PRINTER'S NO. 1029
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
835
Session of
2021
INTRODUCED BY STREET, KANE, MUTH, COLLETT, KEARNEY, COSTA,
SAVAL, COMITTA, TARTAGLIONE, CAPPELLETTI, BARTOLOTTA AND
HAYWOOD, AUGUST 11, 2021
REFERRED TO JUDICIARY, AUGUST 11, 2021
AN ACT
Amending Titles 42 (Judiciary and Judicial Procedure) and 61
(Prisons and Parole) of the Pennsylvania Consolidated
Statutes, in sentencing, repealing provisions relating to
transfer of inmates in need of medical treatment; in
Pennsylvania Board of Probation and Parole, providing for
parole for reasons of age or illness and for medical parole
due to public or disaster emergency related to health or
contagious disease outbreak; and abrogating regulations.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 9777 of Title 42 of the Pennsylvania
Consolidated Statutes is repealed:
[ยง 9777. Transfer of inmates in need of medical treatment.
(a) Inmates committed to custody of department.--If an
inmate is committed to the custody of the department, the
department, the inmate or a person to whom the court grants
standing to act on behalf of the inmate may petition the
sentencing court to temporarily defer service of the sentence of
confinement and temporarily remove the inmate committed to the
custody of the department, or other facility, for placement in a
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hospital, long-term care nursing facility or hospice care
location. The following shall apply:
(1) The sentencing court may approve the petitioner's
request to temporarily defer service of the sentence of
confinement and place the inmate in a hospital or long-term
care nursing facility under electronic monitoring by the
department upon clear and convincing proof that all of the
following apply:
(i) The medical needs of the inmate can be more
appropriately addressed in the hospital or long-term care
nursing facility.
(ii) The hospital or long-term care nursing facility
requested by the petitioner has agreed to accept the
placement of the inmate and to provide necessary medical
care.
(iii) The inmate is seriously ill and is expected by
a treating physician to not live for more than one year.
(iv) There are no writs filed or detainers lodged
against the inmate and the inmate is not subject to any
court order requiring the inmate's presence.
(v) The placement in the hospital or long-term care
nursing facility does not pose an undue risk of escape or
danger to the community. In making this determination,
the sentencing court shall consider the inmate's
institutional conduct record, whether the inmate was ever
convicted of a crime of violence, the length of time that
the inmate has been imprisoned and any other factors the
sentencing court deems relevant.
(vi) The hospital or long-term care nursing facility
has agreed to notify the department and the court of any
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material changes in the health status of the inmate, the
nature of the care provided or other information required
by the department.
(vii) Each agency representing the Commonwealth at a
proceeding which resulted in an order committing or
detaining the inmate, the State or local correctional
facility housing the inmate and any registered crime
victim have been given notice and an opportunity to be
heard on the petition.
(2) The sentencing court may approve the petitioner's
request to temporarily defer service of the sentence of
confinement in order for the inmate to receive care from a
licensed hospice care provider, proposed by the petitioner
and subject to electronic monitoring by the department, if
all of the following are established by clear and convincing
proof:
(i) The inmate is terminally ill, not ambulatory and
likely to die in the near future.
(ii) The licensed hospice care provider can provide
the inmate with more appropriate care.
(iii) Appropriate medical care and palliative and
supportive services will be provided by the licensed
hospice care provider at the proposed hospice care
location.
(iv) The placement of the inmate in the proposed,
licensed hospice care location does not pose an undue
risk of escape or danger to the community. In making this
determination, the sentencing court shall consider the
inmate's institutional conduct record, whether the inmate
was ever convicted of a crime of violence, the length of
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time that the inmate has been imprisoned and any other
factors the sentencing court deems relevant.
(v) The licensed hospice care provider has agreed to
notify the department and the sentencing court of any
material changes in the health status of the inmate, the
nature of the hospice care provided or other information
required by the department or the sentencing court.
(vi) Each agency representing the Commonwealth at a
proceeding which resulted in an order committing or
detaining the inmate, the State or local correctional
facility housing the inmate and any registered crime
victim have been given notice and an opportunity to be
heard on the petition.
