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SB-380 End of life. (2021-2022)

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Date Published: 10/06/2021 09:00 PM
SB380:v93#DOCUMENT

Senate Bill No. 380
CHAPTER 542

An act to amend Sections 443.1, 443.3, 443.4, 443.5, 443.11, 443.14, 443.15, and 443.17 of, and to repeal and add Section 443.215 of, the Health and Safety Code, relating to end of life.

[ Approved by Governor  October 05, 2021. Filed with Secretary of State  October 05, 2021. ]

LEGISLATIVE COUNSEL'S DIGEST


SB 380, Eggman. End of life.
Existing law, the End of Life Option Act, until January 1, 2026, authorizes an adult who meets certain qualifications, and who has been determined by their attending physician to be suffering from a terminal disease, as defined, to make a request for an aid-in-dying drug for the purpose of ending their life. Existing law establishes the procedures for making these requests, including that 2 oral requests be made a minimum of 15 days apart, specified forms to request an aid-in-dying drug be submitted, under specified circumstances, and a final attestation be completed. Existing law requires specified information to be documented in the individual’s medical record, including, among other things, all oral and written requests for an aid-in-dying drug.
This bill would allow for an individual to qualify for aid-in-dying medication by making 2 oral requests a minimum of 48 hours apart. The bill would eliminate the requirement that an individual who is prescribed and ingests aid-in-dying medication make a final attestation. The bill would require that the date of all oral and written requests be documented in an individual’s medical record and would require that upon a transfer of care, that record be provided to the qualified individual. The bill would extend the operation of the act until January 1, 2031, thereby imposing a state-mandated local program by extending the operation of crimes for specified violations of the act.
Existing law makes participation in activities authorized pursuant to the act voluntary, and makes individual health care providers immune from liability for refusing to engage in activities authorized pursuant to its provisions, including providing information about the act or referring an individual to a provider who prescribes aid-in-dying medication.
This bill would require a health care provider who is unable or unwilling to participate under the act to inform the individual seeking an aid-in-dying medication that they do not participate, document the date of the individual’s request and the provider’s notice of their objection, and transfer their relevant medical record upon request.
Existing law authorizes a health care provider to prohibit its employees, independent contractors, or other persons or entities, including other health care providers, from participating under the act, including acting as a consulting physician, while on the premises owned or under the management or direct control of that prohibiting health care provider, or while acting within the course and scope of any employment by, or contract with, the prohibiting health care provider.
This bill would instead authorize a health care entity to prohibit employees and contractors, as specified, from participating under the act while on the entity’s premises or in the course of their employment. The bill would prohibit a health care provider or health care entity from engaging in false, misleading, or deceptive practices relating to their willingness to qualify an individual or provide a prescription for an aid-in-dying medication to a qualified individual. The bill would require a health care entity to post its current policy regarding medical aid in dying on its internet website.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 443.1 of the Health and Safety Code is amended to read:

