Chapter 176

2011 -- S 0638 SUBSTITUTE A

Enacted 06/30/11

A N A C T

RELATING TO CRIMINALS - CORRECTIONAL INSTITUTIONS - MEDICAL PAROLE

Introduced By: Senator Michael J. McCaffrey

Date Introduced: March 10, 2011

     It is enacted by the General Assembly as follows:

SECTION 1. Sections 13-8.1-2, 13-8.1-3 and 13-8.1-4 of the General Laws in Chapter

13-8.1 entitled "Medical Parole" are hereby amended to read as follows:

13-8.1-2. Purpose. -- Medical parole is made available for humanitarian reasons and to

alleviate exorbitant medical expenses associated with inmates whose chronic and incurable illness

render their incarceration non-punitive and non-rehabilitative. Notwithstanding other statutory or

administrative provisions to the contrary, all prisoners except those serving life without parole

shall at any time after they begin serving their sentences be eligible for medical parole

consideration, regardless of the crime committed or the sentence imposed.

13-8.1-3. Definitions. -- (a) "Permanently physically incapacitated" means suffering from

a condition caused by injury, disease, or illness which, to a reasonable degree of medical

certainty, permanently and irreversibly physically incapacitates the individual to the extent that

no significant physical activity is possible, and the individual is confined to bed or a wheelchair.

      (b) "Terminally ill" means suffering from a condition caused by injury (except self-

inflicted injury), disease, or illness, which to a reasonable degree of medical certainty will result

in death within six (6) months.

(c) "Severely ill" means suffering from a significant and permanent or chronic physical

and/or mental condition that: (1) Requires extensive medical and/or psychiatric treatment with

little to no possibility of recovery; and (2) Precludes significant rehabilitation from further

incarceration.

13-8.1-4. Procedure. -- (a) The parole board is authorized to grant release of a prisoner,

except a prisoner serving life without parole, at any time, who is determined to be terminally ill,

severely ill or permanently physically incapacitated within the meaning of section 13-8.1-3.

Inmates who are severely ill will only be considered for such release when their treatment causes

the state to incur exorbitant expenses as a result of continued and frequent medical treatment

during incarceration, as determined by the office of financial resources of the department of

corrections.

      (b) In order to apply for this relief, the prisoner, with an attending physician's written

approval, or an attending physician, on behalf of the prisoner, shall file an application with the

director of the department of corrections. Within seventy-two (72) hours after the filing of any

application, the director shall refer the application to the health service unit of the department of

corrections for a medical report and a medical discharge plan to be completed within five (5) ten

(10) days. Upon receipt of the medical discharge plan the director of the department of

corrections shall immediately transfer the medical discharge plan together with the application to

the parole board for its consideration and decision.

      (c) The report shall contain, at a minimum, the following information:

      (1) Diagnosis of the prisoner's medical conditions, including related medical history;

      (2) Detailed description of the conditions and treatments;

      (3) Prognosis, including life expectancy, likelihood of recovery, likelihood of

improvement, mobility, and rate of debilitation;

      (4) Degree of incapacity or disability, including an assessment of whether the prisoner is

ambulatory, capable of engaging in any substantial physical activity, and the extent of that

activity;

      (5) An opinion from the medical director as to whether the person is terminally ill, and if

so, the stage of the illness or whether the person is permanently physically incapacitated or

severely ill. If the medical director's opinion is that the person is not terminally ill, permanently,

physically incapacitated, or severely ill as defined in section 13-8.1-3, the petition for medical

parole shall not be forwarded to the parole board.

(6) In the case of a severely ill inmate, the report shall also contain a determination from

the office of financial resources that the inmate's illness causes the state to incur exorbitant

expenses as a result of continued and frequent medical treatment during incarceration.

      (d) When the director of corrections refers a prisoner to the parole board for medical

parole, the director shall provide to the parole board a medical discharge plan, which is

acceptable to the parole board.

