staff had no readily available way to determine this or the extent of
5.
in Tulare County would be taken to its facility as the closest safety net hospital to the
parolees’ last residence, KMC’s in-house counsel responded: “So there is no need to
coordinate with our physicians as we do not have access to long term care at our facility.
You can just dump him at the [emergency department] if you like. We will follow
EMTALA [(Emergency Medical Treatment and Active Labor Act)] and do a medical
screening and he will wait in our [emergency department] until we can find placement as
we also must follow safe discharge laws.”
The Hospital Authority operates KMC, which is a safety net hospital with an
emergency department that by law must conduct a medical screening exam and stabilize
all individuals presenting at their emergency department regardless of ability to pay.
While KMC’s emergency department handles a wide variety of patient issues, KMC does
not, and is not licensed to, provide long-term or skilled nursing care.
When the Department paroled the four parolees, it transported them to KMC’s
emergency department. 8 KMC did not accept a transfer of the parolees or agree to admit
them, and the Department did not arrange for their admission to KMC. The Department
does not have a contract with KMC to transfer parolees requiring long term care to KMC.
While the Department tries to find willing participants to take its patients, when no one
will accept them, it notifies “hospitals that will receive them in the emergency
department.”
After evaluating each parolee, KMC admitted them, not because they met
inpatient criteria for admission, but because they were unable to care for themselves.
KMC provided medical services to the parolees. While Hospital Authority
acknowledged the parolees needed to be placed in some type of medical facility, it did
safety net services CRMC provides, CRMC’s safety net status would be reviewed in the
future.
8 The parolees were transported on their release dates: August 27 and 30, 2020,
September 18, 2020, and December 15, 2020.
6.
not believe the hospital was the appropriate place for them. KMC eventually found
placement for three of the parolees at other facilities, while the fourth died.
The Petition for Writ of Mandate
Hospital Authority petitioned for a writ of mandate seeking an order requiring the
Department to remove the parolees from KMC and place them elsewhere, such as on
Department property, or at a safety net hospital that has the most capacity to provide long
term care during the Covid-19 pandemic. Hospital Authority alleged the Department
abused its discretion by delivering parolees requiring long term care to KMC’s
emergency department even though Kern County was not the parolee’s last county of
residence without considering whether the location is in the public’s best interest.
The trial court granted Hospital Authority’s application for a temporary restraining
order enjoining the Department from transferring, delivering, or transporting parolees to
KMC except in an actual medical emergency. The trial court subsequently granted a
preliminary injunction enjoining the Department from transferring any prisoner or
parolee who is under the care of any licensed Department medical facility upon parole to
Hospital Authority’s facility without its express agreement unless there is a bona fide
medical emergency. The trial court also issued an alternative writ and ordered a return on
the writ. The Department filed an answer to the petition and a return to the alternative
writ, to which the Hospital Authority replied.
Following a hearing, the trial court granted the petition, finding the Hospital
Authority met its burden that a permanent injunction should issue. The trial court noted
the parties and counsel conceded there were no disputed issues of fact material to the
matter. The trial court determined: (1) the Department has a duty under Penal Code
section 3003 to consider the parolees’ safety; (2) the undisputed facts make clear the
parolees “were first and foremost ‘patients’ of [the Department’s] licensed medical
facilities,” which are not prisons but rather are licensed health facilities with a primary
duty to their patients regardless of their status as prisoners or parolees; and (3) under
7.
California Code of Regulations, title 22, section 79789, the Department “may not
‘transfer’ patients under its medical care without complying with its duty to provide
admission to an appropriate health facility” and may not commit “illegal ‘patient
dumping’ ” by delivering patients to Hospital Authority’s facility through its emergency
department without Hospital Authority’s prior agreement to accept admission.
The trial court issued the following peremptory writ of mandate: “The Court
permanently enjoins transfer by [the Department] of any prisoner or parolee who is under
care at any licensed CDCR medical facility upon parole to [Hospital Authority]’s
facilities without [Hospital Authority]’s express agreement for the transfer, unless there is
a bona fide medical emergency that requires emergency transport by ambulance through
the Kern County emergency response system, where [Hospital Authority] is the
designated receiving hospital emergency department at the time for that system.”
