2011 -- S 0638

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LC01957

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2011

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A N A C T

RELATING TO CRIMINALS - CORRECTIONAL INSTITUTIONS - MEDICAL PAROLE

     Introduced By: Senator Michael J. McCaffrey

     Date Introduced: March 10, 2011

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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death within six (6) months.

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

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

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

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incarceration.

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

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

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

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

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

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incarceration, as determined by the office of financial resources of the department of corrections.

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

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

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

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

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

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

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

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the parole board for its consideration and decision.

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

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

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      (2) Detailed description of the conditions and treatments;

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

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improvement, mobility, and rate of debilitation;

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

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

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activity;

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

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

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severely ill.

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

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

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

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

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

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to the parole board.

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

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

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discharge plan should ensure at the minimum that:

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

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

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

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prisoner' medical expenses has been secured;

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

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assigned to periodically obtain updates on the prisoners medical condition to report back to the

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board.

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

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

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

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

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

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

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

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of a prisoner's sentence.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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change in circumstances.

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

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

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

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

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

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

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

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the public defender if qualified or other representative.

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

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

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

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include the following:

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      (1) Periodic medical examinations;

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

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      (3) Any other terms or conditions that the board deems necessary.; except that in the case

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of a prisoner who is medically paroled due to being severely ill, the parole board shall require

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electronic monitoring as a condition of the medical parole, unless the health care plan mandates

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placement in a medical facility that cannot accommodate the electronic monitoring.

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

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

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

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

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

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and the general assembly. The report shall include:

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

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

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

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the medical discharge plan;

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

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

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the department of corrections and the reasons for return.

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     SECTION 2. This act shall take effect upon passage.

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LC01957

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO CRIMINALS - CORRECTIONAL INSTITUTIONS - MEDICAL PAROLE

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     This act would provide a medical parole procedure for inmates who are severely ill.

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     This act would take effect upon passage.

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LC01957

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