BEWARE: BPH STATES THAT “MEDICAL RECORDS” ARE NOT OFF LIMITS FOR USE AT PAROLE HEARINGS!

There have been many inquiries about legal authority for the Board of Parole Hearings (BPH) to access the medical records of incarcerated people for parole consideration purposes. 

 In short, all those asking if the Board can access medical and mental health treatment records for their parole suitability hearing—the answer is, Yes. Is it legal?…. that can still be debated given that the Parole Hearing transcripts “themselves” are Public Record and thus [in our opinion] indirectly violates the Confidential Medical records laws. 

The main short term take away: if your loved one is seeing a clinical psychologist, psychiatrist or even a Medical Doctor within CDCR (and/or their Mental Health division) then they should know to “be careful” what is disclosed to the Doctor. The Doctor’s NOTE will not be Confidential and will be used at the Parole Hearing against them. These Doctors’ notes usually come in as “quotes” from the medical record during the Comprehensive Risk Assessment (CRA) file review by the BPH psychologist, who then writes their report for the Board (a.k.a. Psychological Report).

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BELOW is a summary of why BPH thinks that they are allowed to violate the inmates right by reviewing the “confidential” private Medical Records. 

BPH’s Chief Counsel’s legal position is that People (inmates) appearing before the board do not have a right to keep their medical records private from the Board, as the Board must review all relevant and reliable evidence when making parole decisions. 

To the extent people appearing before the Board asserts a right to privacy of medical information, the board’s authority to access the medical records of incarcerated people for purposes of parole consideration is permitted by both the Health Information Portability and Accountability Act (HIPAA) and California law. In fact, California law requires that an incarcerated person’s records be made available for the board to decide when a person can be safely allowed to return to society, and this exception obviates the need for a signed disclosure under HIPAA. The board may access medical records to satisfy its regulatory and statutory mandates. California Code of Regulations, title 15, sections 2281 and 2402, require the board to consider all relevant and reliable information for the board to meet its statutory obligations under Penal Code sections 3041, 4801, and 5075.1. 

 Medical records may contain relevant and reliable information about an individual’s suitability for parole. For example, under the elderly parole program ordered by the three-judge panel in Plata/Coleman v. Newsom and the separate elderly parole program in Penal Code section 3055, the board must consider an elderly offender’s diminished physical capacity. The medical records are a critical source for this information. 

 Similarly, when applying the youth offender factors required by Penal Code sections 3051 and 4801, subdivision (c), the board must look for subsequent growth and increased maturity of an individual, evidence of which is often found in the treatment and programming records contained in a medical file. Further, programming information for some people is kept in their medical file, as is evidence of mental state, conditions of treatment or control, and further information that bears on the person’s suitability for release. (Cal. Code Regs., tit. 15, §§ 2281, subd. (b); 2402, subd. (b).) Since disclosure of medical records is required under these legal mandates, HIPAA is satisfied. 

When considering “the purpose for which the information is sought” — which here is to determine whether an incarcerated person would pose an unreasonable risk to public safety in the free community — the scope is not limited in the request because the board must consider all relevant and reliable information when making such a parole decision. 

 If an entity other than the board was to limit its access to records, and thereby make decisions as to what information is relevant to parole suitability, the entity would violate the board’s purpose and authority. No agency other than the board determines what information may be relevant to making parole decisions. 

Mental health treatment records are accessible to the BPH. BPH’s Chief Counsel’s summarized some basic reasons (below) for the board’s access to an inmate’s medical/mental health records: 

 Elderly parole must give special consideration to the diminished physical condition, if any, have reduced the elderly inmate’s risk for future violence (PC 3055),

Programming records for those in mental health treatment programs (where compliance with treatment is often considered programming),

Information relevant to future risk due to illness/impairment,

Information related to mental state, conditions of treatment and control and further information that bears on the person’s institutional behavior and suitability for release,

Information on substance abuse based on the person’s history Information needed to ascertain reasonable accommodations under the Americans with Disabilities Act.  

BOTTOM LINE: BPH’s Chief Counsel’s legal position is that an incarcerated person does not have a reasonable expectation of privacy regarding their medical records when the records are needed for parole consideration purposes. Even if there was some privacy expectation, the board has the explicit authority to utilize an incarcerated person’s medical records for purposes of parole consideration under the Health Information Portability and Accountability Act HIPAA and Confidentiality of Medical Information Act (CMIA).

LSA offers free "live" Seminars for Lifers to prepare for their Parole Hearing; at RJ Donovan August 25, 26, 27: Tell your RJD Loved ones to sign up.

Life Support Alliance (LSA) returning to Prison to give their impactful Lifer Workshop: Get your Loved ones involved. 