DISCUSSION
Writs of Mandate and Standard of Review
“Code of Civil Procedure section 1085, providing for writs of mandate, is
available to compel public agencies to perform acts required by law. [Citation.] To
obtain relief, a petitioner must demonstrate (1) no ‘plain, speedy, and adequate’
alternative remedy exists [citation]; (2) ‘a clear, present, ... ministerial duty on the part of
the respondent’; and (3) a correlative ‘clear, present, and beneficial right in the petitioner
to the performance of that duty.’ ” (People v. Picklesimer (2010) 48 Cal.4th 330, 339–
340; accord, International Brotherhood of Teamsters, Local 848 v. City of Monterey Park
(2019) 30 Cal.App.5th 1105, 1111.) “A ministerial duty is an obligation to perform a
specific act in a manner prescribed by law whenever a given state of facts exists, without
regard to any personal judgment as to the propriety of the act.” (Picklesimer, at p. 340;
see International Brotherhood of Teamsters, Local 848, at p. 1111; Citizens for
Amending Proposition L v. City of Pomona (2018) 28 Cal.App.5th 1159, 1186
(Citizens).)
8.
Since mandamus is a remedy to compel a public agency to comply with a
ministerial duty, not to compel it to exercise its discretion in a particular manner, an
action’s classification as ministerial or discretionary is crucial to the ultimate question
whether mandate lies. (Citizens, supra, 28 Cal.App.5th at p. 1186.) A duty is ministerial
when the action is unqualifiedly required; “ ‘[a] public entity has a ministerial duty to
comply with its own rules and regulations where they are valid and unambiguous.’ ”
(Ibid.) If the action is discretionary, however, mandate lies only to correct abuses of
discretion. (Ibid.)
“When a court reviews a public entities’ decision for an abuse of discretion, the
court may not substitute its judgment for that of the public entity, and if reasonable minds
may disagree as to the wisdom of the public entity’s discretionary determination, that
decision must be upheld. [Citation.] Thus, the judicial inquiry in an ordinary mandamus
proceeding addresses whether the public entity’s action was arbitrary, capricious or
entirely without evidentiary support, and whether it failed to conform to procedures
required by law.” (California Public Records Research, Inc. v. County of Stanislaus
(2016) 246 Cal.App.4th 1432, 1443.)
“The reviewing court exercises independent judgment in determining whether the
agency action was ‘consistent with applicable law.’ [Citation.] Where the issue is one of
statutory interpretation, the question is one of law for the courts, which are the ‘ “ultimate
arbiters” ’ of statutory construction. [Citations.] Since we apply the same standard as the
trial court, its determination is not binding on us.” (Association of Irritated Residents v.
San Joaquin Valley Unified Air Pollution Control Dist. (2008) 168 Cal.App.4th 535, 543;
see California School Bds. Assn. v. State Bd. of Education (2010) 186 Cal.App.4th 1298,
1314 [“[i]ndependent review is required … where the issue involves statutory or
regulatory construction, such as whether the agency’s action was consistent with
applicable law”].)
9.
“ ‘ “Our fundamental task in construing” ’ … any statute, ‘ “is to ascertain the
intent of the lawmakers so as to effectuate the purpose of the statute.” … We begin as
always with the statute’s actual words, the “most reliable indicator” of legislative intent,
“assigning them their usual and ordinary meanings, and construing them in context.” ’
[Citation.] If the words appear susceptible of more than one reasonable construction, we
look to other indicia of legislative intent, bearing in mind the admonition that ‘[t]he
meaning of a statute may not be determined from a single word or sentence’ [citation]
and that apparent ‘ambiguities often may be resolved by examining the context in which
the language appears and adopting the construction which best serves to harmonize the
statute internally and with related statutes.’ ” (People v. Pennington (2017) 3 Cal.5th
786, 795.)
“Rules governing the interpretation of statutes also apply to interpretation of
regulations. [Citation.] ‘In interpreting regulations, the court seeks to ascertain the intent
of the agency issuing the regulation by giving effect to the usual meaning of the language
used so as to effectuate the purpose of the law, and by avoiding an interpretation which
renders any language mere surplusage.’ ” (Diablo Valley College Faculty Senate v.
