MEDICAL PAROLE I. ELIGIBILITY

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1 Alabama provides compassionate release to eligible prisoners who are permanently incapacitated, terminally ill, or elderly ( geriatric ) through its Medical Parole and Medical Furlough programs. MEDICAL PAROLE I. ELIGIBILITY Medical Condition/Age Alabama s new Medical Parole program became effective on Nov. 25, To be eligible for Medical Parole, prisoners must be permanently incapacitated, terminally ill, or elderly/geriatric: Permanently incapacitated means the prisoner (1) is unable to perform at least one necessary daily life function (eating, breathing, toileting, walking, or bathing) and requires assistance with one or more of those daily life functions or is completely immobile; and (2) has such limited physical or mental ability, strength, or capacity that he or she poses an extremely low risk of physical threat to others or to the community. Terminally ill means the prisoner (1) has an incurable condition caused by illness or disease that will, with reasonable medical judgment, result in death within 12 months; and (2) does not constitute a danger to himself or herself or society. Geriatric means the prisoner is age 60 or older and meets all of the following criteria: (1) has a chronic life-threatening infirmity, life-threatening illness, or chronic debilitating disease related to aging; (2) requires assistance with a necessary daily life function (eating, breathing, toileting, walking, or bathing); (3) poses a low risk to the community; and (4) is not a danger to himself or herself or society. Exclusions Prisoners are not eligible for Medical Parole consideration if serving sentences for capital offenses or sex offenses. II. APPLICATION/REFERRAL Identification of Potentially Eligible Prisoners Initial List The Medical Parole law went into effect in November 2017 and it directs the Alabama Department of Corrections (Department), upon the request of the Board of Pardons and Paroles (Board), to immediately provide a list of permanently incapacitated, terminally ill, and geriatric prisoners who are otherwise eligible for parole. Annual List By January 1 of each calendar year, the Department must identify all parole-eligible prisoners who (1) have spent 30 or more days in an infirmary in the

2 prior calendar year; (2) received costly and frequent medical treatment outside a Department facility in the previous 12 months; or (3) are suffering from a lifethreatening illness and expected to die within 12 months. The Board will then determine if the identified prisoners may be considered for Medical Parole. Standing Request/Every Six Months In addition to the annual list, the Department has a standing request to provide the Board with a medical parole list every six months that identifies eligible prisoners who are permanently incapacitated, terminally ill, or geriatric. As Needed In addition to the lists, the Board rules state that the Department may refer any case that meets the [medical or age] criteria at any time. Applications The Medical Parole law and related Board rules do not say whether prisoners, or others on their behalf, can apply directly for Medical Parole without previous identification from the Department. III. DOCUMENTATION AND ASSESSMENT The Department is directed to send the following information about a potentiallyeligible prisoner to the Board: (1) the prisoner s risk for violence; (2) criminal history; (3) institutional behavior; (4) current age and age at the time of the offense; (5) severity of the illness, disease, or infirmities and whether they existed at the time of the offense; (6) all available medical and mental health records; and (7) a reentry plan, which includes alternatives to care in traditional prison settings. Note that the Department has a Re-entry and Pre-Release Program that is available to all parole candidates, which should include those prisoners being considered for Medical Parole. IV. DECISION-MAKING PROCESS Decision Maker The Alabama Board of Pardons and Paroles makes the decisions to grant or deny Medical Parole. Medical Parole Docket/Hearings The Board schedules prisoners identified as permanently incapacitated, terminally ill, and geriatric for a hearing on its next available special medical parole docket. Note that the Board can expedite cases if circumstances exist manifesting a critical need to do so. The Board hearings/meetings for consideration of all parole cases, including Medical Parole, are open to the public. Notice The Board is directed to notify all relevant parties that the prisoner is being considered for Medical Parole at least 30 days prior to the hearing date. This includes the victim of the crime, the Attorney General and district attorney, the judge who presided over the case, and the chief of police or county sheriff where the prisoner committed the crime. 2