(3) Any order entered pursuant to this subsection
temporarily deferring service of an inmate's sentence of
confinement shall include a provision that the department or
prosecuting attorney may at any time petition the sentencing
court for an order directing that the inmate be recommitted
to the custody of the department if the circumstances under
which the inmate was released change or for any previously
unknown circumstances, including a change in the inmate's
medical status, the inmate's risk of escape, the inmate's
danger to the community or the nature of the medical or other
care provided by the hospital, long-term care nursing
facility or hospice care provider.
(4) The sentencing court may terminate at any time its
order authorizing the temporary deferral of the service of an
inmate's sentence of confinement entered pursuant to this
subsection. An inmate taken into custody pursuant to an order
directing the inmate's detention or recommitment under this
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subsection shall be delivered to the nearest State
correctional institution pending a hearing on the matter.
(b) Inmates committed to custody of other facilities.--An
inmate not committed to the custody of the department but
confined in an institution authorized to incarcerate or detain
persons for criminal sentences, violations of criminal law or
orders of parole, probation, bail or other order related to a
civil or criminal matter may have service of the sentence of
confinement deferred and may be placed in a hospital, long-term
care nursing facility or licensed hospice care location, subject
to electronic monitoring, by order of the judge that committed
the inmate to the facility or institution or by another
available judge designated to preside if all of the following
are established by clear and convincing proof:
(1) The chief administrator, the chief administrator's
designee, the inmate or a person to whom the court grants
standing to act on behalf of the inmate petitions the court
or has given written consent to the grant of a petition under
this section filed on behalf of the inmate.
(2) There is sufficient proof to establish the
requirements for a placement to a hospital or long-term care
nursing facility under subsection (a)(1) or a placement to a
hospice care location under subsection (a)(2).
(3) An entry of an order pursuant to this subsection
temporarily deferring service of an inmate's sentence of
confinement shall include a provision that the chief
administrator or the prosecuting attorney may at any time
petition the sentencing court seeking the issuance of a bench
warrant directing that the inmate be recommitted to the
custody of the appropriate correctional institution if the
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circumstances under which the inmate was released change or
for previously unknown circumstances, including a change in
the inmate's medical status, the inmate's risk of escape, the
inmate's danger to the community or the nature of the medical
or other care provided by the hospital, long-term care
nursing facility or hospice care provider.
(4) The sentencing court may terminate at any time its
order authorizing the temporary deferral of the service of an
inmate's sentence of confinement entered pursuant to this
subsection. An inmate taken into custody pursuant to an order
directing detention or recommitment under this subsection
shall be delivered to the county correctional institution or
other institution at which the inmate was confined prior to
the entry of the order deferring the service of the sentence
of confinement pending a hearing on the matter.
(c) Service.--Any petition filed under this section shall be
served on each agency representing the Commonwealth at each
proceeding which resulted in an order by which the inmate is
committed or detained and to the correctional institution or
institution responsible for housing the inmate. Each party shall
have an opportunity to object and be heard as to the petition
for alternative placement, the circumstances of placement, the
conditions of return or any other relevant issue. The court
shall ensure that any crime victim entitled to notification
under section 201(7) or (8) of the act of November 24, 1998
(P.L.882, No.111), known as the Crime Victims Act, has been
given notice and the opportunity to be heard on the petition.
All parties served or notified under this subsection shall
receive a copy of the final order adjudicating the petition.
(d) Notice.--
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(1) Any order entered under this section placing an
inmate in a hospital, long-term care nursing facility or
hospice care location which provides care to persons who were
not placed therein pursuant to an order entered under this
section shall direct the individual in charge of the
hospital, long-term care nursing facility or hospice care
location to ensure that each person receiving care at, and
each employee or contractor working in, the hospital, long-
term care nursing facility or hospice care location is
notified that the placement was ordered if it is foreseeable
that the person, employee or contractor will come into
contact with the inmate during the placement.
(2) The sentencing court shall forward notice of any
order entered under this section placing an inmate in a
hospital, long-term care nursing facility or hospice care
location to the hospital, long-term care nursing facility or
hospice care location and to the Department of Public
Welfare.
(e) Petition requirements.--Any petition filed pursuant to
this section must aver:
(1) The name of the hospital, long-term care nursing
facility or hospice care location proposed for placement.
(2) That the petitioner reasonably believes the named
hospital, long-term care nursing facility or hospice care
location has agreed to accept the placement of the inmate and
the facts upon which that belief is based.
