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California State Senate Fails to Pass Prison Health Construction Bond: Federal Court Receiver Demands $3.5 Billion, With More to Come, Worsening State Budget Deficit

frankrusso-small.jpg By Frank D. Russo

The California State Senate has just adjourned, having failed to pass SB 1665 (Machado) which would have authorized $7 billion in bonds to pay for prison health care construction that the federal court receiver indicated he needs in order to bring California’s system into constitutional compliance with orders in cases pending against the state. By a vote of 24 to 15, with 27 votes needed for the two-thirds required for passage, the Senate failed to pass this bill, despite passages from a letter from the receiver read on the Senate floor by Senator Machado. The only votes for the bill came from Assembly Democrats.

The stage is set, given the reaction of the receiver, which his office has indicated will be his only public commentary today, for the receiver to go to court for an order that funds be immediately paid by the state of California, thus worsening the state’s deficit for the current fiscal year and severely impacting it in the 2008-09 fiscal year beginning July 1 which has an estimated $15 billion deficit without further cuts or revenue.

We will report more on developments on the prison and budget crisis, including the apparent demise of a settlement of the prison overcrowding lawsuit which the parties had hoped would be formalized tomorrow. Senator Machado told the Senate that this settlement was “DOA.”

For now, here is the information as released by the receiver:

J. Clark Kelso, Federal Receiver for the California Prison Health Care Receivership Corp. has issued the attached letter to the Department of Finance (Attached as “Genest Letter”)

The release of this letter will be the Receiver’s only public commentary for today. The following are excerpts of the letter:

What happens next?
Absent favorable action today on SB 1665 (Machado), it is my intention to file with your office a demand that the State of California commit to setting aside $7 billion in the Receiver's account to be used for the Health Care Facility Expansion and Improvement Programs provided for in the Receivership's Strategic Plan, "Achieving a Constitutional Level of Medical Care in California's Prisons."

How does this affect California’s Budget?
SB 1665 was introduced to provide cost-effective bond financing for these construction programs, financing that would avoid the need to adversely impact the General Fund for the next three years. In my judgment, given the disastrous condition of the State's General Fund and budget, SB 1665 is the only fiscally responsible approach for providing the necessary financing.

I remain hopeful that the Senate will act favorably upon SB 1665, and that I will not be forced to ask you to immediately sweep all available funds and to take other extraordinary reallocations of funds to provide financing for my construction program. However, I can no longer stand idly by while the State continues its pattern of prevarication.

How much money is needed and by when?
I will be needing to commit $70 million immediately (Le., in the current fiscal year), and anticipate needing $3.43 billion during FY 2008-2009, $2.0 billion during FY 2009-2010 and the final $1.5 billion during FY 2010-11.

What if the need for inmate beds decreases?
I have committed to the State in SB 1665 that I would undertake this construction program in three phases, and that before I proceed to the second or third phases, I would undertake a reassessment of the prison population to determine whether additional construction was still necessary in light of possible changed circumstances. I now commit to you the same approach. I will not proceed to phases 2 or 3 without reassessing actual need. I will also work with you and your staff to establish some form of project review and reporting similar to the processes used by the Public Works Board so that there is appropriate public oversight of my construction program. I am not seeking to avoid oversight; I am simply seeking a clear pathway forward.

The "Genest Letter" in Full

May 29,2008
Mr. Michael Genest
Director Department of Finance
State Capitol
Sacramento, CA 95814

Dear Mike:

Absent favorable action today on SB 1665 (Machado), it is my intention to file with your office a demand that the State of California commit to setting aside $7 billion in the Receiver's account to be used for the Health Care Facility Expansion and Improvement Programs provided for in the Receivership's Strategic Plan, "Achieving a Constitutional Level of Medical Care in California's Prisons."

As you may recall from my letter to you of April 19, 2008, we are on schedule to engage design firms this July for our 10,000-bed Health Care Facility Expansion Program and to break ground on the first facility by January 2009. We are also progressing rapidly on our Health Care Facility Improvement Program at several sites. These programs, as you know, are essential components of the Receivership's Strategic Plan, absolutely necessary to bring the level of prison health care services up to federal constitutional standards. The four United States District Court Judges responsible for coordinating the medical care (Plata), mental health care (Coleman), dental care (Perez) and disability access (Armstrong) class actions recently signed an agreement whereby the Receiver takes the lead concerning health care related prison construction projects. As a result, the construction programs in the Plan of Action are designed to address medical, mental health, and disability access concerns. Without timely financial support from the State, remedial work in four major cases will be unacceptably delayed.

