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