(f) Removal from placement.--If an inmate placed in a
hospital, long-term care nursing facility or hospice care
location pursuant to this chapter removes himself from the
hospital, long-term care nursing facility or hospice care
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location, the inmate shall be subject to arrest upon probable
cause and shall, upon conviction thereof, be guilty of criminal
contempt.
(g) Definitions.--As used in this section, the following
words and phrases shall have the meanings given to them in this
subsection unless the context clearly indicates otherwise:
"Chief administrator." As defined under 61 Pa.C.S. ยง 102
(relating to definitions).
"Department." The Department of Corrections of the
Commonwealth.
"Hospice care location." A home, independent living
environment or inpatient setting that provides a coordinated
program of palliative and supportive services through a licensed
hospice care provider.
"Hospital." An entity licensed as an acute-care general
hospital, a specialty hospital or a rehabilitation hospital
under the act of July 19, 1979 (P.L.130, No.48), known as the
Health Care Facilities Act.
"Licensed hospice care provider." A hospice as defined under
section 802.1 of the act of July 19, 1979 (P.L.130, No.48),
known as the Health Care Facilities Act.
"Long-term care nursing facility." A long-term care nursing
facility as defined under section 802.1 of the act of July 19,
1979 (P.L.130, No.48), known as the Health Care Facilities Act.
"Prosecuting attorney." The Office of Attorney General of
the Commonwealth or the office of a district attorney of a
county who represented the Commonwealth at the most recent
sentencing of an inmate.
"Sentencing court." The trial judge who most recently
sentenced an inmate or, if the trial judge is no longer serving
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as a judge of that court, the president judge of the county
court of common pleas.]
Section 2. Title 61 is amended by adding sections to read:
ยง 6144. Parole for reasons of age or illness.
(a) General rule.-- N otwithstanding any other provision of
law, the board may grant parole to an incarcerated individual
upon petition by the department or the incarcerated individual
when any of the following apply:
(1) The incarcerated individual has a substantially
diminished ability to function in a correctional institution
due to any of the following :
(i) A terminal illness.
(ii) A chronic and debilitating physical or medical
condition or disease.
(iii) A serious functional or cognitive impairment.
(iv) Deteriorating physical or mental health due to
the aging process.
(2) All of the following criteria are met:
(i) The incarcerated individual is at l east 55 years
of age and has served the lesser of 25 years in prison or
one-half of the minimum term imposed for the offense for
which the incarcerated individual is currently
imprisoned.
(ii) The board determines that the incarcerated
individual would not presently pose a danger to others or
the general public if released.
(a.1) Medical records.--The medical records of an
incarcerated individual shall be made readily available to the
incarcerated individual for purposes of filing a petition under
subsection (a).
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(b) Department notification.--If the petition for parole is
filed by the incarcerated individual under subsection (a), the
incarcerated individual shall provide a copy of the petition to
the department within seven business days of filing the
petition.
(c) Victim notification.--W ithin three business days of
receiving an incarcerated individual's petition for parole or of
the department's filing of a petition for parole on behalf of an
incarcerated individual under subsection (a), the board shall,
subject to any applicable confidentiality requirements, take all
of the following actions:
(1) Notify the Office of Victim Advocate and any
registered victim of the incarcerated individual's offense of
the petition and the general reasons for the petition.
(2) Provide the Office of Victim Advocate and any
registered victims an opportunity to respond within seven
days in writing to the board.
(d) Family and incarcerated individual notification.--The
following shall apply:
(1) No later than 72 hours after an incarcerated
individual is diagnosed with a terminal illness, the
department shall, subject to any applicable confidentiality
requirements, take all of the following actions:
(i) Notify the attorney, spouse or partner or an
immediate family member of the incarcerated individual of
the incarcerated individual's condition.
(ii) Inform the attorney, spouse or partner or an
immediate family member of the incarcerated individual
that the attorney, spouse or partner or immediate family
member may prepare and submit on the incarcerated
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individual's behalf a petition for parole in accordance
with subsection (a).
(iii) Provide the incarcerated individual's medical
records to the incarcerated individual and the attorney,
spouse or partner or an immediate family member of the
incarcerated individual.
(2) No later than seven days after the date an
incarcerated individual is diagnosed with a terminal illness,
provide the spouse or partner and family members of the
incarcerated individual, including extended family, with an
opportunity to visit the incarcerated individual in person
unless compelling reasons exist for denying visitation and
the reasons are provided in writing.
