Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H2319 Compare Versions

Only one version of the bill is available at this time.

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1	1	1 of 1
2	2	HOUSE DOCKET, NO. 3779 FILED ON: 1/20/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 2319
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Mindy Domb
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act to ensure access to medical parole.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:Mindy Domb3rd Hampshire1/20/2023Patricia D. JehlenSecond Middlesex1/20/2023Lindsay N. Sabadosa1st Hampshire1/20/2023Jon Santiago9th Suffolk2/6/2023Joanne M. ComerfordHampshire, Franklin and Worcester2/9/2023Christine P. Barber34th Middlesex2/14/2023Rebecca L. RauschNorfolk, Worcester and Middlesex2/23/2023Bud L. Williams11th Hampden2/23/2023Samantha Montaño15th Suffolk2/25/2023Michelle L. Ciccolo15th Middlesex3/2/2023 1 of 10
16	16	HOUSE DOCKET, NO. 3779 FILED ON: 1/20/2023
17	17	HOUSE . . . . . . . . . . . . . . . No. 2319
18	18	By Representative Domb of Amherst, a petition (accompanied by bill, House, No. 2319) of
19	19	Mindy Domb and others relative to access to medical parole. Public Safety and Homeland
20	20	Security.
21	21	The Commonwealth of Massachusetts
22	22	_______________
23	23	In the One Hundred and Ninety-Third General Court
24	24	(2023-2024)
25	25	_______________
26	26	An Act to ensure access to medical parole.
27	27	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
28	28	of the same, as follows:
29	29	1 SECTION 1. Section 119A of Chapter 127 of the General Laws, as so appearing, is
30	30	2hereby amended by striking out the definitions of “Permanent incapacitation” and “Terminal
31	31	3illness” in subsection (a) and replacing with the following:
32	32	4 ''Permanent incapacitation'', a medical determination of a physical or cognitive
33	33	5incapacitation that appears irreversible, as determined by a licensed physician.
34	34	6 ''Terminal illness'', a medical determination of a condition that appears incurable, as
35	35	7determined by a licensed physician that will likely cause the death of the prisoner in not more
36	36	8than 18 months.
37	37	9 SECTION 2. Section 119A is further amended by adding the following definition after
38	38	10“Secretary”: 2 of 10
39	39	11 “Surrogate decision-maker”, a person chosen by an incarcerated person to advocate on
40	40	12their behalf. Such a surrogate may include next-of-kin, close family member, attorney, health
41	41	13care proxy, or an individual with power of attorney for the incarcerated person.
42	42	14 SECTION 3. Section 119A is further amended by striking subsection (c) and inserting the
43	43	15following subsections:
44	44	16 (c)(1) The superintendent of a correctional facility shall consider a prisoner for medical
45	45	17parole upon a written petition by the prisoner, the prisoner's attorney, the prisoner's next of kin, a
46	46	18medical provider of the correctional facility or a member of the department's staff. The
47	47	19superintendent shall review the petition and develop a recommendation as to the release of the
48	48	20prisoner. Whether or not the superintendent recommends in favor of medical parole, the
49	49	21superintendent shall, not more than 21 days after the Department’s receipt of the petition,
50	50	22transmit the petition and the recommendation to the commissioner. The superintendent shall
51	51	23transmit with the recommendation: (i) a proposed medical parole plan; (ii) a written diagnosis by
52	52	24a physician licensed to practice medicine under section 2 of chapter 112; and (iii) an assessment
53	53	25of the current risk for violence that the prisoner poses to society. The risk assessment shall be
54	54	26based on consideration of the prisoner’s current cognitive and physical ability to violently
55	55	27recidivate, considering the probability that violence will actually occur, in light of the person’s
56	56	28documented current medical condition. Where the person's disability-related behaviors contribute
57	57	29to current risk, the Department must also consider whether reasonable accommodations such as
58	58	30individualized treatment and programming in a community setting could mitigate risk. Such
59	59	31assessment shall be supported, if requested by the petitioner, by routine video surveillance of the
60	60	32prisoner from the prison, demonstrating the prisoner’s level of incapacity. 3 of 10
61	61	33 (c)(2) The Department shall submit written petitions on behalf of permanently
62	62	34cognitively incapacitated prisoners. The Department must first contact the prisoner’s next of kin,
63	63	35surrogate decision-maker, attorney or Prisoners’ Legal Services, and notify them of the
64	64	36opportunity to file a petition in lieu of the Department. The Department’s obligation to submit
65	65	37written petitions on behalf of cognitively incapacitated prisoners does not preclude other
66	66	38appropriate parties from filing petitions on behalf of incarcerated persons with cognitive
67	67	39incapacitation. The Department shall accept release of information forms signed by the prisoner
68	68	40if no guardian has already been appointed.
