Text of MA H 2319 (2024)

1 of 1 HOUSE DOCKET, NO. 3779 FILED ON: 1/20/2023 HOUSE . . . . . . . . . . . . . . . No. 2319 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 ensure access to medical parole. _______________ PETITION OF: NAME: DISTRICT/ADDRESS: DATE ADDED: Mindy Domb 3rd Hampshire 1/20/2023 Patricia D. Jehlen Second Middlesex 1/20/2023 Lindsay N. Sabadosa 1st Hampshire 1/20/2023 Jon Santiago 9th Suffolk 2/6/2023 Joanne M. Comerford Hampshire, Franklin and Worcester 2/9/2023 Christine P. Barber 34th Middlesex 2/14/2023 Rebecca L. Rausch Norfolk, Worcester and Middlesex 2/23/2023 Bud L. Williams 11th Hampden 2/23/2023 Samantha Montaño 15th Suffolk 2/25/2023 Michelle L. Ciccolo 15th Middlesex 3/2/2023 1 of 10 HOUSE DOCKET, NO. 3779 FILED ON: 1/20/2023 HOUSE . . . . . . . . . . . . . . . No. 2319 By Representative Domb of Amherst, a petition (accompanied by bill, House, No. 2319) of Mindy Domb and others relative to access to medical parole. Public Safety and Homeland Security. The Commonwealth of Massachusetts _______________ In the One Hundred and Ninety-Third General Court (2023-2024) _______________ An Act to ensure access 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: 1 SECTION 1. Section 119A of Chapter 127 of the General Laws, as so appearing, is 2 hereby amended by striking out the definitions of “Permanent incapacitation” and “Terminal 3 illness” in subsection (a) and replacing with the following: 4 ''Permanent incapacitation'', a medical determination of a physical or cognitive 5 incapacitation that appears irreversible, as determined by a licensed physician. 6 ''Terminal illness'', a medical determination of a condition that appears incurable, as 7 determined by a licensed physician that will likely cause the death of the prisoner in not more 8 than 18 months. 9 SECTION 2. Section 119A is further amended by adding the following definition after 10 “Secretary”: 2 of 10 11 “Surrogate decision-maker”, a person chosen by an incarcerated person to advocate on 12 their behalf. Such a surrogate may include next-of-kin, close family member, attorney, health 13 care proxy, or an individual with power of attorney for the incarcerated person. 14 SECTION 3. Section 119A is further amended by striking subsection (c) and inserting the 15 following subsections: 16 (c)(1) The superintendent of a correctional facility shall consider a prisoner for medical 17 parole upon a written petition by the prisoner, the prisoner's attorney, the prisoner's next of kin, a 18 medical provider of the correctional facility or a member of the department's staff. The 19 superintendent shall review the petition and develop a recommendation as to the release of the 20 prisoner. Whether or not the superintendent recommends in favor of medical parole, the 21 superintendent shall, not more than 21 days after the Department’s receipt of the petition, 22 transmit the petition and the recommendation to the commissioner. The superintendent shall 23 transmit with the recommendation: (i) a proposed medical parole plan; (ii) a written diagnosis by 24 a physician licensed to practice medicine under section 2 of chapter 112; and (iii) an assessment 25 of the current risk for violence that the prisoner poses to society. The risk assessment shall be 26 based on consideration of the prisoner’s current cognitive and physical ability to violently 27 recidivate, considering the probability that violence will actually occur, in light of the person’s 28 documented current medical condition. Where the person's disability-related behaviors contribute 29 to current risk, the Department must also consider whether reasonable accommodations such as 30 individualized treatment and programming in a community setting could mitigate risk. Such 31 assessment shall be supported, if requested by the petitioner, by routine video surveillance of the 32 prisoner from the prison, demonstrating the prisoner’s level of incapacity. 3 of 10 33 (c)(2) The Department shall submit written petitions on behalf of permanently 34 cognitively incapacitated prisoners. The Department must first contact the prisoner’s next of kin, 35 surrogate decision-maker, attorney or Prisoners’ Legal Services, and notify them of the 36 opportunity to file a petition in lieu of the Department. The Department’s obligation to submit 37 written petitions on behalf of cognitively incapacitated prisoners does not preclude other 38 appropriate parties from filing petitions on behalf of incarcerated persons with cognitive 39 incapacitation. The Department shall accept release of information forms signed by the prisoner 40 if no guardian has already been appointed. 