(3) U p on request from an incarcerated individual or the
attorney, spouse or partner or a family member of the
incarcerated individual, ensure that department employees
assist the incarcerated individual in the preparation,
drafting and submission of a petition for parole in
accordance with subsection (a). In the case of an
incarcerated individual who is physically or mentally unable
to prepare or file a petition for parole under subsection
(a) , the department shall have all of the following duties:
(i) Inform the attorney, spouse or partner or an
immediate family member of the incarcerated individual
that the attorney, spouse or partner or immediate family
member may prepare and submit on the incarcerated
individual's behalf a petition for parole under
subsection (a) .
(ii) Upo n request from the incarcerated individual
or the attorney, spouse or partner or an immediate family
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member of the incarcerated individual, take all of the
following actions:
(A) Ensu re that department employees assist the
incarcerated individual in the preparation, drafting
and submission of a petition for parole under
subsection (a).
(B) With in three days of the request, provide
the incarcerated individual's medical records to the
incarcerated individual and the attorney, spouse or
partner or an immediate family member of the
incarcerated individual.
(4) Ensure that employees at all correctional
institutions regularly and visibly post, including in
incarcerated individual handbooks, staff training materials,
law libraries and medical and hospice facilities, and make
available to incarcerated individuals upon demand, notice of
all of the following:
(i) A n incarcerated individual's right to petition
for parole under subsection (a).
(ii) The procedures and deadlines for initiating and
resolving petitions made under this subsection and
subsections (c) and (e).
(e) Duties of board.--The following shall apply:
(1) Within two days of receipt of a petition for parole
under subsection (a), the board shall notify the secretary of
the receipt of the petition and offer the secretary an
opportunity to make a recommendation on the petition. No
later than 10 days after receipt of notice that the board has
received a petition, the secretary may offer a recommendation
in writing to the board.
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(2) The board shall issue a decision on a petition for
parole under subsection (a) and state the reasons for the
decision as follows:
(i) Within 15 days for a petition made based on the
criteria under subsection (a)(1).
(ii) Within 30 days for a petition made based on the
criteria under subsection (a)(2).
(3) The board shall immediately provide a copy of the
decision under paragraph (2) to all of the following:
(i) The incarcerated individual.
(ii) The incarcerated individual's attorney.
(iii) The Office of Victim Advocate and any
registered victim of the incarcerated individual's
offense.
(iv) The secretary.
(4) T he board shall, when issuing a decision on the
petition under paragraph (2), consider all of the following:
(i) A response to the petition by the Office of
Victim Advocate and any registered victim of the
incarcerated individual's offense.
(ii) Recommendations by the secretary, if any.
(iii) The incarcerated individual's offense that
resulted in the conviction.
(iv) The incarcerated individual's sentence and time
served for the conviction.
(v) The incarcerated individual's current age,
physical and mental condition and ability to function
within a correctional environment.
(vi) The incarcerated individual's postrelease care
plan if a plan exists.
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(vii) The incarcerated individual's disciplinary
record, a full set of records of accomplishments and any
records demonstrating rehabilitation while incarcerated.
(viii) The likelihood that the incarcerated
individual would pose a danger to others or the general
public if released.
(5) In granting parole under paragraph (2), the board
may impose any reasonable terms and conditions of parole
specifically tailored to the circumstances relating to the
sentence that is the least restrictive of the incarcerated
individual's individual liberty.
(e.1) Denial of petition.--Notwithstanding any other
provision of law, if the board denies a petition for parole
under subsection (e):
(1) The following:
(i) The incarcerated individual may file a State
court habeas corpus petition challenging the denial. The
court shall act upon a petition by holding a hearing
within 60 days of receipt of the petition.
(ii) The incarcerated individual or the department
may submit another petition for parole under subsection
(a) for reconsideration by the board:
(A) within 30 days of receipt of notice of the
denial; or
(B) if the incarcerated individual's medical
condition demonstrably worsens.
(2) In addition to paragraph (1), the incarcerated
individual or the department may submit another petition for
parole under subsection (a) one year after the date that the
initial petition was filed.