443.1.
 As used in this part, the following definitions shall apply:
(a) “Adult” means an individual 18 years of age or older.
(b) “Aid-in-dying drug” means a drug determined and prescribed by a physician for a qualified individual, which the qualified individual may choose to self-administer to bring about their death due to a terminal disease.
(c) “Attending physician” means the physician who has primary responsibility for the health care of an individual and treatment of the individual’s terminal disease.
(d) “Attending physician checklist and compliance form” means a form, as described in Section 443.22, identifying each and every requirement that must be fulfilled by an attending physician to be in good faith compliance with this part should the attending physician choose to participate.
(e) “Capacity to make medical decisions” means that, in the opinion of an individual’s attending physician, consulting physician, psychiatrist, or psychologist, pursuant to Section 4609 of the Probate Code, the individual has the ability to understand the nature and consequences of a health care decision, the ability to understand its significant benefits, risks, and alternatives, and the ability to make and communicate an informed decision to health care providers.
(f) “Consulting physician” means a physician who is independent from the attending physician and who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding an individual’s terminal disease.
(g) “Department” means the State Department of Public Health.
(h) “Health care provider” or “provider of health care” means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code; any person licensed pursuant to the Osteopathic Initiative Act or the Chiropractic Initiative Act; and any person certified pursuant to Division 2.5 (commencing with Section 1797) of this code.
(i) “Health care entity” means any clinic, health dispensary, or health facility licensed pursuant to Division 2 (commencing with Section 1200), including a general hospital, medical clinic, nursing home or hospice facility. A health care entity does not include individuals described in subdivision (h).
(j) “Informed decision” means a decision by an individual with a terminal disease to request and obtain a prescription for a drug that the individual may self-administer to end the individual’s life, that is based on an understanding and acknowledgment of the relevant facts, and that is made after being fully informed by the attending physician of all of the following:
(1) The individual’s medical diagnosis and prognosis.
(2) The potential risks associated with taking the drug to be prescribed.
(3) The probable result of taking the drug to be prescribed.
(4) The possibility that the individual may choose not to obtain the drug or may obtain the drug but may decide not to ingest it.
(5) The feasible alternatives or additional treatment opportunities, including, but not limited to, comfort care, hospice care, palliative care, and pain control.
(k) “Medically confirmed” means the medical diagnosis and prognosis of the attending physician has been confirmed by a consulting physician who has examined the individual and the individual’s relevant medical records.
(l) “Mental health specialist assessment” means one or more consultations between an individual and a mental health specialist for the purpose of determining that the individual has the capacity to make medical decisions and is not suffering from impaired judgment due to a mental disorder.
(m) “Mental health specialist” means a psychiatrist or a licensed psychologist.
(n) “Physician” means a doctor of medicine or osteopathy currently licensed to practice medicine in this state.
(o) “Public place” means any street, alley, park, public building, any place of business or assembly open to or frequented by the public, and any other place that is open to the public view, or to which the public has access. “Public place” does not include a health care entity.
(p) “Qualified individual” means an adult who has the capacity to make medical decisions, is a resident of California, and has satisfied the requirements of this part in order to obtain a prescription for a drug to end their life.
(q) “Self-administer” means a qualified individual’s affirmative, conscious, and physical act of administering and ingesting the aid-in-dying drug to bring about their own death.
(r) “Terminal disease” means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, result in death within six months.

SEC. 2.

 Section 443.3 of the Health and Safety Code is amended to read:

443.3.
 (a) An individual seeking to obtain a prescription for an aid-in-dying drug pursuant to this part shall submit two oral requests, a minimum of 48 hours apart, and a written request to their attending physician. An attending physician shall directly, and not through a designee, receive a request required pursuant to this section and shall ensure the date of a request is documented in an individual’s medical record. An oral request documented in an individual’s medical record shall not be disregarded by an attending physician solely because it was received by a prior attending physician or an attending physician who chose not to participate.
(b) A valid written request for an aid-in-dying drug under subdivision (a) shall meet all of the following conditions:
(1) The request shall be in the form described in Section 443.11.
(2) The request shall be signed and dated, in the presence of two witnesses, by the individual seeking the aid-in-dying drug.
(3) The request shall be witnessed by at least two other adult persons who, in the presence of the individual, shall attest that to the best of their knowledge and belief the individual is all of the following:
(A) An individual who is personally known to them or has provided proof of identity.
(B) An individual who voluntarily signed this request in their presence.
(C) An individual whom they believe to be of sound mind and not under duress, fraud, or undue influence.
(D) Not an individual for whom either of them is the attending physician, consulting physician, or mental health specialist.
(c) Only one of the two witnesses at the time the written request is signed may:
(1) Be related to the qualified individual by blood, marriage, registered domestic partnership, or adoption or be entitled to a portion of the individual’s estate upon death.
(2) Own, operate, or be employed at a health care entity where the individual is receiving medical treatment or resides.
(d) The attending physician, consulting physician, or mental health specialist of the individual shall not be one of the witnesses required pursuant to paragraph (3) of subdivision (b).

SEC. 3.