41 (c)(3) The Department shall identify prisoners who are cognitively incapacitated through 42 at least annual administration of a standardized cognitive assessment tool to all prisoners aged 55 43 and older. The Department shall identify all prisoners screening positive for cognitive 44 impairment or who are terminally ill or physically incapacitated in a quarterly report to an 45 appropriate prisoners’ rights legal organization, which will include the prisoner’s name, the 46 prisoner’s next-of-kin or surrogate decision-maker, information about the prisoner’s sentence, 47 and the relevant condition or description of the incapacitation. In addition to the regular 48 assessments by medical personnel at the prison, the prisoner, or the prisoner’s family or attorney 49 may request at any time that the prisoner’s primary care physician in the prison assess cognitive 50 capacity. 51 (c)(4) Upon the commissioner’s receipt of the petition and recommendation pursuant to 52 paragraph (1), the commissioner shall notify, in writing, the district attorney for the jurisdiction 53 where the offense resulting in the prisoner being committed to the correctional facility occurred, 54 the prisoner, the person who petitioned for medical parole, if not the prisoner and, if applicable 55 under chapter 258B, the victim or the victim's family that the prisoner is being considered for 4 of 10 56 medical parole. The parties who receive the notice shall have an opportunity to provide written 57 statements; provided, however, that if the prisoner was convicted and is serving a sentence under 58 section 1 of chapter 265, the district attorney or victim's family may request a hearing. 59 Where the prisoner meets the medical criteria for medical parole, the Department must 60 submit a medical parole plan meeting the prisoner’s needs to the Parole Board no later than 35 61 days after the Department’s receipt of the petition. Where a parole plan to a private home 62 appropriate to the person’s care is available, that home shall be the proposed plan unless the 63 Department produces documentation of specific reasons the home placement would cause a risk 64 to public safety. 65 SECTION 4. Section 119A is further amended by striking subsection (d) and replacing 66 with the following subsections: 67 (d)(1) A sheriff shall consider a prisoner for medical parole upon a written petition filed 68 by the prisoner, the prisoner's attorney, the prisoner's next of kin, a medical provider of the house 69 of correction or jail or a member of the sheriff's staff. The sheriff shall review the request and 70 develop a recommendation as to the release of the prisoner. Whether or not the sheriff 71 recommends in favor of medical parole, the sheriff shall, not more than 21 days after the 72 Department’s receipt of the petition, transmit the petition and the recommendation to the 73 commissioner. The sheriff shall transmit with the petition: (i) a proposed medical parole plan; (ii) 74 a written diagnosis by a physician licensed to practice medicine under section 2 of chapter 112; 75 and (iii) an assessment of the current risk for violence that the prisoner poses to society. The risk 76 assessment shall be based on consideration of the prisoner’s current cognitive and physical 77 ability to violently recidivate, and the probability that violence will actually occur, in light of the 5 of 10 78 person’s documented current medical condition. When the person's disability-related behaviors 79 contribute to current risk, the Department must also consider whether reasonable 80 accommodations such as individualized treatment and programming in a community setting 81 could mitigate risk. Such assessment shall be supported, if requested by the petitioner, by routine 82 video surveillance of the prisoner from the jail, demonstrating the prisoner’s level of incapacity. 83 (d)(2) The sheriff shall submit written petitions on behalf of permanently cognitively 84 incapacitated prisoners. The sheriff must contact the prisoner’s next of kin, surrogate decision- 85 maker, attorney or Prisoners’ Legal Services, and notify them of the opportunity to file a petition 86 in lieu of the sheriff. The Sheriff’s obligation to submit written petitions on behalf of cognitively 87 incapacitated prisoners does not preclude other appropriate parties from filing written petitions 88 on behalf of incarcerated persons with cognitive incapacitation. The sheriff shall accept release 89 of information forms signed by the prisoner if no guardian has already been appointed. 90 (d)(3) The sheriff shall identify prisoners who are cognitively incapacitated through at 91 least annual administration of a standardized cognitive assessment tool to all prisoners aged 55 92 and older. The sheriff shall identify all prisoners screening positive for cognitive impairment or 93 who are terminally ill or physically incapacitated in a quarterly report to an appropriate 94 prisoners’ rights legal organization, which will include the prisoner’s name, the prisoner’s next- 95 of-kin or surrogate decision-maker, information about the prisoner’s sentence, and the relevant 96 condition or description of the incapacitation. In addition to the regular assessments by medical 97 personnel at the prison, the prisoner, or the prisoner’s family or attorney may request at any time 98 that the prisoner’s primary care physician in the prison assess cognitive capacity. 