3 Interview Once the docket unit has set a hearing date, a designated officer will interview the prisoner and review all Department records to evaluate his or her adjustment, risk, and needs, and submit a report to the Board prior to the hearing/meeting date. Because the rules do not mention any exception for Medical Parole cases, it is assumed these interviews are also being done for prisoners being considered for Medical Parole. o The officers are directed to discuss housing and work plans in the interview. The rules do not clarify whether this will be different for prisoners seeking Medical Parole (such as discussing proposed care arrangements, medical treatment, and a reentry plan specific to the prisoner s medical condition and/or age). Preparation Prior to the hearings, the docket and files of docketed cases are available to Board members so they can prepare for the hearings/meetings. Each case on the docket is reviewed by a Board designee to ensure that all the necessary documents and information are in the file, and to make sure the re-entry plan is satisfactory. Decision Factors In making a Medical Parole decision, the Board takes into consideration all of the information the Department provides regarding the prisoner s medical condition, age, criminal history, institutional behavior, and risk for violence. o The Board may ask the Department for additional supporting medical evidence or request that it conduct additional medical examinations of the prisoner. Board Vote The general rule is that the Board grants parole, including Medical Parole, upon a majority vote. However, Alabama law says that the Board will not grant any form of parole to prisoners serving sentences for violent offenses who have not served at least one third or 10 years of their sentence (whichever is the lesser) except by a unanimous affirmative vote. Conditions Unless otherwise specified in the Medical Parole Act, any prisoner granted Medical Parole by the Board must comply with the Alabama s general parole rules. Beyond that, other than brief statements about the need for a re-entry plan, the new law includes no detailed information about conditions of release or pre-release planning for those seeking Medical Parole. V. POST-DECISION Denials and Appeal Rights If the Board denies Medical Parole without specifying when the case may be docketed in the future, the request will be rescheduled at the discretion of the Board s designee, but at least within two years. Effect of Medical Parole Request on Nonmedical Parole Eligibility Consideration for Medical Parole is in addition to any other release for which a prisoner may be eligible. 3

4 Supervision The Board s Field Services Division is responsible for supervising all parolees. Revocation/Termination Alabama s general parole revocation rules apply to Medical Parole. VI. REPORTING/STATISTICS Reporting Requirements The Board is directed to report, on an annual basis, to the Joint Legislative Interim Prison Committee, House Judiciary Sentencing Commission Subcommittee, and the Alabama Sentencing Commission, detailing the following information: The number of prisoners granted and denied medical parole; The nature of the illnesses, diseases, and conditions of those paroled; Number of prisoners granted medical parole but who could not be released; and Crimes for which the prisoners have been convicted. Number of Prisoners Granted Medical Parole As of April 30, 2018, the Board had not made publicly available information on Medical Paroles, if any, that have been granted. MEDICAL FURLOUGH Prior to passage of the Medical Parole law in 2017, Alabama allowed eligible prisoners who were ill or elderly to be released early only if they qualified for the Medical Furlough program. The Medical Parole law did not repeal the Medical Furlough rules, so furlough appears to still be an available form of compassionate release. Prisoners released on Medical Furlough are still technically in the custody of the Department of Corrections. Because of this, it has been difficult for furloughed prisoners to find placements in nursing homes and to get Medicaid or Medicare coverage. I. ELIGIBILITY Medical Condition/Age To be eligible for a Medical Furlough, prisoners must be permanently incapacitated, terminally ill, or geriatric, defined as follows: Permanently incapacitated means the prisoner has a permanent, irreversible physical or mental health condition that prevents him or her from being able to perpetrate a violent physical action or initiate or participate in a criminal act. o The prisoner must require daily assistance to perform activities of daily living (such as dressing and bathing) and medication or treatment to sustain life. o The prisoner s long-term care needs must potentially exceed the ability of a correctional facility to meet those needs. 4

5 Terminally ill means the prisoner (1) has an incurable condition caused by illness or disease that will, with reasonable medical judgment, result in death within 12 months; and (2) does not constitute a danger to himself or herself or society. Geriatric is defined as being age 55 or older and (1) having a chronic life-threatening infirmity, life-threatening illness, or chronic debilitating disease related to aging; (2) posing a low risk to the community; and (3) not a danger to him or herself or society. Note that a medical condition existing at the time of the prisoner s sentencing cannot provide the basis for Medical Furlough, unless he or she became permanently incapacitated or terminally ill after the date of sentencing. Exclusions Prisoners serving sentences for capital murder or sexual offenses are not eligible for Medical Furlough consideration. Additional Eligibility Criteria To be considered for Medical Furlough, a prisoner must also: Provide written consent to the release, unless he or she is not capable, after being provided a written explanation of needed medical care and the availability of medical services; and Be eligible for Medicaid or Medicare at the time of release, or have a family member who agrees in writing to assume financial responsibility, including the cost of medical care. II. APPLICATION/REFERRAL To start the Medical Furlough process, the prisoner or any concerned person must submit an application form and supporting documentation to the Commissioner. A concerned person includes the prisoner s attorney, family member, physician, or a Department of Corrections (Department) employee. The Department Commissioner is directed to provide application and medical authorization forms to all Department medical care providers, and make the forms available at every correctional facility so they can be distributed to prisoners. III. DOCUMENTATION AND ASSESSMENT Medical Information The application must include (1) a report from at least one physician employed by the Department or its health care provider; and (2) a notarized report from at least one other licensed physician who is not employed by the Department, who is certified in the field of medicine for which the inmate is seeking a medical furlough. The Department may ask that additional medical evidence be produced or that additional medical examinations be conducted. 5

