Redraft 698

Budget Amendment ID: FY2016-S3-698-R1

Redraft EPS 698

Medical Placement of Terminal and Incapacitated Inmates

Ms. Chang-Diaz moved that the proposed new text be amended by striking out section 46 and inserting in place thereof the following section:-

“SECTION 46. 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, unless the context clearly requires otherwise, have the following meanings:

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

“Prisoner”, a committed offender and any other person placed in custody in a correctional facility in accordance with the law.

“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 or, since the time of sentencing, has progressed to render the prisoner terminally ill, 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 other general or special law to the contrary, a prisoner may be eligible for conditional medical parole due to a terminal illness or permanent and total disability. A prisoner shall be eligible for conditional medical parole if the commissioner or secretary determines that the prisoner has been diagnosed with a permanent and total disability or terminal illness under the procedures described in subsections (c) and (d); provided, however, that no prisoner serving a sentence imposed upon a conviction under sections 1 and 2 of chapter 265, no prisoner considered a habitual criminal under subsection (b) of section 25 of chapter 279 and no prisoner serving a sentence imposed upon a conviction of a sex offense shall be eligible for release under this section.

(c) The superintendent of the correctional facility shall consider a prisoner for conditional medical parole upon a request for conditional medical parole filed by the prisoner, the prisoner’s attorney, the prisoner’s next of kin or a correction officer. The superintendent shall review the request for consideration and make a recommendation to the commissioner within 15 days after receipt of the request for conditional medical parole. If, upon an investigation of the request, the superintendent determines that the request should be approved, the superintendent shall recommend, in writing, to the commissioner that the prisoner be released. The commissioner shall file a petition with the parole board for extraordinary relief. The commissioner shall notify, in writing, the district attorney, the prisoner, the prisoner’s attorney, the prisoner’s next of kin or a correction officer 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 and 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, physical incapacity or chronic condition; and (B) a prognosis concerning the likelihood of recovery from the terminal illness, physical incapacity or chronic condition; provided, however, that the physician shall be employed by the department or shall be employed by a hospital or medical facility used by the department 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 superintendent denies the request for conditional medical parole, the superintendent shall provide to 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.

(d) A sheriff shall consider a prisoner for conditional medical parole upon a request for conditional medical parole filed by the prisoner, the prisoner’s attorney, the prisoner’s next of kin or a correction officer. The sheriff shall review the request for consideration and make a recommendation to the secretary within 15 days after receipt of the request for conditional medical parole. If, upon an investigation of the request, the sheriff determines that the request should be approved, the sheriff shall recommend, in writing, to the secretary that the prisoner be released. The secretary shall file a petition with the parole board for extraordinary relief. The secretary shall notify, in writing, the district attorney, the prisoner, the prisoner’s attorney, the prisoner’s next of kin 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 and 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 secretary shall file an affidavit with the petition confirming that the notice has been provided. The secretary 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:

(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 secretary shall provide to 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.

(e) The authority to grant a conditional medical parole shall reside solely within the discretion of the parole board. In making this determination, the board shall consider:

(i) the nature and severity of the prisoner’s crime;

(ii) the prisoner’s prior criminal record;

(iii) the prisoner’s disciplinary, behavioral and rehabilitative record during the term of incarceration;

(iv) the current age of the prisoner and the prisoner’s age at the time of the crime;

(v) the length of the prisoner’s sentence and the amount of time left to serve;

(vi) the recommendations of the district attorney and the victim or the victim’s representative;

(vii) the nature of the prisoner’s medical condition or terminal illness and the extent of care the prisoner will require as a result;

(viii) the danger, if any, the prisoner poses to the public if released;

(ix) appropriate release plans, including family or outside resources; and

(x) any other factors the board considers relevant.

The board shall make a determination of whether to grant conditional medical parole within 15 days after receiving a petition from the commissioner or secretary for release of a prisoner with a terminal illness and within 30 days after receiving a motion for release of a permanently and totally disabled prisoner.

A denial of conditional medical parole by the board shall not affect a prisoner’s eligibility for any other form of parole or release under applicable law.

Any decision made by the board pursuant to this section shall be final; provided, however, that the decision shall not preclude a prisoner’s eligibility for conditional medical parole in the future.

(f) A prisoner granted release under this section shall be under the jurisdiction, supervision and control of the board. The board shall impose terms and conditions for such release that shall apply through the date upon which the prisoner’s sentence would have expired. These conditions shall require, but need not be limited to requiring:

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

(ii) the released prisoner to 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 to be subject to supervision by the board; and

(iv) the released prisoner to comply with any conditions of release set by the board.

Not less than 24 hours before the date of a conditional medical parole, the board shall notify, in writing, the district attorney, the department of state police and the police department in the city or town in which the released prisoner shall reside and, if necessary under chapter 258B, the victim or the victim’s family, that the prisoner’s request for release has been granted by the board and the terms and conditions of release.

The board may revise, alter or amend the terms and conditions of a conditional medical parole at any time. The board shall promptly order a prisoner returned to the custody of the department or the county correctional facility to await a revocation hearing if the board receives credible information that a prisoner has failed to comply with a reasonable condition set upon the prisoner’s release or if, upon discovery that the terminal illness or permanent and total disability has improved to the extent that the prisoner would no longer be eligible for conditional medical parole under this section. If the board subsequently revokes a prisoner’s conditional medical parole, 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 shall not preclude a prisoner’s eligibility for another form of parole or release under applicable law; provided, however, that such revocation may be used as a factor in determining eligibility for that other form of parole or release. 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 parole or release under applicable law.

(g) The commissioner, the secretary and the chairperson of the parole board shall promulgate rules and regulations necessary to implement this section.

(h) The commissioner and the secretary shall make reasonable efforts to educate, inform and train department employees about this section and shall furnish those employees with appropriate resources and services to implement this section.

(i) The commissioner and the secretary shall jointly file an annual report not later than March 1 with the clerks of the house of representatives and the senate, the chairs of the house and senate 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 or condition and each prisoner in the custody of the department who is receiving treatment for a permanent or incapacitating disability, including the race and ethnicity of the prisoner, the offense under which the prisoner was sentenced, and a detailed description of the prisoner’s physical and mental condition, provided, however, that any identifying information shall be kept confidential; (ii) the number of prisoners in the custody of the department or the sheriffs who applied for conditional medical parole under subsections (c) and (d) 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; (iv) the nature of the illness of the applicants; (v) the counties where the prisoners have been released to; (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; and (ix) the number of prisoners released who have been returned to the custody of the department and the reasons for those returns.”