69	69	41 (c)(3) The Department shall identify prisoners who are cognitively incapacitated through
70	70	42at least annual administration of a standardized cognitive assessment tool to all prisoners aged 55
71	71	43and older. The Department shall identify all prisoners screening positive for cognitive
72	72	44impairment or who are terminally ill or physically incapacitated in a quarterly report to an
73	73	45appropriate prisoners’ rights legal organization, which will include the prisoner’s name, the
74	74	46prisoner’s next-of-kin or surrogate decision-maker, information about the prisoner’s sentence,
75	75	47and the relevant condition or description of the incapacitation. In addition to the regular
76	76	48assessments by medical personnel at the prison, the prisoner, or the prisoner’s family or attorney
77	77	49may request at any time that the prisoner’s primary care physician in the prison assess cognitive
78	78	50capacity.
79	79	51 (c)(4) Upon the commissioner’s receipt of the petition and recommendation pursuant to
80	80	52paragraph (1), the commissioner shall notify, in writing, the district attorney for the jurisdiction
81	81	53where the offense resulting in the prisoner being committed to the correctional facility occurred,
82	82	54the prisoner, the person who petitioned for medical parole, if not the prisoner and, if applicable
83	83	55under chapter 258B, the victim or the victim's family that the prisoner is being considered for 4 of 10
84	84	56medical parole. The parties who receive the notice shall have an opportunity to provide written
85	85	57statements; provided, however, that if the prisoner was convicted and is serving a sentence under
86	86	58section 1 of chapter 265, the district attorney or victim's family may request a hearing.
87	87	59 Where the prisoner meets the medical criteria for medical parole, the Department must
88	88	60submit a medical parole plan meeting the prisoner’s needs to the Parole Board no later than 35
89	89	61days after the Department’s receipt of the petition. Where a parole plan to a private home
90	90	62appropriate to the person’s care is available, that home shall be the proposed plan unless the
91	91	63Department produces documentation of specific reasons the home placement would cause a risk
92	92	64to public safety.
93	93	65 SECTION 4. Section 119A is further amended by striking subsection (d) and replacing
94	94	66with the following subsections:
95	95	67 (d)(1) A sheriff shall consider a prisoner for medical parole upon a written petition filed
96	96	68by the prisoner, the prisoner's attorney, the prisoner's next of kin, a medical provider of the house
97	97	69of correction or jail or a member of the sheriff's staff. The sheriff shall review the request and
98	98	70develop a recommendation as to the release of the prisoner. Whether or not the sheriff
99	99	71recommends in favor of medical parole, the sheriff shall, not more than 21 days after the
100	100	72Department’s receipt of the petition, transmit the petition and the recommendation to the
101	101	73commissioner. The sheriff shall transmit with the petition: (i) a proposed medical parole plan; (ii)
102	102	74a written diagnosis by a physician licensed to practice medicine under section 2 of chapter 112;
103	103	75and (iii) an assessment of the current risk for violence that the prisoner poses to society. The risk
104	104	76assessment shall be based on consideration of the prisoner’s current cognitive and physical
105	105	77ability to violently recidivate, and the probability that violence will actually occur, in light of the 5 of 10
106	106	78person’s documented current medical condition. When the person's disability-related behaviors
107	107	79contribute to current risk, the Department must also consider whether reasonable
108	108	80accommodations such as individualized treatment and programming in a community setting
109	109	81could mitigate risk. Such assessment shall be supported, if requested by the petitioner, by routine
110	110	82video surveillance of the prisoner from the jail, demonstrating the prisoner’s level of incapacity.
111	111	83 (d)(2) The sheriff shall submit written petitions on behalf of permanently cognitively
112	112	84incapacitated prisoners. The sheriff must contact the prisoner’s next of kin, surrogate decision-
113	113	85maker, attorney or Prisoners’ Legal Services, and notify them of the opportunity to file a petition
114	114	86in lieu of the sheriff. The Sheriff’s obligation to submit written petitions on behalf of cognitively
115	115	87incapacitated prisoners does not preclude other appropriate parties from filing written petitions
116	116	88on behalf of incarcerated persons with cognitive incapacitation. The sheriff shall accept release
117	117	89of information forms signed by the prisoner if no guardian has already been appointed.