SB 1665 was introduced to provide cost-effective bond financing for these construction programs, financing that would avoid the need to adversely impact the General Fund for the next three years. In my judgment, given the disastrous condition of the State's General Fund and budget, SB 1665 is the only fiscally responsible approach for providing the necessary financing.

The federal court in Plata v. Schwarzenegger has been waiting for six years for the State to comply with its orders. The federal court in Coleman v. Schwarzenegger has been waiting for 13 years for the State to comply with its orders. I have previously explained to the Administration and Legislature that the Federal Court needs the State's unequivocal, full support for this construction program. The Receiver, responsible for medical, mental health and disability access construction cannot be placed in the position of proceeding without the certainty of state funds concerning a very complex construction program. An incrementalist approach -which is how the State usually funds non-critical, multi-year projects and major capital outlays -necessarily introduces significant uncertainties and delays in completing construction. Furthermore, it unnecessarily increases costs and represents an inefficient, bad way of doing business. That is why SB 1665 was drafted to authorize the full $7 billion in funding for these projects now, and that is why I am demanding that the State now commit to setting aside $7 billion in the Receiver's account. In order to correct the health care related unconstitutional conditions which plague California's prisons, the Receiver requires immediate access to these funds to effectuate timely and cost-effective remedial action. The timetable set by the State's rigid budget processes is simply inadequate given what needs to be done.

I have committed to the State in SB 1665 that I would undertake this construction program in three phases, and that before I proceed to the second or third phases, I would undertake a reassessment of the prison population to determine whether additional construction was still necessary in light of possible changed circumstances. I now commit to you the same approach. I will not proceed to phases 2 or 3 without reassessing actual need. I will also work with you and your staff to establish some form of project review and reporting similar to the processes used by the Public Works Board so that there is appropriate public oversight of my construction program. I am not seeking to avoid oversight; I am simply seeking a clear pathway forward.

I will be needing to commit $70 million immediately (i.e., in the current fiscal year), and anticipate needing $3.43 billion during FY 2008-2009, $2.0 billion during FY 2009-2010 and the final $1.5 billion during FY 2010-11.

I remain hopeful that the Senate will act favorably upon SB 1665, and that I will not be forced to ask you to immediately sweep all available funds and to take other extraordinary reallocations of funds to provide financing for my construction program. However, I can no longer stand idly by while the State continues its pattern of prevarication.

J. Clark Kelso
Receiver

Posted on May 29, 2008

Comments

Maybe it is the intentional result of CA's "Reich Stag" to go ahead with AB 1965 while remaining faithful to their base by declaring they are once again "raped victims" of the Judicial Tyranny from the left. I hope Kelso sticks to his guns and follows Lady MacBeth's advice to "screw [his] courage to the sticking place".. or better still.. Ahnold's arse.

Posted by: Oldgringo at May 29, 2008 05:26 PM

$7 billion is definitely alot of money. Of course much of this money is going toward the exhorbitant salaries of the psychiatrists and psychologists, as well as the registered nurses and the Medical Technical Assistants employed in the Dept. of Mental Health. The Medical Technical Assistants,in particular, are paid salaries comparable to registered nurses in the private sector. This, combined with their average overtime pay,rivals some physician salaries.

A more fiscally responsisble approach would be to hire licensed vocational nurses and psych techs. to replace the overpaid MTA's. A State LVN's base salary is roughly half of that of an MTA's. Yet each class maintaines basically the same licensure. This approach was accomplished in the California Dept. of Corrections with mixed results, but still better than what was expected.

If the State is truly interested in wrestling with the budget, then I would think that it would want to take a long look at what I have just outlined.

Posted by: john laughton at June 8, 2008 11:02 PM

Excuse me, Mr. Laughton but there are only 300 or so MTAs in the state. So to claim that "much of" the $7 billion CDCR budget is going toward the salaries of those 300 people is simply dishonest and irresponsible.
Furthermore, the approx. $150,000 year earned by a small minority of MTAs who work large amounts of overtime, hardly "rivals" the base pay of state physicians which, last time I checked, was somewhere in the neighborhood of $250,000.