Now that Covid19 is subsiding and more institutions are allowing Program providers into the prisons to bring "live" presentations; Life Support Alliance (LSA) is getting invitations to bring their impactful workshops. Tell Your Loved Ones to sign-up for the classes before it fills up.

 IT IS FREE and conducted on the YARDS at the prison.

SAVE THE DATES:

RJ Donovan San Diego; Friday, Saturday, and Sunday starting August 25* to 27 of 2023. 

** Watch for a Special RJD Appearance by Attorney Diane Letarte  at one or more sessions.

The idea is to try to present the class to as many inmates, by visiting as many Yards as possible, in the RJD institution during those 3-days. Some of the workshops include: Unraveling a Parole Hearing, Connecting the Dots, the Amends Project (e.g. how to write apology letters), among others.

LSA travels to the prisons to give their workshops in-person to all Long Term Inmates (i.e. Lifers, Youth Offender, Elderly hearings, DSL, ISL) that are going to a Parole Suitability Hearing. The workshop will help them get prepared for the Parole Hearing. LSA staff will go where they have the most interested people. This month of August 2023; it will be at RJ Donovan institution.

Specifically LSA will normally prioritize the institutions who register the most memberships (i.e. interest)! 

 If you are a Loved Ones in the free community then sign up to be a Free member of the Life Support Alliance (LSA). You will get the Free Newsletter (Lifer*Line) each month in your email inbox. The other way is to text the word “JOIN” to their automated system at 916-702-7344; which will return a link. Use the link to fill out the membership registration, right from the phone. 

The membership “count” will indicate which Prisons should get the in-person workshop first. You can also go to LSA’s website at www.lifesupportalliance.Org. Scroll to the bottom of the page and hit the “JOIN” button to get the same form to fill out. Fill out the form with the inmates’ name and the prison location. 

 LSA can be contacted via their email address info@lifesupportalliance.org and 

LSA PO BOX 277 

Rancho Cordova, 

CA 95711 

 

Thank You to LSA for all of what they do to assist the inmate population get home.

Senate Bill 81 would be a game changer for all Parole Candidates that get Denied AFTER reaching their Minimum Eligible Parole Date (MEPD)

 

Amended  IN  Assembly  June 21, 2023

Amended  IN  Senate  May 23, 2023

Amended  IN  Senate  March 22, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

                                                Senate Bill  No. 81

Introduced by Senators Skinner and Becker

January 12, 2023

An act to amend Section 3041 of, and to add Section 3041.8 to, the Penal Code, relating to parole.

 

Senate Bill 81 (SB 81) is a bill that was introduced in the California State Senate in 2023. The bill would add Section 3041.8 to the Penal Code, relating to parole. Note that this Bill will not be retroactive. Please note that our July summary may still be Amended beyond the posting of our BLOG. As of July 3rd, 2023, below is what SB81 looks like.

If your loved one has gone to the Board and has been denied at least once, then most likely by the next hearing; the Minimum Eligible Parole Date will have been exceeded. It may be a good idea to postpone their 2023 parole hearing until 2024. Make sure to review this with an attorney, before postponing the next hearing. This can be case specific depending on the circumstance of the case. If the Law Office of Diane T. Letarte is retained, we take into account this strategy based on the specific factors of our client's case. 

SB 81 is currently in the California State Assembly. If it is passed by the Assembly and signed by the Governor, it would go into effect on January 1, 2024. 

Here are some of the key provisions of SB 81: 

* Specifically, SB 81 would require the Board of Parole Hearings (BPH) to notify a parole candidate who has been denied parole that they have a right to petition for habeas relief from a court.

* A parole candidate may have the petition heard in either the county of conviction or in the county in which the parole candidate is incarcerated. To be allowed to pick the jurisdiction to file the Writ (WHC) can be very helpful to avoid some very conservative counties!

* SB 81 would also establish that a parole candidate who has reached their minimum eligible parole date has made a fundamental vested interest in being released on parole. This includes any ONE of the minimum parole dates such as MEPD, YPED, and EPED for youth offenders and elderly parole hearings. This means a parole candidate has made a prima facie case for relief and the reviewing court may not summarily deny a petition for writ of habeas corpus filed pursuant to this section.

* SB 81 would require a court reviewing a petition for habeas relief based on a parole denial to uphold the decision to deny parole only if the court finds, by a preponderance of the evidence, that the person presents a current, unreasonable risk of danger to public safety. 

* The Bill would require the court to, upon request, appoint FREE counsel to a parole candidate who has reached their minimum eligible parole date, who petitions the court for habeas relief after being denied parole. 

* The Court may order whatever relief as the case may require, including an Order for a new parole hearing, with or without limitations on what evidence the Board of Parole Hearings may consider.