HOUSE DOCKET, NO. 1645        FILED ON: 1/19/2017

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 3494

The Commonwealth of Massachusetts

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PRESENTED BY:

Claire D. Cronin and Hannah Kane

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act relative to supervised medical parole of terminal and extraordinarily incapacitated inmates.

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PETITION OF:

HOUSE DOCKET, NO. 1645        FILED ON: 1/19/2017

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 3494

The Commonwealth of Massachusetts

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In the One Hundred and Ninetieth General Court
(2017-2018)

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An Act relative to supervised medical parole of terminal and extraordinarily incapacitated inmates.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

              SECTION 1. Chapter 127 of the General Laws is hereby amended by inserting after section 119 the following section:-

              Section 119A.  (a) As used in this section, the following words shall have the following meanings:-

              “Supervised conditional medical parole plan”, a comprehensive written medical and psychosocial care plan that is specific to the prisoner and shall include, but not be limited to: (i) the proposed course of treatment; (ii) the proposed site for treatment and post-treatment care; (iii) documentation that medical providers qualified to provide the medical services identified in the supervised conditional medical parole plan are prepared to provide those services; and (iv) the financial program in place to cover the cost of the plan for the duration of the supervised conditional medical parole, which shall include eligibility for enrollment in commercial insurance, Medicare or Medicaid or access to other adequate financial resources for the duration of the supervised conditional medical parole.

                    “Permanent incapacitation”, as determined by a licensed physician, an irreversible physical incapacitation as a result of a medical condition that was unknown at the time of sentencing, diagnosed after the time of sentencing or, since the time of sentencing, has progressed such that the prisoner does not pose a public safety risk.

              “Terminal illness”, an incurable condition caused by illness or disease that was unknown at the time of sentencing, diagnosed after the time of sentencing or, since the time of sentencing, has progressed, that will likely cause the death of the prisoner within 12 months and that is so debilitating that the prisoner does not pose a public safety risk.

(b) There shall be in the department of correction, but not subject to its jurisdiction, an independent medical parole board, consisting of five members: the chair of the parole board, one retired judge from either the Boston municipal court, district court, or superior court designated by the chief justice of the trial courts, two medical doctors designated by the Massachusetts Medical Society, and one person designated by the governor.  The governor’s designee shall have a graduate degree from an accredited school and at least five years of training and experience in one of the following fields – public health, probation, corrections, law, criminal justice, psychiatry, psychology, sociology, or social work.

Members of the board shall be appointed for terms of six years; provided however, that the initial terms of the first members of the board shall be staggered so three members including at least one of the medical doctors, serve terms of six years and two members serve initial terms of three years.  No member shall serve more than two full six-year terms. The term of the parole board chair shall end when he or she is no longer in that position and his or her successor shall be appointed to the medical parole board. Responsibility for chairing medical parole hearings shall rotate among the members on an annual basis, with no one member serving as chair more than once in five years. In the case of the absence or disability of the chair during a hearing, the board may vote to designate one of the members to act as chair during such absence or disability. 

Members of the board shall serve without compensation, but each member shall be reimbursed by the commonwealth for all reasonable expenses incurred in the performance of official duties.

              (b) Except as otherwise provided in this section and notwithstanding any general or special law to the contrary, a prisoner may be eligible for supervised conditional medical parole due to a terminal illness or permanent incapacitation under the procedures described in subsections (c) and (d).

              (c) The superintendent of a correctional facility shall consider a prisoner for supervised conditional medical parole upon a written request for supervised conditional medical parole filed by the prisoner, the prisoner’s attorney, the prisoner’s next of kin, the commissioner’s medical provider or a member of the correctional staff. The superintendent shall review the request for consideration and make a recommendation to the commissioner within 21 days of receipt of the request. If the superintendent recommends supervised conditional medical parole, the commissioner shall petition the medical parole board within 10 days of receipt of the recommendation for an order permitting the prisoner to be medically paroled. The commissioner shall notify, in writing, the district attorney and the prisoner, the prisoner’s attorney, the prisoner’s next of kin or a member of the correctional staff requesting the medical parole of a prisoner for supervised conditional medical parole and, if applicable under chapter 258B, the victim or the victim’s family, that the prisoner is being considered for supervised conditional medical parole. The parties receiving the notice shall have an opportunity to be heard through a written or oral statement as to the medical parole of the prisoner. The commissioner shall file an affidavit with the petition confirming that the notice has been provided. The commissioner shall file with the petition a supervised conditional medical parole plan and an assessment of the prisoner’s medical and psychosocial condition and the risk the prisoner poses to society, including:

                            (i) a written diagnosis by a physician licensed to practice medicine in the commonwealth under section 2 of chapter 112 that includes: (A) a description of the terminal illness or permanent incapacitation; and (B) a prognosis concerning the likelihood of recovery from the terminal illness or permanent incapacitation; provided, however, that the physician shall be employed by the department or shall be a contract provider used by the department for the evaluation and recommended treatment of prisoners; and

                            (ii) an assessment of the risk for violence and recidivism that the prisoner poses to society.