 Section 443.4 of the Health and Safety Code is amended to read:

443.4.
 (a) An individual may at any time withdraw or rescind their request for an aid-in-dying drug, or decide not to ingest an aid-in-dying drug, without regard to the individual’s mental state.
(b) A prescription for an aid-in-dying drug provided under this part may not be written without the attending physician directly, and not through a designee, offering the individual an opportunity to withdraw or rescind the request.
(c) If the individual decides to transfer care to another physician, upon request of the individual the physician shall transfer all relevant medical records including written documentation including the dates of the individual’s oral and written requests seeking to obtain a prescription for an aid-in-dying drug.

SEC. 4.

 Section 443.5 of the Health and Safety Code is amended to read:

443.5.
 (a) Before prescribing an aid-in-dying drug, the attending physician shall do all of the following:
(1) Make the initial determination of all of the following:
(A) (i) Whether the requesting adult has the capacity to make medical decisions.
(ii) If there are indications of a mental disorder, the physician shall refer the individual for a mental health specialist assessment.
(iii) If a mental health specialist assessment referral is made, no aid-in-dying drugs shall be prescribed until the mental health specialist determines that the individual has the capacity to make medical decisions and is not suffering from impaired judgment due to a mental disorder.
(B) Whether the requesting adult has a terminal disease.
(C) Whether the requesting adult has voluntarily made the request for an aid-in-dying drug pursuant to Sections 443.2 and 443.3.
(D) Whether the requesting adult is a qualified individual pursuant to subdivision (q) of Section 443.1.
(2) Confirm that the individual is making an informed decision by discussing with them all of the following:
(A) Their medical diagnosis and prognosis.
(B) The potential risks associated with ingesting the requested aid-in-dying drug.
(C) The probable result of ingesting the aid-in-dying drug.
(D) The possibility that they may choose to obtain the aid-in-dying drug but not take it.
(E) The feasible alternatives or additional treatment options, including, but not limited to, comfort care, hospice care, palliative care, and pain control.
(3) Refer the individual to a consulting physician for medical confirmation of the diagnosis and prognosis, and for a determination that the individual has the capacity to make medical decisions and has complied with the provisions of this part.
(4) Confirm that the qualified individual’s request does not arise from coercion or undue influence by another person by discussing with the qualified individual, outside of the presence of any other persons, except for an interpreter as required pursuant to this part, whether or not the qualified individual is feeling coerced or unduly influenced by another person.
(5) Counsel the qualified individual about the importance of all of the following:
(A) Having another person present when they ingest the aid-in-dying drug prescribed pursuant to this part.
(B) Not ingesting the aid-in-dying drug in a public place.
(C) Notifying the next of kin of their request for an aid-in-dying drug. A qualified individual who declines or is unable to notify next of kin shall not have their request denied for that reason.
(D) Participating in a hospice program.
(E) Maintaining the aid-in-dying drug in a safe and secure location until the time that the qualified individual will ingest it.
(6) Inform the individual that they may withdraw or rescind the request for an aid-in-dying drug at any time and in any manner.
(7) Offer the individual an opportunity to withdraw or rescind the request for an aid-in-dying drug before prescribing the aid-in-dying drug.
(8) Verify, immediately before writing the prescription for an aid-in-dying drug, that the qualified individual is making an informed decision.
(9) Confirm that all requirements are met and all appropriate steps are carried out in accordance with this part before writing a prescription for an aid-in-dying drug.
(10) Fulfill the record documentation required under Sections 443.8 and 443.19.
(11) Complete the attending physician checklist and compliance form, as described in Section 443.22, include it and the consulting physician compliance form in the individual’s medical record, and submit both forms to the State Department of Public Health.
(b) If the conditions set forth in subdivision (a) are satisfied, the attending physician may deliver the aid-in-dying drug in any of the following ways:
(1) Dispensing the aid-in-dying drug directly, including ancillary medication intended to minimize the qualified individual’s discomfort, if the attending physician meets all of the following criteria:
(A) Is authorized to dispense medicine under California law.
(B) Has a current United States Drug Enforcement Administration (USDEA) certificate.
(C) Complies with any applicable administrative rule or regulation.
(2) With the qualified individual’s written consent, contacting a pharmacist, informing the pharmacist of the prescriptions, and delivering the written prescriptions personally, by mail, or electronically to the pharmacist, who may dispense the drug to the qualified individual, the attending physician, or a person expressly designated by the qualified individual and with the designation delivered to the pharmacist in writing or verbally.
(c) Delivery of the dispensed drug to the qualified individual, the attending physician, or a person expressly designated by the qualified individual may be made by personal delivery, or, with a signature required on delivery, by United Parcel Service, United States Postal Service, FedEx, or by messenger service.

