SENATE DOCKET, NO. 1718        FILED ON: 1/20/2017

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 874

The Commonwealth of Massachusetts

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PRESENTED BY:

Patricia D. Jehlen

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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 medical placement of terminal and incapacitated inmates.

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PETITION OF:

SENATE DOCKET, NO. 1718        FILED ON: 1/20/2017

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 874

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 2433 OF 2015-2016.]

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 medical placement of terminal and 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 unless the context clearly requires otherwise:

“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 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 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 conditional medical parole.

“Department”, the department of correction.

“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.

“Secretary”, the secretary of public safety and security.

“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 18 months and that is so debilitating that the prisoner does not pose a public safety risk.

(b) Except as otherwise provided in this section and notwithstanding any general or special law to the contrary, a prisoner may be eligible for 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 conditional medical parole upon a written request for 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 conditional medical parole, the commissioner shall petition the parole board for an order permitting the prisoner to be released within 10 days of receipt of the recommendation. 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 release of a prisoner for conditional medical parole and, if applicable under chapter 258B, the victim or the victim’s family, that the prisoner is being considered for conditional medical parole. The parties receiving the notice shall have an opportunity to be heard through a written or oral statement as to the release 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 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 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 release of a prisoner for 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 conditional medical parole upon a written request for 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 parole board for an order permitting the prisoner to be released 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 release of a prisoner for conditional medical parole and, if applicable under chapter 258B, the victim or the victim’s family, that the prisoner is being considered for 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 release 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 release of a prisoner for 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 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 parole board shall, upon making a determination that a prisoner is terminally ill or permanently incapacitated, release a prisoner under conditional medical parole. A prisoner granted release under this section shall be under the jurisdiction, supervision and control of the parole board. The 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 released prisoner’s care be consistent with the care specified in the conditional medical parole plan approved by the board;

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

(iii) the released prisoner comply with conditions of release set by the 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 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 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 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 conditional medical parole, the 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 released prisoner shall reside and, if applicable under chapter 258B, the victim or the victim’s family of the prisoner’s release and the terms and conditions of release.

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

(g) The commissioner and the secretary shall promulgate rules and regulations necessary to implement this section.

(h) The commissioner, sheriffs and the secretary 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, the secretary and the 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 conditional medical parole under subsections (c), (d), and (e) and the race and ethnicity of each applicant; (iii) the number of prisoners who have been granted conditional medical parole and the race and ethnicity of each prisoner granted release for the prior fiscal year and total to date; (iv) the nature of the illness of the applicants for conditional medical parole; (v) the counties to which the prisoners have been released; (vi) the nature of the placement pursuant to the conditional medical parole plan; (vii) the categories of reasons for denial for prisoners who have been denied conditional medical parole; (viii) the number of prisoners petitioning for conditional medical parole on more than 1 occasion; (ix) the number of prisoners released 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 correction and the secretary of public safety and security shall promulgate rules and regulations necessary to implement section 119A of chapter 127 of the General Laws not later than 6 months after the effective date of this act.