Contra Costa Community College Dist. (2007) 148 Cal.App.4th 1023, 1037.) Where a
statute empowers an administrative agency to adopt regulations, those regulations must
be consistent and not conflict with the governing statute. (See Ontario Community
Foundations, Inc. v. State Bd. of Equalization (1984) 35 Cal.3d 811, 816; Gov. Code,
§ 11342.2.)
Legal Principles Concerning Medical Treatment and Parole
The Department operates correctional treatment centers in its prisons to treat
inmates in accordance with Health and Safety Code section 1250. 9 A correctional
treatment center is “a health facility operated by [the Department] … that, as determined
9 Undesignated statutory references are to the Health and Safety Code.
10.
by the [State Department of Health Care Services], provides inpatient health service to
that portion of the inmate population who do not require a general acute care level of
basic services.” (§§ 1250, subd. (j)(1), 100100, 100150.) 10 Section 1250,
subdivision (j)(3) requires correctional treatment centers to “maintain written service
agreements with general acute care hospitals to provide for those inmate physical health
needs that cannot be met by the correctional treatment center.”
The Legislature “created the correctional treatment center licensing category to
ensure that inpatient medical services provided in California’s correctional facilities met
minimum health standards.” (Morris v. Harper (2001) 94 Cal.App.4th 52, 56 (Morris).)
Correctional treatment centers may not be operated without a license. (Ibid.; § 1253.)
Pursuant to the Legislature’s direction, the State Department of Health Care Services has
developed regulations governing correctional treatment centers, which cover all aspects
of their management and operation; the regulations are found in chapter 12, title 22 of the
California Code of Regulations. 11 (Morris, supra, 94 Cal.App.4th at p. 56.)
Regulation 79789 addresses patient transfers. It requires the licensee to “maintain
written transfer agreements with one or more general acute care hospitals to make the
services of those facilities accessible and to facilitate the transfer of patients.” (Cal. Code
Regs., § 79789(a).) It further provides: “No patient shall be transferred or discharged for
purposes of effecting a transfer from a facility to another facility, unless arrangements
10 California Code of Regulations, title 22, section 79516 defines a correctional
treatment center as “a health facility with a specified number of beds within a state prison
… designated to provide health care to that portion of the inmate population who do not
require general acute care level of services but are in need of professionally supervised
health care beyond that normally provided in the community on an outpatient basis.”
11 Undesignated references to regulations are to title 22 of the California Code of
Regulations. To differentiate the applicable regulations from relevant statutes, we shall
refer to various sections in the regulatory framework as “regulation.” For example,
California Code of Regulations, title 22, section 79789 will be identified as regulation
79789.
11.
have been made in advance for admission to such a health facility.” (Id., § 79789(b).)
Another regulation requires a transfer summary to “accompany or precede the inmate-
patient upon transfer to another facility where continuing care will be provided.” (Id.,
§ 79809.) 12
The Department also has promulgated regulations concerning the provision of
health care services at chapter 2 of title 15 of the California Code of Regulations. (Pen.
Code, § 5058; Cal. Code Regs., tit. 15, § 3999.98 et seq.; In re Cabrera (2012) 55 Cal.4th
683, 688.) Those regulations require the Department to “perform each patient transfer in
a manner that ensures continuity of care,” and provide that “[t]ransfers of care shall be
accomplished by verbal communication between sending and receiving care teams, with
written documentation accompanying the patient.” (Cal. Code Regs., tit. 15,
§ 3999.306(a) & (c).) 13 They further provide that for transfers to non-CDCR facilities on
“[r]elease from custody,” “[c]ustody staff shall notify health care staff of pending transfer
via the Parole/Transportation List.” (Id., § 3999.306(c)(2)(B).) 14
Department regulations also address health care treatment for parolees, which
require health care staff to personally screen each patient prior to release to parole or
discharge from a facility and alert the patient’s parole agent regarding any current health
12 An “inmate-patient” is defined as “an inmate who is receiving care and
supervision in a correctional treatment center.” (Cal. Code Regs., § 79537.) An “inmate,
as used in the correctional treatment center regulations,” is defined as “a detainee or
offender who is under sentence to, or confined in, a prison, jail, or other correctional
institution operated by the Department of Corrections ….” (Id., § 79535.)