SEC. 5.

 Section 443.11 of the Health and Safety Code is amended to read:

443.11.
 (a) A request for an aid-in-dying drug as authorized by this part shall be in the following form:
REQUEST FOR AN AID-IN-DYING DRUG TO END MY LIFE IN A HUMANE AND DIGNIFIED MANNER I, ......................................................, am an adult of sound mind and a resident of the State of California.
I am suffering from ................, which my attending physician has determined is in its terminal phase and which has been medically confirmed.
I have been fully informed of my diagnosis and prognosis, the nature of the aid-in-dying drug to be prescribed and potential associated risks, the expected result, and the feasible alternatives or additional treatment options, including comfort care, hospice care, palliative care, and pain control.
I request that my attending physician prescribe an aid-in-dying drug that will end my life in a humane and dignified manner if I choose to take it, and I authorize my attending physician to contact any pharmacist about my request.
INITIAL ONE:
............ I have informed one or more members of my family of my decision and taken their opinions into consideration.
............ I have decided not to inform my family of my decision.
............ I have no family to inform of my decision.
I understand that I have the right to withdraw or rescind this request at any time.
I understand the full import of this request and I expect to die if I take the aid-in-dying drug to be prescribed. My attending physician has counseled me about the possibility that my death may not be immediately upon the consumption of the drug.
I make this request voluntarily, without reservation, and without being coerced.
Signed:..............................................
Dated:...............................................
DECLARATION OF WITNESSES
We declare that the person signing this request:
(a) is personally known to us or has provided proof of identity;
(b) voluntarily signed this request in our presence;
(c) is an individual whom we believe to be of sound mind and not under duress, fraud, or undue influence; and
(d) is not an individual for whom either of us is the attending physician, consulting physician, or mental health specialist.
............................Witness 1/Date
............................Witness 2/Date
NOTE: Only one of the two witnesses may be a relative (by blood, marriage, registered domestic partnership, or adoption) of the person signing this request or be entitled to a portion of the person’s estate upon death. Only one of the two witnesses may own, operate, or be employed at a health care entity where the person is a patient or resident.
(b) (1) The written language of the request shall be written in the same translated language as any conversations, consultations, or interpreted conversations or consultations between a patient and their attending or consulting physicians.
(2) Notwithstanding paragraph (1), the written request may be prepared in English even when the conversations or consultations or interpreted conversations or consultations were conducted in a language other than English if the English language form includes an attached interpreter’s declaration that is signed under penalty of perjury. The interpreter’s declaration shall state words to the effect that:
I, (INSERT NAME OF INTERPRETER), am fluent in English and (INSERT TARGET LANGUAGE).
On (insert date) at approximately (insert time), I read the “Request for an Aid-In-Dying Drug to End My Life” to (insert name of individual/patient) in (insert target language).
Mr./Ms./Mx. (insert name of patient/qualified individual) affirmed to me that they understood the content of this form and affirmed their desire to sign this form under their own power and volition and that the request to sign the form followed consultations with an attending and consulting physician.
I declare that I am fluent in English and (insert target language) and further declare under penalty of perjury that the foregoing is true and correct.
Executed at (insert city, county, and state) on this (insert day of month) of (insert month), (insert year).
X______Interpreter signature
X______Interpreter printed name
X______Interpreter address
(3) An interpreter whose services are provided pursuant to paragraph (2) shall not be related to the qualified individual by blood, marriage, registered domestic partnership, or adoption or be entitled to a portion of the person’s estate upon death. An interpreter whose services are provided pursuant to paragraph (2) shall meet the standards promulgated by the California Healthcare Interpreting Association or the National Council on Interpreting in Health Care or other standards deemed acceptable by the department for health care providers in California.

SEC. 6.

