SENATE . . . . . . . . . . . . . . No. 2304
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The Commonwealth of Massachusetts
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In the One Hundred and Eighty-Ninth General Court
(2015-2016)
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SENATE, Tuesday, May 31, 2016
The committee on Health Care Financing, to whom was referred the Senate Bill relative to medical placement of terminal and incapacitated inmates (Senate, No. 843),-- reports, recommending that the same ought to pass with an amendment substituting a new draft with the same title (Senate, No. 2304).
For the committee,
James T. Welch
SENATE . . . . . . . . . . . . . . No. 2304
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The Commonwealth of Massachusetts
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In the One Hundred and Eighty-Ninth General Court
(2015-2016)
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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, unless the context clearly requires otherwise, have the following meanings:
“Commissioner”, the commissioner of the department of correction.
“Conditional medical probation 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 probation 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 probation 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 probation.
“Department”, the department of correction.
“Permanent incapacitation”, 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.
“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 probation due to a terminal illness or permanent and total incapacitation under the procedures described in subsections (c) and (d).
(c) The superintendent of the correctional facility shall consider a prisoner for conditional medical probation upon a request for conditional medical probation filed by the prisoner, the prisoner’s attorney, the prisoner’s next of kin or a member of the correctional staff. The superintendent shall review the request for consideration and make a recommendation. If the superintendent recommends conditional medical placement, the commissioner shall petition a court of original jurisdiction for an order permitting the prisoner to be released. 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 probation 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 probation 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 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 probation, 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 probation upon a request for conditional medical probation 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 15 days of receipt. If, upon an investigation of the request, the sheriff determines that the request should be approved, the sheriff shall petition a court of original jurisdiction for an order permitting the prisoner to be released. The sheriff 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 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 probation 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 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 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 probation shall reside solely within the discretion of the judge. The judge shall make a determination of whether to grant conditional medical probation within 15 days after receiving a petition from the commissioner or sheriff 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 probation by the judge shall not affect a prisoner’s eligibility for any other form of release under applicable law.
Any decision made by the judge pursuant to this section shall be final; provided, however, that the decision shall not preclude a prisoner’s eligibility for conditional medical probation in the future.
(f) A prisoner granted release under this section shall be under the jurisdiction, supervision and control of the judiciary. The judge 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 probation plan as approved by the judge;
(ii) the released prisoner to cooperate with and comply with the prescribed conditional medical probation 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 office of probation; and
(iv) the released prisoner to comply with any conditions of release set by the judge.
Not less than 24 hours before the date of a conditional medical probation, the office of the commissioner of probation 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 that the prisoner’s request for release has been granted and the terms and conditions of release.
The court may revise, alter or amend the terms and conditions of a conditional medical probation at any time. The probation officer shall promptly arrest a prisoner and bring the prisoner before a judge for a probation 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 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 probation under this section. If the judge subsequently determines that the prisoner violated a condition of the prisoner’s conditional medical probation, the prisoner shall resume serving the balance of the sentence with credit given only for the duration of the prisoner’s conditional medical probation served in compliance with all reasonable conditions in this subsection. Revocation of a prisoner’s conditional medical probation due to a change in the prisoner’s medical condition shall not preclude a prisoner’s eligibility for conditional medical probation in the future or for another form of release under applicable law.
(g) The commissioner and the secretary shall promulgate rules and regulations necessary to implement this section within 6 months of the enactment of this legislation.
(h) The commissioner, sheriffs, and the secretary shall educate, inform and train employees about this section and shall furnish those employees with appropriate resources and services to implement this section.
(i) The commissioner, the secretary and the office of the commissioner of probation shall together 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 or conditional medical probation 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 or conditional medical probation 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 or conditional medical probation plan; (vii) the categories of reasons for denial for prisoners who have been denied conditional medical parole or conditional medical parole; (viii) the number of prisoners petitioning for conditional medical parole or conditional medical probation 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.