13 The regulations define a “patient” as “an inmate who is seeking or receiving health
care services or who is assigned to a care team,” and a “care team” as “an
interdisciplinary group of health care professionals who combine their expertise and
resources to provide care for a panel of patients.” (Cal. Code Regs., tit. 15, § 3999.98.)
14 The regulations define “health care staff” as “those persons licensed by the state to
provide health care services, who are employed by the Department or are working under
direct or indirect contract with the Department to provide health care services.” (Cal.
Code Regs., tit. 15, § 3999.98.)
12.
problems. (Cal. Code Regs., tit. 15, § 3999.432(a).) While “[h]ealth care for parolees
shall normally be provided by private physician and community medical facilities, as
desired by the parolee and at the parolee’s own expense,” when a parolee requires
emergency medical, surgical, psychiatric, or dental care and community resources are not
available or lack security to treat the parolee, arrangements may be made for the
parolee’s return to Department custody for emergency treatment. (Id., § 3999.432(b) &
(c); see Welf. & Inst. Code, § 17000 [requiring counties to “relieve and support” indigent
persons]; County of San Diego v. State of California (1997) 15 Cal.4th 68, 104-105
[Welf. & Inst. Code, § 17000 mandates the provision of medical care to indigents and
imposes a mandatory duty on all counties to provide medically necessary care].)
The parolees at issue in this case were inmate-patients of the correctional
treatment centers. But once they reached their parole dates, they were entitled to parole
release. (Pen. Code, § 3000, subds. (a)(1) & (b)(1); Cal. Code Regs, tit. 15, §§ 3500(b),
3075.2(a)(1); McQuillion v. Duncan (9th Cir. 2002) 306 F.3d 895, 902 [“California’s
parole scheme gives rise to a cognizable liberty interest in release on parole”].)
Offenders serving a determinate term must be released for a period of supervised parole
once they serve their entire term, less applicable sentence credits, while those serving
indeterminate sentences become eligible for parole consideration after serving minimum
terms of confinement. (In re Dannenberg (2005) 34 Cal.4th 1061, 1078.) Once a release
date is scheduled, the inmate must be released on that date, “except as otherwise provided
by applicable law and regulations.” (Cal. Code Regs., tit. 15, § 3075.2(a)(1).)
The Legislature has granted the Department discretion to determine the “specified
terms and conditions of a given parole” (McCarthy v. Superior Court (1987)
191 Cal.App.3d 1023, 1028), and “exclusive jurisdiction and full discretion to determine
a parolee’s placement.” (City of Susanville v. Department of Corrections &
Rehabilitation (2012) 204 Cal.App.4th 377, 382 (City of Susanville).) If possible, a
parolee is to be returned to the city that was the parolee’s last legal residence prior to
13.
incarceration, but the Department retains discretion to return the parolee to another
county or city “if that would be in the best interests of the public.” (Pen. Code, § 3003,
subds. (a) & (b).) In making its decision, the Department must consider five enumerated
factors, including “[t]he need to protect the life or safety of … the parolee[.]” (Pen.
Code, § 3003, subd. (b).)
Here, the Department attempted to find skilled nursing facilities in the parolees’
last counties of residence before the parolees’ scheduled release dates. When those
efforts proved unsuccessful and the parolees’ release dates arrived, the Department
discharged the parolees from the correctional treatment centers and delivered them to
KMC’s emergency department. Although the parolees did not have emergent needs
requiring emergency care, the Department reasoned KMC was required to provide
medical screening and any appropriate treatment by the EMTALA (42 U.S.C. § 1395dd).