              If the superintendent denies the request for supervised conditional medical parole, the superintendent shall provide to the prisoner or the prisoner’s attorney, the prisoner’s next of kin or a member of the correctional staff requesting the supervised conditional medical parole on behalf of the prisoner a statement, in writing, of the reason for the denial. A prisoner electing to appeal a denial made by the superintendent shall file an appeal with the commissioner within 30 days of receiving notice of the denial.

              (d) A sheriff shall consider a prisoner for supervised conditional medical parole upon a written request for supervised conditional medical parole filed by the prisoner, the prisoner’s attorney, the prisoner’s next of kin, the sheriff’s medical provider or a member of the correctional staff. The sheriff shall review the request within 21 days of receipt of the request. If, after investigation of the request, the sheriff determines that the request should be approved, the sheriff shall petition the medical parole board for an order permitting the prisoner to be medically paroled within 10 days of receipt of the recommendation. The sheriff shall notify, in writing, the district attorney and the prisoner, the prisoner’s attorney, the prisoner’s next of kin or a member of the correctional staff requesting the supervised conditional medical parole and, if applicable under chapter 258B, the victim or the victim’s family, that the prisoner is being considered for supervised conditional medical parole subject to this section. The parties receiving the notice shall have an opportunity to be heard through a written or oral statement as to the medical parole of the prisoner. The sheriff shall file an affidavit with the petition confirming that the notice has been provided. The sheriff shall file with the petition a conditional medical parole plan and an assessment of the prisoner’s medical and psychosocial condition and the risk the prisoner poses to society, including:

                            (i) a written diagnosis by a physician licensed to practice medicine in the commonwealth under section 2 of chapter 112 that includes: (A) a description of the terminal illness or permanent incapacitation; and (B) a prognosis concerning the likelihood of recovery from the terminal illness or permanent incapacitation; provided, however, that the physician shall be employed by the department or sheriff, or shall be employed by a hospital or medical facility used by the department or sheriff for the medical treatment of prisoners; and

                            (ii) an assessment of the risk for violence and recidivism that the prisoner poses to society.

              If the sheriff denies the request for conditional medical parole, the sheriff shall provide to the prisoner or the prisoner’s attorney, the prisoner’s next of kin or a member of the correctional staff requesting the conditional medical parole on behalf of the prisoner a statement, in writing, of the reason for the denial. A prisoner electing to appeal a denial made by the sheriff shall file an appeal with the secretary within 30 days of receiving notice of the denial.

              (e) The medical parole board shall conduct a hearing not later than 15 days after its receipt of the commissioner’s or sheriff’s petition and shall issue a written decision within 30 days of receipt of the commissioner’s or sheriff’s petition which shall be accompanied by a statement of reasons for the decision, including a determination of each issue of fact or law necessary to the decision. The medical parole board shall, upon making a determination that a prisoner is terminally ill or permanently incapacitated, release a prisoner under supervised conditional medical parole. A prisoner granted medical parole under this section shall be under the jurisdiction, supervision and control of the medical parole board. The medical parole board shall impose terms and conditions for conditional medical parole that shall apply through the date upon which the prisoner’s sentence would have expired. These conditions shall require, but shall not be limited to:

                            (i) the medially paroled prisoner’s care be consistent with the care specified in the conditional medical parole plan approved by the board;

                            (ii) the medically paroled prisoner cooperate with and comply with the prescribed conditional medical parole plan and with reasonable requirements of medical providers to whom the  prisoner is to be referred for continued treatment;

                            (iii) the medically paroled prisoner comply with conditions of medical parole set by the medical parole board.

              If the prisoner eligible for conditional medical parole pursuant to this section is convicted and serving a sentence pursuant to section 1 of chapter 265, the full membership of the medical parole board shall conduct the hearing unless a member of the board is determined to be unavailable. For the purposes of this section, the term “unavailable” shall mean that a board member has a conflict of interest to the extent that the board member cannot render a fair and impartial decision or that the appearance of a board member would be unduly burdensome because of illness, incapacitation or other circumstance. Whether a member is unavailable under this section shall be determined by the chair. Board members shall appear unless the chair determines them to be unavailable. A medical parole hearing shall not proceed for a prisoner serving a sentence pursuant to said section 1 of said chapter 265 unless a majority of the board is present at the public hearing. For prisoners convicted and serving a sentence pursuant to said section 1 of said chapter 265, a vote of 2/3 of the members present is required to grant conditional medical parole. The medical parole board shall provide reasonable accommodations for prisoners appearing before it for a conditional medical parole hearing under this section including, but not limited to, video teleconferencing when appropriate.