6 For prisoners who have been diagnosed as having a chronic illness or disease related to aging, documentation must be submitted regarding the prisoner s medical history and prognosis, age, and institutional behavior. Discharge Plan The Department must develop a discharge plan for any prisoner granted Medical Furlough, and staff are directed to contact appropriate departments and agencies, including the Department of Public Health, Department of Human Resources, Medicare and Medicaid, hospice organizations, and any other public and nonprofit community service agencies that would be helpful in developing an appropriate discharge plan. IV. DECISION-MAKING PROCESS Decision Maker The Commissioner of the Department of Corrections makes the final decisions on Medical Furlough applications. If the medical documentation indicates the prisoner is permanently incapacitated or terminally ill, the Commissioner must make a decision regarding Medical Furlough within 60 days of receiving the application form and relevant documentation. Decision Factors The Commissioner considers the following factors in making a Medical Furlough decision: (1) the prisoner s risk for violence; (2) criminal history; (3) institutional behavior; (4) current age and age at the time of the offense; (5) severity of the illness, disease, or infirmities; (6) all available medical and mental health records; and (7) the prisoner s release plan, which must include medically appropriate alternative placements. Release If the Commissioner determines that a prisoner meets the requirements for Medical Furlough, he or she must release the prisoner within 90 days of receiving the initial application form. Notice of Release At least 30 days prior to the prisoner s release, the Commissioner is directed to provide notice of the pending Medical Furlough to the district attorney of the jurisdiction where the prisoner was sentenced and to the victim or victim s representative. Conditions The Commissioner determines the conditions of release for any prisoner granted Medical Furlough, including the appropriate level of supervision. In addition to the standard terms and conditions, a prisoner must have medical evaluations at intervals determined by the Commissioner at the time of release. V. POST-DECISION Denials and Appeal Rights If the Commissioner denies release, he or she may schedule further review of the Medical Furlough request. However, prisoners do not have the right to seek judicial review of a Medical Furlough denial. Effect of Medical Furlough on Nonmedical Parole Eligibility Consideration for Medical Furlough is in addition to any other release for which a prisoner may be eligible. 6

7 Termination/Revocation Medical Furlough is for the remainder of a former prisoner s sentence. However, it can be revoked by the Commissioner at his or her discretion. If a furloughed individual s medical condition improves to the extent that he or she no longer meets the eligibility criteria, the Commissioner will revoke the furlough. If a furloughed individual violates any condition of release, or becomes a danger to him or herself or others, the Commissioner can revoke the Medical Furlough. VI. REPORTING/STATISTICS Reporting Requirements The Commissioner is directed to report the following information on an annual basis to the Joint Legislative Interim Prison Committee, House Judiciary Sentencing Commission Subcommittee, and the Alabama Sentencing Commission: The number of prisoners applying for Medical Furlough; The nature of the prisoners illnesses, diseases, and conditions; The number of prisoners granted and denied Medical Furlough; and The number of individuals on Medical Furlough who were returned to Department custody. In addition, the Commissioner must include the status of all prisoners who meet the medical and/or age criteria for Medical Furlough, including prisoners who have spent more than 30 calendar days within the previous 12 months in an infirmary or under direct medical supervision for the medical condition associated with the furlough request or its comorbidities. Number of Prisoners Granted Medical Furlough Current The Department s February 2018 Monthly Statistical Report stated that three prisoners were currently on Medical Furlough: two men and one woman. Total Number Since the program was enacted in 2008, 58 prisoners have been granted Medical Furlough. Cost Savings The Department s 2010 Annual Report includes cost savings information: The Alabama Medical Furlough Act was passed in the FY 2008 Legislative Session. The resulting Medical Furlough Program was implemented in FY 2009, saving the State hundreds of thousands of medical expense by allowing release of inmates with chronic, serious illness that has rendered them incapacitated and therefore no threat to society or public safety. Approximate medical cost savings in 2009 was $500,000. 7