EMTALA prohibits hospitals that have entered into Medicare provider agreements
“from inappropriately transferring or refusing to provide medical care to ‘any individual’
with an emergency medical condition. (Barris v. County of Los Angeles (1999)
20 Cal.4th 101, 108-109 (Barris).) 15
Under the EMTALA, hospitals with emergency departments have two obligations:
(1) to provide “ ‘an appropriate medical screening examination’ ” if an individual comes
to the emergency department requesting examination or treatment; and (2) “if the hospital
‘determines that the individual has an emergency medical condition,’ it must provide
‘within the staff and facilities available at the hospital’ for ‘such treatment as may be
required to stabilize the medical condition’ and may not transfer such a patient until the
15 “Although EMTALA was passed in response to concern by the Congress that
hospitals were engaging in ‘patient dumping’ – i.e., refusing medical treatment or
transferring indigent and uninsured patients from private to public hospitals to avoid the
costs of treatment – it applies to all patients seeking emergency treatment, without regard
to ability to pay or insurance.” (Barris, supra, 20 Cal.4th at p. 109, fn. 2.)
14.
condition is stabilized or other statutory criteria are fulfilled.” (Barris, supra, 20 Cal.4th
at p. 109, citing 42 U.S.C. § 1395dd(a), (b) & (c).) 16 If an individual’s emergency
medical condition has not been stabilized, a hospital may not transfer the individual
unless, among other things, the transfer is an “appropriate transfer,” which requires the
receiving facility to (1) have available space and qualified personnel to treat the
individual, and (2) agree to accept the transfer and provide appropriate medical treatment.
(42 U.S.C. § 1395dd(c)(2)(B).)
Ministerial Duty
The issue here is whether the Department has a ministerial duty to refrain from
discharging parolees who need continued skilled nursing care from the correctional
treatment centers until it can locate a medical facility that consents to admit them. The
Department contends once inmates who are correctional treatment center patients reach
their parole release date, they become parolees, and if the Department has not located a
non-CDCR medical facility willing to admit them before their parole dates, once those
dates arrive, it has no choice but to transport them to the emergency department of a
safety net hospital in the county to which they are being paroled. Hospital Authority
16 EMTALA defines the term “emergency medical condition” as “a medical
condition manifesting itself by acute symptoms of sufficient severity (including severe
pain) such that the absence of immediate medical attention could reasonably be expected
to result in … [¶] … placing the health of the individual … in serious jeopardy, [¶] …
serious impairment to bodily functions, or [¶] … serious dysfunction of any bodily organ
or part.” (42 U.S.C. § 1395dd(e)(1)(A).) It defines “to stabilize” as meaning “to provide
such medical treatment of the condition as may be necessary to assure, within reasonable
medical probability, that no material deterioration of the condition is likely to result from
or occur during the transfer of the individual from [the] facility[.]” (42 U.S.C.
§ 1395dd(e)(3)(A).)
A similar California statute requires hospitals with emergency departments to
provide “[e]mergency services and care” to “any person requesting the services or care,
or for whom services or care is requested, for any condition in which the person is in
danger of loss of life, or serious injury or illness[.]” (Health & Saf. Code, § 1317,
subd. (a).)
15.
counters the parolees remain patients of the correctional treatment centers, therefore
regulation 79789 requires the Department to obtain consent from KMC, as the receiving
medical facility, before transferring the parolees there.
As stated above, regulation 79789(b) provides that “[n]o patient shall be
transferred or discharged for purpose of effecting a transfer from a facility to another
facility, unless arrangements have been made in advance for admission to such a health
facility.” It is undisputed the Department did not comply with regulation 79789(b) when
transferring the parolees to KMC, as it did not arrange for their admission to KMC before
dropping them off at KMC’s emergency department. The Department, however,
maintains regulation 79789(b) is inapplicable because it covers only inmate-patients, not
parolees, and does not require a receiving facility’s consent before taking the parolees to
the emergency department.
On the first point, the Department contends reading regulation 79789 as applying
to parolees impermissibly enlarges the scope of section 1250, which allows correctional
treatment centers to provide inpatient health services to a segment of the “inmate
population.” (§ 1250, subd (a).) But the correctional treatment centers do not necessarily
treat only inmates. As Hospital Authority points out, correctional treatment centers have
the option of providing perinatal services, which allows the correctional treatment center
to provide care for infants, who if born without abnormalities that impair function or
threaten life may be retained at the correctional treatment center for 24 hours and requires
development of admission policies that include infants delivered prior to the mother’s
admission. (Cal. Code Regs., §§ 79703, 79723(a)(2) & (b)(2).) Moreover, the
correctional treatment center may arrange for the provision of neonatal care outside the
treatment center under contractual agreement with a general acute care hospital. (Cal.