              Not less than 24 hours before the date of a prisoner’s release due to supervised conditional medical parole, the medical parole board shall notify, in writing, the district attorney, the department of state police, the police department in the city or town in which the medically paroled prisoner shall reside and, if applicable under chapter 258B, the victim or the victim’s family of the terms and conditions of the prisoner’s medical parole.

              The medical parole board may revise, alter or amend the terms and conditions of a supervised conditional medical parole at any time. A parole officer may promptly arrest a medical parolee and bring the medical parolee before the board for a medical parole violation hearing if the medical parole board receives credible information that a prisoner has failed to comply with a reasonable condition set upon the medical parolee’s release or upon discovery that the terminal illness or permanent incapacitation has improved to the extent that the medical parolee would no longer be eligible for supervised conditional medical parole under this section. If the board subsequently determines that the medical parolee violated a condition of supervised conditional medical parole or that the terminal illness or permanent incapacitation has improved to the extent that the medical parolee would no longer be eligible for supervised conditional medical parole pursuant to this section, the medical parolee shall resume serving the balance of the sentence with credit given only for the duration of the medical parolee’s supervised conditional medical parole served in compliance with all reasonable conditions in this subsection. Revocation of a medical parolee’s supervised conditional medical parole due to a change in the prisoner’s medical condition shall not preclude a medical parolee’s eligibility for supervised conditional medical parole in the future or for another form of release permitted by law.

              (f) A prisoner, commissioner or sheriff aggrieved by a decision denying supervised conditional medical parole made under this section may petition for relief in the superior court in the county of the correctional facility where the prisoner resides or in Suffolk county for a de novo review of the denial.  The petition shall be filed not later than 30 days after receipt of notice of the decision and shall be served on the parole board not later than 7 days after receipt of notice of the decision.  The medical parole board shall file its answer, which shall include a copy of its statement of reasons, not later than 14 days after service of the complaint.  The court may affirm the decision of the board, remand the matter for further proceedings before the board or set aside a decision of the board if it finds by a preponderance of the evidence that the prisoner is terminally ill or permanently incapacitated. The court shall conduct an evidentiary hearing on the petition not later than 21 days after filing of the answer and shall issue its decision not later than 14 days after completion of the hearing unless the court orders otherwise upon a finding of good cause.

              Affirmation of the medical parole board’s denial of supervised conditional medical parole shall not affect a prisoner’s eligibility for any other form of release permitted by law.

              A decision by the court pursuant to this section shall be final, subject to appeal in the manner provided for appeal of civil proceedings; provided, however, that the decision shall not preclude a prisoner’s eligibility for supervised conditional medical parole in the future.

              (g) The commissioner of the department of corrections and the Massachusetts sheriffs association shall promulgate rules, regulations, policies, and procedures necessary to implement this section.

              (h) The commissioner of the department of corrections, sheriffs, and the secretary of the executive office of public safety and security shall educate, inform and train employees about this section and shall provide those employees with appropriate resources and services to implement this section.

              (i) The commissioner of the department of corrections, Massachusetts sheriffs association, and the medical parole board shall together file an annual report not later than March 1 with the clerks of the senate and the house of representatives, the chairs of the senate and house committees on ways and means and the senate and house chairs of the joint committee on the judiciary detailing: (i) each prisoner in the custody of the department who is receiving treatment for a terminal illness and each prisoner in the custody of the department who is receiving treatment for a permanent incapacitation, including the race and ethnicity of the prisoner, the offense for which the prisoner was sentenced and a detailed description of the prisoner’s physical and mental condition; provided, however, that identifying information shall be withheld from the report; (ii) the number of prisoners in the custody of the department or the sheriffs who applied for supervised conditional medical parole under subsections (c), (d), and (e) and the race and ethnicity of each applicant; (iii) the number, race and ethnicity of prisoners who have been granted supervised conditional medical parole for the prior fiscal year and total to date; (iv) the nature of the illness of the applicants for supervised conditional medical parole; (v) the counties to which the prisoners have been medically paroled; (vi) the nature of the placement pursuant to the supervised conditional medical parole plan; (vii) the categories of reasons for denial for prisoners who have been denied supervised conditional medical parole; (viii) the number of prisoners petitioning for supervised conditional medical parole on more than 1 occasion; (ix) the number of prisoners medically paroled who have been returned to the custody of the department and the reasons for those returns; and (x) the number of petitions for relief sought under subsection (f).

              SECTION 2.  The commissioner of the department of corrections and the Massachusetts sheriffs association shall promulgate rules, regulations, policies, and procedures necessary to implement section 119A of chapter 127 of the General Laws not later than 6 months after the effective date of this act.