It also needs to be emphasized that as the only inpatient psych units found in the prison system, DMH units fill a unique niche in the delivery of mental health treatment for CDCR inmates. Inpatient psych facilites provide treatment 24 hours a day. That's 24 hour a day monitoring, assessment and intervention much of which is accomplished through routine interactions between licensed nursing staff and patients. In inpatient psych units these interactions with patients are the domain of licensed nursing staff because they represent an opportunity to clinically monitor, assess and intervene. Because they are not 24 hour a day psych treatment facilites, in all other prison settings (CCCMS. EOP, mainline etc.) such routine interactions are the domain of correctional officers. But correctional officers are not licensed nursing staff and so cannot perform this function in an inpatient psych setting. On the other hand, in a prison DMH unit, nurses without peace officer status (without custody authority) cannot effectively perform the function of inpatient psych licensed nursing staff. This is because without badges in a prison inpatient psych setting licensed nursing staff's authority (and therefore the ability to intervene therapeutically) will be usurped by correctional officers. The prison DMH unit's unique blending of prison and state hospital custody requires a unique blending of nurse and correctional peace officer, the MTA-P. The unacceptable alternative is for non-licensed staff to perform the function of licesed nursing staff in an inpatient psych setting.

Posted by: Salinas MTA-P at June 12, 2008 04:38 PM

Responding to Salinas MTA-P comments:
1) I was referring to the private sector California physicians whose average salary, according to California Healthline, is $146,405. Not sure what Salinas MTA-P is referring to when he calls my statement "dishonest and irresponsible". If anyone should have the ambition to see just how much these psychiatrists, psychologists, social workers, MTA's and others employed by the Dept. of Mental Health draw, be my guest. It will astound you. It's all listed on the California State Gov't website.

2) The security of the DMH units can very easily be handled by State Correctional Officers (C/O's). Salinas MTA-P would have you believe that only a badged LVN can perform that function. This is at best poppycock. It's just all part of the bureaucratic sham to employ MTA's. There is no law that I am aware of that states that badged LVN's are the only employees who can administer psychiatric care to inmate psychiatric patients. This is ludicrous!

The botom line is that these DMH units located on CDCR grounds are the best kept secret for employees employed there. For us taxpayers it is just another state government slot machine that pays off handsomely.

Posted by: john laughton at June 13, 2008 12:10 PM

MTA's really don't have anything to do with or benefit from the salaries of psychiatrists, psychologists and social workers. But if you insist on lumping in other state expenditures with MTA salaries next thing you know you'll be complaining about the pensions of state employees. I wonder how much the state could save by cutting your state pension down to zero? I know it wouldn't be "much of" a savings in the grand scheme of things but it would be a moral victory for the taxpayers. Why don't you head on down to CalPers tomorrow and, in the name of fiscal responsibility, tell them you don't want that check anymore? After all, your retirement check probably rivals that of the average retired California physician (private sector only, of course).

Posted by: Salinas MTA-P at June 13, 2008 09:23 PM

PRISONS NEED STAFF PHYSICAL THERAPISTS

The most important essential medical need in Prison Reform is being overlooked....that of having staff physical therapists to work daily with those in Prisons. Many prisoners need physical therapy treatment modalities and procedures, services, on a regular and frequent basis to assure good physical and mental health and welfare. Only the physical therapist, as a member of the medical team, can assess and plan treatments for many conditions sustained in varying diagnosis, especially in the Prisons.

Hiring a PT Registry (Contracting Out at about $90-$120 million annually) for needed physical therapy services is NOT THE WAY TO SAVE MONEY for repeated mandatory services. I could not locate any staff positions at this time (June 2008) for physical therapists and physical therapist assistants in the 32 California Prisons. I checked with the Prisons directly and with the Headquarters, in the Dept. of Corrections and Rehabilitation, in Sacramento. No hiring of and no positions for physical therapists could be identified.

The clinical physical therapy registry is millions of dollars more expensive than hiring staff physical therapists in the Prisons. A decent salary and benefits for staff PTs would seriously reduce the costs of care and still provide regular and frequent, daily in some cases, needed physical therapy services.

Just think about it: wouldn't you rather have a staff physical therapist readily available on a daily or "as needed" basis, at a modest cost, than have a registry person who must be contracted and paid an enormous fee and still not be available when needed most. The PT Registry does not know from day to day who will be sent to the Prison. Many times the registry therapist is not familiar with the medical condition needing attention and the progress notes from the previous registry therapist are incomplete or scribbled.

Mr. J. Clark Kelso, federally appointed receiver, should demand physical therapy staff positions in the Prisons and really be serious about getting the Best Practice for the Best Health Care at the Best Price: hire staff PTs.

The Department of Corrections and Rehabilitation in California cannot expect successful health services and benefits for prisoners if it does not establish the appropriate relationship.....which is - MAKE STAFF POSITIONS AVAILABLE FOR PHYSICAL THERAPISTS IN THE PRISONS.

Posted by: Dr. J. Ford at July 8, 2008 11:41 AM

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