6 of 10 99 (d)(4) Upon the commissioner's receipt of the petition and recommendation pursuant to 100 paragraph (1), the commissioner shall notify, in writing, the district attorney for the jurisdiction 101 where the offense resulting in the prisoner being committed to the correctional facility occurred, 102 the prisoner, the person who petitioned for medical parole, if not the prisoner and, if applicable 103 under chapter 258B, the victim or the victim's family that the prisoner is being considered for 104 medical parole. The parties who receive the notice shall have an opportunity to submit written 105 statements. 106 Where the prisoner meets the medical criteria for medical parole, the Department shall 107 submit a medical parole plan meeting the prisoner’s needs to the Parole Board no later than 35 108 days after the sheriff’s receipt of the petition. Where a medical parole plan to a private home 109 appropriate to the individual’s care is available, that home shall be the proposed plan unless the 110 Department produces documentation of specific reasons the home placement would cause a risk 111 to public safety. 112 SECTION 5. Section 119A is further amended by striking subsection (e) and replacing 113 with the following: 114 (e) The commissioner shall issue a written decision not later than 45 days after the 115 Department’s receipt of a petition, which shall be accompanied by a statement of reasons for the 116 commissioner's decision. The Department shall also establish a policy implementing a further 117 expedited process for decision and release of a person on medical parole whose death by 118 terminal illness is found to be likely in less than 6 months. Medical parole shall be granted to a 119 terminally ill or permanently incapacitated prisoner unless the Commissioner determines by clear 120 and convincing evidence that, if the prisoner is released with appropriate conditions, community 7 of 10 121 supervision, and reasonable accommodations, the prisoner will not live and remain at liberty 122 without violently recidivating. The assessment of terminal illness or permanent incapacitation by 123 a medical provider shall be separate from the public safety risk assessment. Any denial of 124 medical parole shall explain how the petitioner’s release would be incompatible with the welfare 125 of society given the petitioner’s current medical condition. No petition shall be denied on 126 medical grounds without a current, in-person evaluation of the prisoner by the licensed physician 127 opining that the person is not medically eligible. Petitioners shall have a right to funds for 128 experts pursuant to chapter 261. The parole board shall impose terms and conditions for medical 129 parole that shall apply through the date upon which the prisoner's sentence would have expired 130 and which shall be no more restrictive than the individual’s current medical condition 131 necessitates. 132 All decisions to grant or deny medical parole, and the creation of a medical parole plan 133 shall be made without bias pertaining to a person’s race, ethnicity, disability, religion, sexual 134 orientation, or gender identity. 135 Release after a grant of medical parole shall occur within 7 days of the grant, absent 136 documented extraordinary circumstances preventing such timely release. A prisoner for whom 137 the Department cannot identify appropriate post-release placement shall be referred to the 138 Department of Public Health (“DPH”) for placement in an appropriate DPH facility pursuant to 139 section 151 of chapter 127. Not less than 24 hours before the date of a prisoner's release on 140 medical parole, the commissioner shall notify, in writing, the district attorney for the jurisdiction 141 where the offense resulting in the prisoner being committed to the correctional facility occurred, 142 the department of state police, the police department in the city or town in which the prisoner 8 of 10 143 shall reside and, if applicable under chapter 258B, the victim or the victim's family of the 144 prisoner's release and the terms and conditions of the release. 