118	118	90 (d)(3) The sheriff shall identify prisoners who are cognitively incapacitated through at
119	119	91least annual administration of a standardized cognitive assessment tool to all prisoners aged 55
120	120	92and older. The sheriff shall identify all prisoners screening positive for cognitive impairment or
121	121	93who are terminally ill or physically incapacitated in a quarterly report to an appropriate
122	122	94prisoners’ rights legal organization, which will include the prisoner’s name, the prisoner’s next-
123	123	95of-kin or surrogate decision-maker, information about the prisoner’s sentence, and the relevant
124	124	96condition or description of the incapacitation. In addition to the regular assessments by medical
125	125	97personnel at the prison, the prisoner, or the prisoner’s family or attorney may request at any time
126	126	98that the prisoner’s primary care physician in the prison assess cognitive capacity. 6 of 10
127	127	99 (d)(4) Upon the commissioner's receipt of the petition and recommendation pursuant to
128	128	100paragraph (1), the commissioner shall notify, in writing, the district attorney for the jurisdiction
129	129	101where the offense resulting in the prisoner being committed to the correctional facility occurred,
130	130	102the prisoner, the person who petitioned for medical parole, if not the prisoner and, if applicable
131	131	103under chapter 258B, the victim or the victim's family that the prisoner is being considered for
132	132	104medical parole. The parties who receive the notice shall have an opportunity to submit written
133	133	105statements.
134	134	106 Where the prisoner meets the medical criteria for medical parole, the Department shall
135	135	107submit a medical parole plan meeting the prisoner’s needs to the Parole Board no later than 35
136	136	108days after the sheriff’s receipt of the petition. Where a medical parole plan to a private home
137	137	109appropriate to the individual’s care is available, that home shall be the proposed plan unless the
138	138	110Department produces documentation of specific reasons the home placement would cause a risk
139	139	111to public safety.
140	140	112 SECTION 5. Section 119A is further amended by striking subsection (e) and replacing
141	141	113with the following:
142	142	114 (e) The commissioner shall issue a written decision not later than 45 days after the
143	143	115Department’s receipt of a petition, which shall be accompanied by a statement of reasons for the
144	144	116commissioner's decision. The Department shall also establish a policy implementing a further
145	145	117expedited process for decision and release of a person on medical parole whose death by
146	146	118terminal illness is found to be likely in less than 6 months. Medical parole shall be granted to a
147	147	119terminally ill or permanently incapacitated prisoner unless the Commissioner determines by clear
148	148	120and convincing evidence that, if the prisoner is released with appropriate conditions, community 7 of 10
149	149	121supervision, and reasonable accommodations, the prisoner will not live and remain at liberty
150	150	122without violently recidivating. The assessment of terminal illness or permanent incapacitation by
151	151	123a medical provider shall be separate from the public safety risk assessment. Any denial of
152	152	124medical parole shall explain how the petitioner’s release would be incompatible with the welfare
153	153	125of society given the petitioner’s current medical condition. No petition shall be denied on
154	154	126medical grounds without a current, in-person evaluation of the prisoner by the licensed physician
155	155	127opining that the person is not medically eligible. Petitioners shall have a right to funds for
156	156	128experts pursuant to chapter 261. The parole board shall impose terms and conditions for medical
157	157	129parole that shall apply through the date upon which the prisoner's sentence would have expired
158	158	130and which shall be no more restrictive than the individual’s current medical condition
159	159	131necessitates.
160	160	132 All decisions to grant or deny medical parole, and the creation of a medical parole plan
161	161	133shall be made without bias pertaining to a person’s race, ethnicity, disability, religion, sexual
162	162	134orientation, or gender identity.
163	163	135 Release after a grant of medical parole shall occur within 7 days of the grant, absent
164	164	136documented extraordinary circumstances preventing such timely release. A prisoner for whom
165	165	137the Department cannot identify appropriate post-release placement shall be referred to the
166	166	138Department of Public Health (“DPH”) for placement in an appropriate DPH facility pursuant to
167	167	139section 151 of chapter 127. Not less than 24 hours before the date of a prisoner's release on
168	168	140medical parole, the commissioner shall notify, in writing, the district attorney for the jurisdiction
169	169	141where the offense resulting in the prisoner being committed to the correctional facility occurred,
170	170	142the department of state police, the police department in the city or town in which the prisoner 8 of 10
171	171	143shall reside and, if applicable under chapter 258B, the victim or the victim's family of the
172	172	144prisoner's release and the terms and conditions of the release.