Code Regs., § 79723(a)(1).) Regulation 79789’s transfer provision would necessarily
apply to infants, who are correctional treatment center patients, and require the
Department to make advance arrangements for the infant’s admission to the hospital.
16.
Thus, regulation 79789 appears to be a general transfer regulation that applies to
all patients of correctional treatment services, which is further evidenced by the use of the
term “patient” rather than the defined terms of “inmate-patient” or “inmate.” (Cal. Code
Regs., §§ 79535 [defining “inmate”], 79537 [defining “inmate-patient”], 79789(b).)
While the applicable regulations do not mention parolees or define that term, and other
provisions of the correctional treatment center regulations refer to either inmate-patients
or patients or use the two terms interchangeably in the same regulation, 17 the regulations
do not indicate that an inmate ceases to be a patient of the correctional treatment center
simply because the inmate’s status changes to that of parolee. To hold otherwise would
mean, for example, that inmates who for whatever reason remain in the correctional
treatment center past their release date would lose whatever protections are provided to
correctional treatment center patients.
For this reason, even if regulation 79789 used the term “inmate-patient” rather
than “patient,” and was intended to apply to inmate-patients, the regulation still would
apply to inmates whose status changes to parolees and who remain in the correctional
treatment center for care or treatment. 18 As Hospital Authority points out, the
17 The Department cites to regulations that: (1) refer only to “inmate-patient” (Cal.
Code Regs., §§ 79799 [inmate-patient rights], 79805 [inmate-patient health record],
79815 [inmate-patient identification], 79801 [clinical restraints of inmate-patients]);
(2) use only the term “patient” (id., §§ 79789 [transfer], 79731 [outpatient surgery],
79813 [custodial personnel]); and (3) others that use both terms (id., §§ 79799 [inmate-
patient’s rights] and 79805 [inmate-patient health record content].)
18 The Department cites to the statement of reasons for the correctional treatment
center regulations to support the conclusion that regulation 79789 applies only to
inmates, which note correctional treatment centers were created to raise the health care of
inmates of jails, prisons, and other detention facilities to community health care
standards. The statement of reasons states regulation 79789 is necessary to implement
section 1250, subdivision (j)(3)’s requirement to maintain written service agreements
with general acute care hospitals “to make services … available to inmate-patients,” to
“facilitate transfers of inmate-patients to general acute care hospitals,” and to ensure
17.
requirement to make arrangements for admission before transferring a patient to another
facility applies to other types of health facilities. For example, a general acute care
hospital may not transfer or discharge a patient solely for the purposes of effecting a
transfer to another health facility unless, among other things, “[a]rrangements have been
made in advance for admission to such health facility.” (Cal. Code Regs., § 70717(f); see
id., §§ 71517(e) [acute psychiatric hospital may not transfer inpatient to another health
facility “unless arrangements have been made in advance for admission to such health
facility”]; 77113(e) [same for psychiatric health facilities], 79325(h) [same for chemical
dependency recovery hospital]; 73315(i) [intermediate care facilities must “make
arrangements” to transfer a patient requiring service which are not considered
intermediate services].)
Thus, the transfer requirement is not unique to correctional treatment centers but
applies to all health facilities. This is to protect the patient by ensuring the receiving
facility can accommodate and care for the patient. Regardless of whether an individual
receiving care at a correctional treatment center is an inmate or parolee, the individual is
also a patient who has certain rights and is entitled to protection. 19 Accordingly, the
“proper and accurate documentation is maintained by the licensed correctional treatment
center in conjunction with inmate-patient transfers.”
19 That a patient’s change of status from inmate to parolee does not discharge a
licensed health facility from its obligations toward the patient is demonstrated in the
Department’s contract with Health Net Federal Services. That contract addresses the
contractor’s obligation to provide continued care to inmates who reach their parole date
while in the contractor’s care – the contractor agreed the parole date would not “prevent
an inmate from receiving emergency medical services or result in being discharged
prematurely.” Moreover, the contractor would receive assistance in providing
appropriate follow-up care, including either transferring the patient to a community
health facility in the parole region, the patient receiving continued care in the current
facility, or transfer to outpatient care in the area of parole release. Notably, the contract
does not allow the contractor to deliver the patient to another facility’s emergency room
if a suitable placement cannot be found.