 Section 443.14 of the Health and Safety Code is amended to read:

443.14.
 (a) Notwithstanding any other law, a person shall not be subject to civil or criminal liability solely because the person was present when the qualified individual self-administers the prescribed aid-in-dying drug. A person who is present may, without civil or criminal liability, assist the qualified individual by preparing the aid-in-dying drug so long as the person does not assist the qualified person in ingesting the aid-in-dying drug.
(b) A health care provider, health care entity, or professional organization or association shall not subject an individual to censure, discipline, suspension, loss of license, loss of privileges, loss of membership, or other penalty for participating in good faith compliance with this part or for refusing to participate in accordance with subdivision (e).
(c) Notwithstanding any other law, a health care provider or a health care entity shall not be subject to civil, criminal, administrative, disciplinary, employment, credentialing, professional discipline, contractual liability, or medical staff action, sanction, or penalty or other liability for participating in this part. This subdivision does not limit the application of, or provide immunity from, Section 443.15, 443.16, or 443.17.
(d) (1) A request by a qualified individual to an attending physician to provide an aid-in-dying drug in good faith compliance with the provisions of this part shall not provide the sole basis for the appointment of a guardian or conservator.
(2) Actions taken in compliance with the provisions of this part shall not constitute or provide the basis for any claim of neglect or elder abuse for any purpose of law.
(e) (1) Participation under this part shall be voluntary. Notwithstanding Sections 442 to 442.7, inclusive, a person or entity that elects, for reasons of conscience, morality, or ethics, not to participate is not required to participate under this part. This subdivision does not limit the application of, or excuse noncompliance with, paragraphs (2), (4), and (5) of this subdivision or subdivision (b), (i), or (j) of Section 443.15, as applicable.
(2) A health care provider who objects for reasons of conscience, morality, or ethics to participate under this part shall not be required to participate. If a health care provider is unable or unwilling to participate under this part, as defined in subdivision (f) of Section 443.15, the provider shall, at a minimum, inform the individual that they do not participate in the End of Life Option Act, document the individual’s date of request and provider’s notice to the individual of their objection in the medical record, and transfer the individual’s relevant medical record upon request.
(3) A health care provider or health care entity is not subject to civil, criminal, administrative, disciplinary, employment, credentialing, professional discipline, contractual liability, or medical staff action, sanction, or penalty or other liability for refusing to participate under this part, as defined in paragraph (2) of subdivision (f) of Section 443.15.
(4) If a health care provider is unable or unwilling to carry out a qualified individual’s request under this part and the qualified individual transfers care to a new health care provider or health care entity, the individual’s relevant medical records shall be provided to the individual and, upon the individual’s request, timely transferred with documentation of the date of the individual’s request for a prescription for aid-in-dying drug in the medical record, pursuant to law.
(5) A health care provider or a health care entity shall not engage in false, misleading, or deceptive practices relating to a willingness to qualify an individual or provide a prescription to a qualified individual under this part.

SEC. 7.

 Section 443.15 of the Health and Safety Code is amended to read:

443.15.
 (a) Subject to subdivision (b), notwithstanding any other law, a health care entity may prohibit its employees, independent contractors, or other persons or entities, including health care providers, from participating under this part while on premises owned or under the management or direct control of that health care entity or while acting within the course and scope of any employment by, or contract with, the entity.
(b) A health care entity shall first give notice upon employment or other affiliation and thereafter annual notice of the policy concerning this part to the individual or entity. An entity that fails to provide notice to an individual or entity in compliance with this subdivision shall not be entitled to enforce such a policy against that individual or entity. For purposes of this subdivision, posting on the entity’s public internet website the entity’s current policy governing medical aid in dying shall satisfy the annual notice requirement.
(c) Subject to compliance with subdivision (b), the health care entity may take action, including, but not limited to, the following, as applicable, against any individual or entity that violates this policy:
(1) Loss of privileges, loss of membership, or other action authorized by the bylaws or rules and regulations of the medical staff.
(2) Suspension, loss of employment, or other action authorized by the policies and practices of the health care entity.
(3) Termination of any lease or other contract between the health care entity and the individual or entity that violates the policy.
(4) Imposition of any other nonmonetary remedy provided for in any lease or contract between the health care entity and the individual or entity in violation of the policy.
(d) This section does not prevent, or allow a health care entity to prohibit, any health care provider, employee, independent contractor, or other person or entity from any of the following:
(1) Participating, or entering into an agreement to participate, under this part, while on premises that are not owned or under the management or direct control of the health care entity or while acting outside the course and scope of the participant’s duties as an employee of, or an independent contractor for, the health care entity.
(2) Participating, or entering into an agreement to participate, under this part as an attending physician or consulting physician while on premises that are not owned or under the management or direct control of the health care entity.
(e) In taking actions pursuant to subdivision (c), a health care entity shall comply with all procedures required by law, its own policies or procedures, and any contract with the individual or entity in violation of the policy, as applicable.
(f) For purposes of this part:
(1) “Notice” means a separate statement in writing advising of the health care entity policy with respect to participating under this part.
(2) “Participating, or entering into an agreement to participate, under this part” means doing or entering into an agreement to do any one or more of the following:
(A) Performing the duties of an attending physician as specified in Section 443.5.
(B) Performing the duties of a consulting physician as specified in Section 443.6.
(C) Performing the duties of a mental health specialist, in the circumstance that a referral to one is made.
(D) Delivering the prescription for, dispensing, or delivering the dispensed aid-in-dying drug pursuant to paragraph (2) of subdivision (b) of, and subdivision (c) of, Section 443.5.
(E) Being present when the qualified individual takes the aid-in-dying drug prescribed pursuant to this part.
(3) “Participating, or entering into an agreement to participate, under this part” does not include doing, or entering into an agreement to do, any of the following:
(A) Diagnosing whether a patient has a terminal disease, informing the patient of the medical prognosis, or determining whether a patient has the capacity to make decisions.
(B) Providing information to a patient about this part.
(C) Providing a patient, upon the patient’s request, with a referral to another health care provider for the purposes of participating under this part.
(g) Any action taken by a health care entity pursuant to this section shall not be reportable under Sections 800 to 809.9, inclusive, of the Business and Professions Code. The fact that a health care provider participates under this part shall not be the sole basis for a complaint or report of unprofessional or dishonorable conduct under Sections 800 to 809.9, inclusive, of the Business and Professions Code.
(h) This part does not prevent a health care provider from providing an individual with health care services that do not constitute participation in this part.
(i) Each health care entity shall post on the entity’s public internet website the entity’s current policy governing medical aid in dying.
(j) A health care entity shall not engage in false, misleading, or deceptive practices relating to its policy concerning end-of-life care services nor engage in coercion or undue influence under this part.

SEC. 8.

 Section 443.17 of the Health and Safety Code is amended to read:

443.17.
 (a) Knowingly altering or forging a request for an aid-in-dying drug to end an individual’s life without their authorization or concealing or destroying a withdrawal or rescission of a request for an aid-in-dying drug is punishable as a felony if the act is done with the intent or effect of causing the individual’s death.
(b) Knowingly coercing or exerting undue influence on an individual to request or ingest an aid-in-dying drug for the purpose of ending their life or to destroy a withdrawal or rescission of a request, or to administer an aid-in-dying drug to an individual without their knowledge or consent, is punishable as a felony.
(c) For purposes of this section, “knowingly” has the meaning provided in Section 7 of the Penal Code.
(d) The attending physician, consulting physician, or mental health specialist shall not be related to the individual by blood, marriage, registered domestic partnership, or adoption, or be entitled to a portion of the individual’s estate upon death.
(e) This section does not limit civil liability or damages arising from negligent conduct or intentional misconduct in carrying out actions otherwise authorized by this part by any person, health care provider, or health care entity.
(f) The penalties in this section do not preclude criminal penalties applicable under any law for conduct inconsistent with the provisions of this part.

SEC. 9.

 Section 443.215 of the Health and Safety Code is repealed.

SEC. 10.

 Section 443.215 is added to the Health and Safety Code, to read:

443.215.
 This part shall remain in effect only until January 1, 2031, and as of that date is repealed.

SEC. 11.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.