145 SECTION 6. Section 119A is further amended by striking subsection (f) and replacing 146 with the following: 147 (f) For all purposes, including revocation, a prisoner granted release under this section 148 shall be under the jurisdiction, supervision and control of the parole board, as if the prisoner had 149 been paroled pursuant to section 130 of chapter 127. The parole board may revise, alter or amend 150 the terms and conditions of a medical parole at any time. 151 If a parole officer receives credible information that the individual’s terminal illness or 152 permanent incapacitation has improved to the extent that the individual would no longer be 153 eligible for medical parole under this section, the board shall obtain a medical assessment by a 154 licensed physician of the prisoner’s current medical condition. If the medical assessment 155 concludes that the individual no longer qualifies for medical parole, the parole officer shall bring 156 the individual on medical parole before the board for a parole revocation hearing. The individual 157 shall remain at liberty during the pendency of the revocation proceedings, barring a substantial 158 and immediate risk to public safety. If the board establishes at the revocation hearing that the 159 terminal illness or permanent incapacitation has improved to the extent that the individual is no 160 longer eligible for medical parole pursuant to this section, the board shall order the return of the 161 individual to incarceration, or, subject to appropriate terms and conditions set by the board, order 162 release to parole supervision under another form of parole permitted by law. 163 If a parole officer receives credible information that an individual on medical parole has 164 failed to comply with a condition of medical parole, the parole officer may initiate parole 9 of 10 165 revocation proceedings. If the board established at the revocation hearing that the individual has 166 violated a condition of medical parole, it may revoke parole and order return of the individual to 167 incarceration, or order that the individual be reparoled to the community on medical parole 168 subject to appropriate terms and conditions set by the board. In determining whether to order the 169 individual’s return to custody, the board shall consider the medical hardship of incarceration and 170 whether provision of reasonable accommodations would enable the individual to comply with 171 the conditions of medical parole. 172 If the board orders revocation and reincarceration pursuant to this subsection, the prisoner 173 shall return to custody in accordance with the terms of their original sentence with credit given 174 only for the duration of the medical parole that was served in compliance with all conditions of 175 their medical parole pursuant to subsection (e). Revocation of a prisoner’s medical parole for any 176 reason shall not preclude a prisoner’s eligibility for medical parole in the future or for another 177 form of release permitted by law. 178 SECTION 7. Section 119A is further amended by striking subsection (g) and replacing 179 with the following: 180 (g) A prisoner, sheriff or superintendent aggrieved by a decision denying or granting 181 medical parole made under this section may petition for relief pursuant to section 4 of chapter 182 249. 183 A reviewing court may affirm or reverse the commissioner's decision and order grant or 184 denial of the prisoner’s release. Petitions for certiorari shall be handled by the judiciary with due 185 haste considering the urgent nature of medical parole. A decision by the court affirming or 186 reversing the commissioner's grant or denial of medical parole shall not affect a prisoner's 10 of 10 187 eligibility for any other form of release permitted by law. A decision by the court pursuant to this 188 subsection shall not preclude a prisoner's eligibility for medical parole in the future. 189 SECTION 8. Section 119A is further amended by striking subsection (i) and replacing 190 with the following: 191 (i) The commissioner and the secretary shall file an annual report not later than March 1 192 with the clerks of the senate and the house of representatives, the senate and house committees 193 on ways and means and the joint committee on the judiciary detailing, for the prior year: (i) the 194 number of prisoners in the custody of the department or of the sheriffs who applied for medical 195 parole under this section and the race, ethnicity, and age of each applicant at the time of the 196 petition; (ii) the number of prisoners who have been granted medical parole and the race and 197 ethnicity, age of each prisoner at the time of the petition; (iii) the nature of the illness of the 198 applicants for medical parole; (iv) the counties to which the prisoners have been released; (v) the 199 number of prisoners who have been denied medical parole, the reason for the denial and the race, 200 ethnicity and age of each prisoner at the time of the petition; (vi) the number of prisoners who 201 have petitioned for medical parole more than once; (vii) the number of prisoners released who 202 have been returned to the custody of the department or the sheriff and the reason for each 203 prisoner's return; and (viii) the number of petitions for relief sought pursuant to subsection (g). 204 Nothing in this report shall include personally identifiable information of the prisoners.