18.
prohibition against transferring patients to another facility unless advance arrangements
have been made for admission to that facility applies to parolees as well as inmates.
On the second point, the Department contends regulation 79789 does not require
Hospital Authority’s “express agreement before CDCR may assist a parolee in seeking
medical care from its safety net hospital.” Relying on a dictionary definition of the word
“arrangement,” 20 the Department asserts it need only work together with Hospital
Authority to arrange the transfer as a preliminary measure and Hospital Authority’s
express agreement to accept the patient for admission is not required.
A patient transfer under regulation 79789 requires that “arrangements have been
made in advance for admission to such a health facility.” (Cal. Code Regs., § 79789(b).)
One appellate court addressing the meaning of the word “arrangement” in another context
noted the word “means ‘[a]n agreement with someone,’ ” and “has been defined as ‘a
mutual agreement or understanding (as between persons or nations).’ ” (People v.
Martinez (2020) 59 Cal.App.5th 280, 297-298, review granted Mar. 17, 2021, S267138.)
Moreover, an agreement can be “ ‘an arrangement (as between two or more parties) as to
a course of action.’ ” (Id. at p. 298.) Thus, the word “arrangement” “suggests at least
mutuality and assent regardless of the degree of informality.” (Ibid.)
Based on these definitions, an arrangement for admission means there must at
least be a mutual agreement that the receiving facility will admit the patient. Even under
the Department’s definitions, an informal agreement concerning the transfer is required.
To fulfill the purpose of the regulation, KMC must agree to accept the parolees for
admission before the transfer occurs.
20 The Department cites to the following definitions of the word “arrangement”:
(1) “the state of being arranged”; and (2) “something arranged: such as … a preliminary
measure” or “an informal agreement or settlement especially on personal, social, or
political matters.” (Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/arrangements [as of May 26, 2023].)
19.
The Department appears to be asserting it need not comply with regulation
79789(b) because it is not transferring the parolees to KMC for admission, but rather
discharging them to parole and then delivering them to the emergency room, where KMC
is obligated to assess them. But this is not a situation where the parolees needed
emergency medical care; rather, it is undisputed they needed transfer to skilled nursing
facilities. While KMC is required under the EMTALA to perform a medical screening
examination if the parolees present to the emergency department requesting an
examination or treatment, it need not admit them as inpatients unless they require
stabilization of an emergency medical condition. (42 C.F.R. § 489.24(a)(1)(ii) &
(d)(2)(i).) KMC admitted the parolees, not because they had emergency medical
conditions that needed stabilizing, but rather because they could not care for themselves
and needed skilled nursing care.
The Department asserts it is not demanding that the parolees delivered to the
emergency department be admitted to the hospital. However, the Department knew, or
certainly should have known, the hospital would have no choice but to admit them since,
as the Department concedes, there were no skilled nursing facilities that would accept
them, and they could not be safely released to the streets. By delivering them to the
emergency department knowing they would necessarily be admitted to the hospital, the
Department achieved a transfer of a patient to another facility without first arranging for
the patient’s admission as required by regulation 79789.
The Department asserts that requiring it to make arrangements for admission
before transferring the parolees is not a matter subject to mandamus because it is not a
ministerial act. But obtaining relief by means of mandate may be appropriate even
though the approval and cooperation of third parties is required. (Morris, supra,
94 Cal.App.4th at pp. 61-62 [rejecting argument that writ of mandate compelling
fulfillment of legal duty to comply with licensing requirements for correctional treatment
centers should not issue because compliance could not be achieved without the approval
20.
and cooperation of third parties].) In issuing a writ of mandate, the trial court compelled
the Department to fulfill its legal duty to obtain Hospital Authority’s express agreement
before transferring any parolee under care at any licensed CDCR medical facility. This
was appropriate even though the Department will need the approval and cooperation of
the Hospital Authority in effecting the transfer.
