HOUSE DOCKET, NO. 3975        FILED ON: 2/19/2021

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2448

The Commonwealth of Massachusetts

_________________

PRESENTED BY:

Mindy Domb

_________________

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 to remove barriers to medical parole.

_______________

PETITION OF:

HOUSE DOCKET, NO. 3975        FILED ON: 2/19/2021

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2448

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninety-Second General Court
(2021-2022)

_______________

An Act to remove barriers to medical parole.

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. Section 119A of Chapter 127, as appearing in 2018 Official Edition, is hereby amended by striking out, in lines 17-18, the words “and that is so debilitating that the prisoner does not pose a public safety risk”

SECTION 2. Said section 119A of Chapter 127, is hereby amended by inserting, after the word “risk” in line 19, the following new definition:-

“Surrogate decision-maker”, a person chosen by an incarcerated person to advocate on their behalf. Such a surrogate may include next-of-kin, close family member, attorney, health care proxy, or an individual with power of attorney for the incarcerated person

SECTION 3. Said section 119A of Chapter 127, is hereby amended by striking out, in lines 24-25, the words “and that is so debilitating that the prisoner does not pose a public safety risk”

SECTION 4. Said section 119A of Chapter 127, is hereby amended in subsection (c)(1), by inserting, in line 42, after the word “society” the following:-

“Such assessment shall be supported, if requested by the petitioner, by 72-hours of routine video surveillance of the prisoner from the prison, demonstrating the prisoner’s level of incapacity.”

SECTION 5. Said section 119A of Chapter 127, is hereby amended by inserting, after subsection (c)(1), the following new subsections:-

“(c)(2) The Department shall submit written petitions on behalf of permanently cognitively incapacitated prisoners eligible for medical parole. The Department must first contact the prisoner’s next of kin, surrogate decision-maker, attorney or Prisoners’ Legal Services, and notify them of the opportunity to file a petition in lieu of the Department or to submit a written statement. The Department’s obligation to submit written petitions on behalf of cognitively incapacitated prisoners does not preclude other appropriate parties from filing written petitions on behalf of incarcerated persons with cognitive incapacitation. Such parties shall have access to all records necessary to file the petition and the appointment of a guardian shall not be required.

(c)(3) A Prisoner for whom the department cannot identify appropriate post-release placement shall be referred to the Department of Public Health (“DPH”) for placement in an appropriate DPH facility pursuant to section 151 of chapter 127.

(c)(4) The Department shall identify prisoners who are permanently cognitively or physically incapacitated or terminally ill through the initial physical exam and periodic exams thereafter and shall report all identified cases on a quarterly basis to an appropriate prisoners’ rights legal organization, which will include the prisoner’s name, the prisoner’s next-of-kin or surrogate decision-maker, information about the prisoner’s sentence, and the relevant condition or description of the incapacitation. In addition to the periodic assessments by medical personnel at the prison, the prisoner, or the prisoner’s family or attorney may request at any time that the prisoner’s primary care physician in the prison assess whether the prisoner is permanently incapacitated or terminally ill.”

SECTION 6. Said section 119A of Chapter 127, is hereby amended in subsection (d)(1), by inserting, in line 65, after the word “society” the following:-

“Such assessment shall be supported, if requested by the petitioner, by 72-hours of routine video surveillance of the prisoner from the prison, demonstrating the prisoner’s level of incapacity.”

SECTION 7. Said section 119A of Chapter 127, is hereby amended by inserting, after subsection (D)(1), the following new subsections:-

“(d)(2) The sheriff shall submit written petitions on behalf of permanently cognitively incapacitated prisoners eligible for medical parole. The Sheriff must contact the prisoner’s next of kin, surrogate decision-maker, attorney or Prisoners’ Legal Services, and notify them of the opportunity to file a petition in lieu of the Sheriff or to submit a written statement. The Sheriff’s obligation to submit written petitions on behalf of cognitively incapacitated prisoners does not preclude other appropriate parties from filing written petitions on behalf of incarcerated persons with cognitive incapacitation. Such parties shall have access to all records necessary to file the petition and the appointment of a guardian shall not be required.

(d)(3) A prisoner for whom the sheriff cannot identify appropriate post-release placement shall be referred to the Department of Public Health (“DPH”) for placement in an appropriate DPH facility pursuant to section 151 of chapter 127.

(d)(4) The sheriff shall identify prisoners who are permanently cognitively or physically incapacitated or terminally ill through the initial physical exam and periodic exams thereafter and shall report all identified cases on a quarterly basis to an appropriate prisoners’ rights legal organization, which will include the prisoner’s name, the prisoner’s next-of-kin or surrogate decision-maker, information about the prisoner’s sentence, and the relevant condition or description of the incapacitation. In addition to the periodic assessments by medical personnel at the prison, the prisoner, or the prisoner’s family or attorney may request at any time that the prisoner’s primary care physician in the prison assess whether the prisoner is permanently incapacitated or terminally ill.”

SECTION 8. Said section 119A of Chapter 127, is hereby amended in subsection (e), by inserting, in line 84, after the word “expired” the following:-

“The assessment of terminal illness or permanent incapacitation by a medical provider shall be separate from the public safety risk assessment. Any denial of someone determined by the provider to meet the definition of terminally ill or permanently incapacitated shall discuss the threat to the welfare of society in the context of the petitioner’s current medical conditions.”

SECTION 9. Said section 119A of Chapter 127, is hereby amended by striking out subsection (f) in its entirety and replacing it with the following new subsection:

“(f) For all purposes, including revocation, a prisoner granted release under this section shall be under the jurisdiction, supervision and control of the parole board, as if the prisoner had been paroled pursuant to section 130 of chapter 127. The parole board may revise, alter or amend the terms and conditions of a medical parole at any time. Upon discovery that the parolee’s medical condition has improved to the extent that the parolee may no longer be eligible for medical parole under this section, the commissioner shall hold a hearing to determine whether the medical parolee remains qualified for medical parole.  The department must produce evidence, including a current medical assessment, to demonstrate that the parolee is no longer eligible for medical parole. If a parole officer receives credible information that a medical parolee has failed to comply with a condition of release pursuant to subsection (e), the Parole Board may move to revoke medical parole pursuant to 120 CMR 303.00 et seq.,(“Revocation of Parole”). If medical parole is revoked, the prisoner shall resume serving the balance of the sentence with credit given only for the duration of the prisoner's medical parole that was served in compliance with all conditions of their medical parole pursuant to subsection (e). Revocation of a prisoner's medical parole due to a change in the prisoner's medical condition shall not preclude a prisoner's eligibility for medical parole in the future or for another form of release permitted by law.”

SECTION 10. Said section 119A of Chapter 127, is hereby amended in subsection (g), by inserting, in line 117, after the figure “249” the following:-

“Petitions for certiorari shall be handled by the judiciary with due haste considering the urgent nature of medical parole.”