8 This is the only Medical Furlough cost savings information publicly available from the Department. NOTES 1 Ala. Code through (2017), codifying the Alabama Medical Parole Act (SB 87), Act , (2017). See also Alabama Board of Pardons and Paroles Operating Rules, Regulations, and Procedures (Board Rules) (2017), 2 Ala. Code through Alabama Medical Parole Act, Act , 4. See also Brandon Mosely, Medical Parole Bill passes, Alabama Political Reporter, May 19, 2017, 5 Ala. Code (3) and (4). at (5). 6 Note that the age used for the Medical Parole definition of geriatric (60 and older) is different from the age used for the Medical Furlough definition of geriatric (55 and older). 7 Ala. Code (2) and (3). 8 Ala. Code (e); Board Rules, Article 1, 13 (b). 9 Ala. Code (a) (2); Alabama Board of Pardons and Paroles, Board Order, Nov. 9, 2017, at 2, 10 Ala. Code (a) (2); Board Rules, Article 1, 14. The list is not to include prisoners who are not parole-eligible and who were convicted of a capital or sex offense. 11 Ala. Code (a) (2); Board Rules, Article 1, Board Rules, Article 1, Ala. Code (d) (1) - (7). 15 Note that other than the Department s Administrative Regulation 628: Inmate Discharge Planning (AR 628) covering discharge planning for prisoners with mental illness, there does not appear to be any formal policy guidance on reentry plans for prisoners with serious medical conditions or terminal illnesses. 16 The Department provides a re-entry overview, a list of re-entry resources with links to other agencies, and re-entry contacts within the institutions on their website at 17 Ala. Code at (a) (1); Board Rules, Article 1, 13. Note that the Board rules specifically state geriatric, permanently incapacitated, and terminally ill inmates are exempt from the Review Committee process established by [Article 2 of the Board rules]. Scheduling of parole consideration for such inmates will follow the protocol established by Article 1, Sections 13 through 17 of these rules, whether for initial parole consideration or following the Board s denial or revocation of parole. Board Rules, Article 2, Board Rules, Article 16, Ala. Code (a) (1), referencing Ala. Code ; Board Rules, Article 3, 1. See also Board Rules, Article Ala. Code (a) (1), referencing Ala. Code and ; Board Rules, Article 3, 2 and Article 4, Ala. Code (e). 22 Ala. Code (b) (2). 23 Board Rules, Article 3, Board Rules, Article 3, Board Rules, Article 5, Ala. Code (d) (1) - (7). 28 at (c); Board Rules, Article 1, Ala. Code (d). 30 See Ala. Code (15) for a list of the 51 offenses considered violent under Alabama law. 31 Ala. Code (a) (2), referencing Ala. Code (e). 32 at (f), referencing Ala. Code through Ala. Code (d) (7). 34 Board Rules, Article 3, 6. 8

9 35 Ala. Code (b); Board Rules, Article 1, 17. See also general parole rules at Ala. Code through See Ala. Code (a), and Alabama Board of Pardons and Paroles-Divisions web page, pardons.state.al.us/divisions.aspx. 37 Ala. Code (f). See also Alabama Code and , and Board Rules, Articles Ala. Code (g). The report must not disclose any individual identifying information for any particular prisoner and must comply with the Health Insurance Portability and Accountability Act (HIPAA). 39 Ala. Code through Note that the Alabama Department of Corrections Administrative Regulation No. 708 (AR 708) also covers Medical Furlough; however, the regulation has not been updated since 2009, even though the Alabama legislature amended and modified the Medical Furlough statute in AR 708, which includes the Medical Furlough application and other forms, is available at al.us/docs/adminregs/ar708.pdf. However, since it does not include the most recent statutory changes, this report does not reference individual sections of the regulation. 40 Ala. Code (4) at (5). 44 at (3). Note that in the Medical Parole law, geriatric is defined as age 60 or older (rather than the Medical Furlough definition of age 55 or older). See Ala. Code Ala. Code (a). 46 Ala. Code (c). See also Ala. Code (3) and (5). 47 Ala. Code (b). 48 at (c). As referenced earlier, one of the reasons the legislature enacted the Medical Parole Act was that prisoners receiving Medical Furlough were still considered to be in Department custody and therefore not eligible for Medicare or Medicaid. See Brandon Mosely, Medical Parole Bill passes, Alabama Political Reporter, May 18, 2017, 49 The Medical Furlough application forms are available online at AdminRegs/AR708.pdf. 50 Ala. Code (a). 51 at (b) (2). 52 at (b) (1). 53 Ala. Code (f). 54 Ala. Code (d). 55 Ala. Code (e) Ala. Code Ala. Code (d). 59 at (e). 60 at (f). 61 at (g), referencing Ala. Code and Ala. Code (e). 63 at (g). 64 Ala. Code Ala. Code (d). 67 at (g). 68 Ala. Code Ala. Code (h) at (i). 72 Note that the report must not disclose any personal identifying information for any prisoners and must comply with the Health Insurance Portability and Accountability Act (HIPAA) Alabama Department of Corrections, Monthly Statistical Report for February 2018: Fiscal Year 2017, at 9, Note that FY 2016, the year after the 2015 Medical Furlough Act revisions were enacted, shows that 13 Medical Furloughs were approved the largest annual number since the program began. See also Brendan Kirby, 6 years after Alabama Law released 9

10 prison inmates for medical reasons, few have benefited, AL.com, April 16, 2014, wire/2014/04/six_years_after_passage_of_ala.html. 75 Alabama Department of Corrections, ADOC Fiscal Year 2010 Annual Report: A Year in Review, 27 (2010), 10