The Department claims requiring it to obtain the hospital’s consent to transfer the
parolees conflicts with its obligation to provide health care to those in custody. It asserts
it only has a constitutional duty to provide medical care to inmates while in custody,
while counties are responsible for providing medical services to indigent parolees. In
support, the Department points to a Kern County ordinance that requires Hospital
Authority to provide health care services to indigent county residents and Hospital
Authority’s agreement with Kern County to provide medical services to indigent county
residents. Even so, the Department cannot shirk its duty to the parolees as correctional
treatment center patients.
The Department contends interpreting regulation 79789 as applying to parolees
and requiring Hospital Authority’s consent for transfer is inconsistent with the parolees’
right to be released from custody after serving their sentences, as well as their right to
avail themselves of community services, including emergency department services. The
Department reasons that conditioning release from prison on an emergency department’s
consent to medically examine the individual would lead to an absurd result, as it would
condition the parolee’s right to liberty on the approval of hospital administrators in likely
violation of the parolees’ constitutional right to release from confinement.
We recognize the tension between the Department’s duty to the parolees as
patients and the parolees’ liberty interest. While the parolees have the right as
correctional treatment center patients to be safely transferred to a skilled nursing facility
or other facility willing to admit them, they also have the right to release from prison.
This tension can be addressed, however, by modifying the peremptory writ of mandate to
21.
allow for a parolee’s declination of further care and treatment at the correctional
treatment center. In that circumstance, the Department may assist with arranging for the
parolee’s transport to an emergency department without first obtaining the medical
facility’s consent. This leaves the parolee with the following options – either remain a
patient at the correctional treatment center until a skilled nursing or other medical facility
is found that agrees to accept the parolee for admission, or be medically discharged at the
parolee’s request. What the Department cannot do is drop the parolees off at the
emergency department while the parolees remain correctional treatment center patients
without making advance arrangements for their admission to the hospital.
This modification to the peremptory writ of mandate addresses the Department’s
concern the injunction impermissibly infringes on its discretionary parole authority under
Penal Code section 3003 because, although the trial court did not prohibit it from
paroling parolees to Kern County, it “will in some circumstances” be prevented from
paroling individuals to Kern County. A parolee who decides to remain a correctional
treatment center patient may still be paroled to Kern County upon locating a medical
facility willing to accept the parolee, while a parolee who consents to be medically
discharged from a correctional treatment center may be taken to a Kern County
emergency department.
Conclusion
In sum, Hospital Authority established the Department failed to comply with
regulation 79789 when transferring the parolees to KMC, and therefore abused its
discretion. 21 In view of the Department’s insistence that it would continue to transport
21 Since we conclude the Department had a duty to comply with regulation
79789(b)’s requirement that it make arrangements for the transfer of the parolees before
transferring them to a Hospital Authority medical facility, we do not address Hospital
Authority’s arguments that the Department abused its discretion under other statutes and
regulations by placing parolees who need long term care at KMC.
22.
parolees who are patients of its correctional treatment centers to KMC without its consent
for admission, the trial court was justified in granting judgment enjoining the Department
from transferring any parolee under its care at any licensed CDCR medical facility to
Hospital Authority’s facilities upon parole without Hospital Authority’s express
agreement for transfer, unless a bona fide medical emergency existed. The judgment,
however, does not account for a parolee’s right to be medically discharged from the
correctional treatment center and to request examination and treatment at a Hospital
Authority facility. Accordingly, we will order the judgment modified.
DISPOSITION
The matter is remanded for the trial court to modify the judgment at paragraph 5,
starting with the second sentence, as follows (with the modifications in italics):
“The Court permanently enjoins transfer by Respondents of any prisoner or
parolee who is under care at any licensed CDCR medical facility upon parole, unless the
parolee has requested a medical discharge from the CDCR medical facility, to
Petitioner’s facilities without Petitioner’s express agreement for the transfer, unless there
is a bona fide medical emergency that requires emergency transport by ambulance
through the Kern County emergency response system, where the Petitioner is the
designated receiving hospital emergency department at the time for that system.”
The trial court is ordered to issue a new peremptory writ. As so modified, the
judgment is affirmed. The parties shall bear their own costs on appeal.
DE SANTOS, J.
WE CONCUR:
LEVY, Acting P. J.
SNAUFFER, J.
23.