Baker administration tying up medical parole program

Now left to SJC to clarify intent of legislation

EIGHTEEN YEARS AGO, Peter Cruz began serving a sentence of life imprisonment for his role as an accessory in the armed robbery and murder of a Holyoke store manager.

This past January, Cruz, by now 61, wheelchair-bound and suffering from end-stage renal disease, as well as diabetes, coronary artery disease, cervical degenerative joint disease, and a neurological injury resulting from a stroke, petitioned through his attorney for release under the state’s newly-created medical parole program.

Medical parole allows terminally ill or permanently incapacitated prisoners whom the Department of Correction no longer deem a public safety risk to return to the community, subject to monitoring by the state’s Parole Board. Forty-six other states have such programs in place. Massachusetts joined those ranks last year, after the Legislature included medical parole in its comprehensive criminal justice reform legislation.

One reason for releasing these very ill prisoners to the community is the steep price of continuing to incarcerate them. A prisoner with a chronic or terminal illness costs the state two to three times the average inmate cost, in part because of the expense of providing transportation and security to medical facilities outside the prison. Our prison population is also aging quickly: more than a quarter of prisoners are over 50 and a tenth are over 60. Prison life, moreover, is generally not conducive to good health.

Given the likely impending death of the prisoners for whom medical parole is intended, the statute calls for an expedited process. A petition for medical parole may be initiated by the prisoner, by an attorney or family member, or by a medical provider or prison staff member. The prison superintendent is to review the petition, offer a recommendation, and forward it to the Department of Correction within 21 days. The Department then has 45 days to issue a decision.

Despite the Legislature’s efforts to promote medical parole by allowing other persons to originate petitions on a prisoner’s behalf and by imposing deadlines for decision- making, in the 18 months since the statute was enacted, only four of 33 petitions have been approved (and none has been initiated by a prison staff member). And as is the case with another criminal justice reform measure, dealing with solitary confinement, the Baker administration is attempting to stymie the medical parole program through policies that reflect an extremely cramped interpretation of its authorizing statute.

Cruz and another terminally-ill prisoner seeking medical parole challenged these policies in a case now before the Supreme Judicial Court.

One of the policies at issue concerns the medical parole plan that is to accompany the petition. Per the statute, the plan is to set out the medical treatment to be provided, the location of that treatment and subsequent care, the prisoner’s eligibility for health insurance to cover the cost, and, most controversially for Cruz, “documentation that medical providers qualified to provide the medical services identified in the medical parole plan are prepared to provide such services.”

The medical parole plan for Cruz stated that he would live in the wheelchair-accessible home of his sister in Springfield, that she was not otherwise employed and therefore would be available to take him to medical appointments, that two hospitals and a dialysis facility were nearby, and that his medical providers would be doctors in the MassHealth system. The prison superintendent responded that the plan failed to list the “the names of medical providers able and willing” to treat him for each of his many health problems and was therefore incomplete.

Any person with a rudimentary knowledge of the American health care system understands that it’s impossible to offer up the names of specific medical providers before one is enrolled with an insurance carrier. It’s doubtful, therefore, that the Legislature intended for Mr. Cruz to have identified a kidney specialist by name as part of his petition for medical parole. If the Department of Correction doubts that MassHealth is capable of treating Cruz or other prisoners intending to enroll in that program, an inquiry to its sister state agency might resolve the question.

In fact, the Department of Correction and the state’s Office of Medicaid have jointly developed a procedure to help prisoners whose sentences are nearing completion to enroll in MassHealth so that their medical coverage continues without interruption when they are released. The department’s willingness to share this expertise with prisoners applying for medical parole might also help to solve the problem (which the department itself has created), but that willingness has not been forthcoming.

Because the petition Cruz submitted was deemed to be deficient, it was simply returned to him, an action that stopped the clock on his medical parole application. He was not among the 33 prisoners whose petitions have been decided — he didn’t make it that far.

The Supreme Judicial Court heard arguments in his case earlier this month. The decision it hands down will likely clarify how the Legislature intended the medical parole program to work.

A clarification will come too late for Cruz, however. He died in prison on September 9, his petition still in limbo.

Margaret Monsell, a former assistant attorney general and former general counsel to the state Senate Committee on Ways and Means, is an attorney practicing in the Boston area.