173	173	145 SECTION 6. Section 119A is further amended by striking subsection (f) and replacing
174	174	146with the following:
175	175	147 (f) For all purposes, including revocation, a prisoner granted release under this section
176	176	148shall be under the jurisdiction, supervision and control of the parole board, as if the prisoner had
177	177	149been paroled pursuant to section 130 of chapter 127. The parole board may revise, alter or amend
178	178	150the terms and conditions of a medical parole at any time.
179	179	151 If a parole officer receives credible information that the individual’s terminal illness or
180	180	152permanent incapacitation has improved to the extent that the individual would no longer be
181	181	153eligible for medical parole under this section, the board shall obtain a medical assessment by a
182	182	154licensed physician of the prisoner’s current medical condition. If the medical assessment
183	183	155concludes that the individual no longer qualifies for medical parole, the parole officer shall bring
184	184	156the individual on medical parole before the board for a parole revocation hearing. The individual
185	185	157shall remain at liberty during the pendency of the revocation proceedings, barring a substantial
186	186	158and immediate risk to public safety. If the board establishes at the revocation hearing that the
187	187	159terminal illness or permanent incapacitation has improved to the extent that the individual is no
188	188	160longer eligible for medical parole pursuant to this section, the board shall order the return of the
189	189	161individual to incarceration, or, subject to appropriate terms and conditions set by the board, order
190	190	162release to parole supervision under another form of parole permitted by law.
191	191	163 If a parole officer receives credible information that an individual on medical parole has
192	192	164failed to comply with a condition of medical parole, the parole officer may initiate parole 9 of 10
193	193	165revocation proceedings. If the board established at the revocation hearing that the individual has
194	194	166violated a condition of medical parole, it may revoke parole and order return of the individual to
195	195	167incarceration, or order that the individual be reparoled to the community on medical parole
196	196	168subject to appropriate terms and conditions set by the board. In determining whether to order the
197	197	169individual’s return to custody, the board shall consider the medical hardship of incarceration and
198	198	170whether provision of reasonable accommodations would enable the individual to comply with
199	199	171the conditions of medical parole.
200	200	172 If the board orders revocation and reincarceration pursuant to this subsection, the prisoner
201	201	173shall return to custody in accordance with the terms of their original sentence with credit given
202	202	174only for the duration of the medical parole that was served in compliance with all conditions of
203	203	175their medical parole pursuant to subsection (e). Revocation of a prisoner’s medical parole for any
204	204	176reason shall not preclude a prisoner’s eligibility for medical parole in the future or for another
205	205	177form of release permitted by law.
206	206	178 SECTION 7. Section 119A is further amended by striking subsection (g) and replacing
207	207	179with the following:
208	208	180 (g) A prisoner, sheriff or superintendent aggrieved by a decision denying or granting
209	209	181medical parole made under this section may petition for relief pursuant to section 4 of chapter
210	210	182249.
211	211	183 A reviewing court may affirm or reverse the commissioner's decision and order grant or
212	212	184denial of the prisoner’s release. Petitions for certiorari shall be handled by the judiciary with due
213	213	185haste considering the urgent nature of medical parole. A decision by the court affirming or
214	214	186reversing the commissioner's grant or denial of medical parole shall not affect a prisoner's 10 of 10
215	215	187eligibility for any other form of release permitted by law. A decision by the court pursuant to this
216	216	188subsection shall not preclude a prisoner's eligibility for medical parole in the future.
217	217	189 SECTION 8. Section 119A is further amended by striking subsection (i) and replacing
218	218	190with the following:
219	219	191 (i) The commissioner and the secretary shall file an annual report not later than March 1
220	220	192with the clerks of the senate and the house of representatives, the senate and house committees
221	221	193on ways and means and the joint committee on the judiciary detailing, for the prior year: (i) the
222	222	194number of prisoners in the custody of the department or of the sheriffs who applied for medical
223	223	195parole under this section and the race, ethnicity, and age of each applicant at the time of the
224	224	196petition; (ii) the number of prisoners who have been granted medical parole and the race and
225	225	197ethnicity, age of each prisoner at the time of the petition; (iii) the nature of the illness of the
226	226	198applicants for medical parole; (iv) the counties to which the prisoners have been released; (v) the
227	227	199number of prisoners who have been denied medical parole, the reason for the denial and the race,
228	228	200ethnicity and age of each prisoner at the time of the petition; (vi) the number of prisoners who
229	229	201have petitioned for medical parole more than once; (vii) the number of prisoners released who
230	230	202have been returned to the custody of the department or the sheriff and the reason for each
231	231	203prisoner's return; and (viii) the number of petitions for relief sought pursuant to subsection (g).
232	232	204Nothing in this report shall include personally identifiable information of the prisoners.