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(f) Right to counsel.--Notwithstanding any other provision
of law, an incarcerated individual who submits a petition under
subsection (a) or (e.1)(1)(ii), shall have the right to
assistance of counsel, including appointment of counsel if the
incarcerated individual is indigent, for proceedings in front of
the board and for any State court habeas petition filed under
subsection (e.1).
(g) Reports.--No later than September 1, 2021, and each
September 1 thereafter, the secretary shall submit to the
chairperson and minority chairperson of the Judiciary Committee
of the Senate and the chairperson and minority chairperson of
the Judiciary Committee of the House of Representatives a report
on petitions for parole under subsection (a) and shall make the
report available on the department's publicly accessible
Internet website. The report shall include a description of all
of the following for the previous year:
(1) T he number of incarcerated individuals granted and
denied parole, categorized by the criteria relied on as the
grounds for parole.
(2) The number of petitions initiated by or on behalf of
incarcerated individuals, categorized by the criteria relied
on as the grounds for parole.
(3) Th e number of petitions that department
employees assisted incarcerated individuals in drafting,
preparing or filing, categorized by the criteria relied on as
the grounds for parole, and the final decision made in each
petition.
(4) T he number of petitions that attorneys, spouses or
partners and immediate family members of incarcerated
individuals submitted on behalf of the incarcerated
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individuals, categorized by the criteria relied on as the
grounds for parole, and the final decision made in each
petition.
(5) T he number of petitions filed by the department,
categorized by the criteria relied on as the grounds for
parole, and the final decision made in each petition .
(6) For each petition filed by the department based on
the criteria under subsection (a)(1), the time elapsed
between the date the incarcerated individual was diagnosed
and the date the department filed the petition, categorized
by the criteria relied on as the grounds for parole, and the
final decision made in each petition.
(7) For each criteria specified under subsection (a),
the number of incarcerated individuals who died while a
petition for parole was pending.
(8) The number of notifications by the department to
attorneys, spouses or partners and family members of
incarcerated individuals of their right to visit terminally
ill incarcerated individuals as required under subsection (d)
(2), whether visits occurred and how much time elapsed
between the notifications and the visits.
(9) The nu mber of visits to terminally ill incarcerated
individuals that were denied by the department due to
security or other concerns, and the reasons given for the
denials.
(h) Regulations.--The board and the department shall
promulgate regulations necessary to implement the provisions of
this section.
(i) Definitions.--As used in this section, the following
words and phrases shall have the meanings given to them in this
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subsection unless the context clearly indicates otherwise:
"Chronic and debilitating physical or medical condition or
disease." A medical condition that is persistent or permanent,
requires medication or ongoing care from a physician or impairs
a person's ability to perform routine daily tasks or self-care.
"Deteriorating physical or mental health." A loss of
mobility in the limbs or body, an inability to walk without
assistance, incontinence, forgetfulness or disorientation, an
inability to perform routine daily tasks or self-care without
assistance or supervision or a similar health issue.
"Serious functional or cognitive impairment." A c ondition
that is persistent or permanent and limits the incarcerated
individual's ability to reason, perceive, comprehend or
communicate. The term includes, but is not limited to,
intellectual disability, mental illness, dementia or brain
damage from injury or stroke.
"Substantially diminished." The incarcerated individual is
unable or only partially able to perform one or more essential
daily tasks or self-care without partial or total assistance or
supervision.
"T erminal illness." A disease or condition with an end-of-
life trajectory, with or without a specific prognosis of life
expectancy. The term includes metastatic solid-tumor cancer,
amyotrophic lateral sclerosis (ALS), end-stage organ disease,
advanced dementia or a similar disease or condition.
ยง 6145. Medical parole due to public or disaster emergency
related to health or contagious disease outbreak.
Notwithstanding any other provision of law, when a public or
disaster emergency related to health is declared or a contagious
disease outbreak occurs in a department facility which the
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facility is unable to contain or from which the facility cannot
protect vulnerable individuals, the board may grant medical
parole to incarcerated individuals who, due to the individual's
age or underlying health conditions, are at risk of serious
complications or death should the individual contract the
disease or virus. When granting medical parole under this
section, the board may use any expedited review process it deems
necessary and appropriate to release vulnerable individuals in a
timely fashion.
Section 3. All regulations and parts of regulations are
abrogated to the extent of any inconsistency with the provisions
of this act.
Section 4. This act shall take effect in 60 days.
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