      (e) The department of corrections and the parole board shall jointly develop standards for

the medical discharge plan that are appropriately adapted to the criminal justice setting. The

discharge plan should ensure at the minimum that:

      (1) An appropriate placement for the prisoner has been secured, including, but not

limited to, a hospital, nursing facility, hospice, or family home;

      (2) A referral has been made for the prisoner to secure a source for payment of the

prisoner prisoner's medical expenses has been secured;

      (3) A physician continues to examine the releasee and A parole officer has been

assigned to periodically obtain updates on the prisoner's medical condition to report back to the

board.

      (f) If the parole board finds from the credible medical evidence that the prisoner is

terminally ill, or permanently physically incapacitated, or severely ill, the board shall grant

release to the prisoner but only after the board also considers whether, in light of the prisoner's

medical condition, there is a reasonable probability that the prisoner, if released, will live and

remain at liberty without violating the law, and that the release is compatible with the welfare of

society and will not so depreciate the seriousness of the crime as to undermine respect for the law.

Notwithstanding any other provision of law, release may be granted at any time during the term

of a prisoner's sentence.

      (g) There shall be a presumption that the opinion of the physician and/or medical

director will be accepted. However, the applicant, the physician, the director, or the parole board

may request an independent medical evaluation within seven (7) days after the physician's and/or

medical director's report is presented. The evaluation shall be completed and a report, containing

the information required by subsection (b) of this section, filed with the director and the parole

board and a copy sent to the applicant within fourteen (14) days from the date of the request.

      (h) Within seven (7) days of receiving the application, the medical report and the

discharge plan, the parole board shall determine whether the application, on its face, demonstrates

that relief may be warranted. If the face of the application clearly demonstrates that relief is

unwarranted, the board may deny the application without a hearing or further proceedings, and

within seven (7) days shall notify the prisoner in writing of its decision to deny the application,

setting forth its factual findings and a brief statement of the reasons for denying release without a

hearing. Denial of release does not preclude the prisoner from reapplying for medical parole after

the expiration of sixty (60) days. A reapplication under this section must demonstrate a material

change in circumstances.

      (i) (1) Upon receipt of the application from the director of the department of corrections

the parole board shall, except as provided in subsection (h) of this section, set the case for a

hearing within fourteen (14) thirty (30) days;

      (2) Notice of the hearing shall be sent to the prosecutor and the victim(s), if any, of the

offense(s) for which the prisoner is incarcerated, and the prosecutor and the victim(s) shall have

the right to be heard at the hearing, or in writing, or both;

      (3) At the hearing, the prisoner shall be entitled to be represented by an attorney or by

the public defender if qualified or other representative.

      (j) Within seven (7) days of the hearing, the parole board shall issue a written decision

granting or denying medical parole and explaining the reasons for the decision. If the board

determines that medical parole is warranted, it shall impose conditions of release, which shall

include the following:

      (1) Periodic medical examinations;

      (2) Periodic reporting to a parole officer, and the reporting interval;

      (3) Any other terms or conditions that the board deems necessary.; and

(4) In the case of a prisoner who is medically paroled due to being severely ill, the parole

board shall require electronic monitoring as a condition of the medical parole, unless the health

care plan mandates placement in a medical facility that cannot accommodate the electronic

monitoring.

      (k) If after release the releasee's condition or circumstances change so that he or she

would not then be eligible for medical parole, the parole board may order him or her returned to

custody to await a hearing to determine whether his or her release should be revoked. A release

may also be revoked for violation of conditions otherwise applicable to parole.

      (l) An annual report shall be prepared by the director of corrections for the parole board

and the general assembly. The report shall include:

      (1) The number of inmates who have applied for medical parole;

      (2) The number who have been granted medical parole;

      (3) The nature of the illness of the applicants, and the nature of the placement pursuant to

the medical discharge plan;

      (4) The categories of reasons for denial for those who have been denied;

      (5) The number of releasees on medical parole who have been returned to the custody of

the department of corrections and the reasons for return.

SECTION 2. This act shall take effect upon passage.

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LC01957/SUB A

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