OAR 255-040-0028: Advancing Release Dates for Adults in Custody (AIC) with Severe Medical Condition or Permanent Incapacity

(1) Terms in this rule are defined in OAR 255-005-0005. (2) In accordance with this rule, the Board may advance the parole date of an AIC as provided in ORS 144.122(1)(b) or ORS 144.122(1)(c) or may advance the release date of an AIC as provided in ORS 144.126. (3) Initiating the Process (a) The Board will make available an Early Medical Release Request form (Exhibit-EMR-R) that may be submitted to the Board to request consideration for an advanced release date under this rule. (b) An EMR-R form may be submitted by an AIC, or in the event that the AIC lacks the ability to submit the form on their own behalf, by: (A) the AIC’s legal guardian; (B) a person who is not incarcerated and who has the legal authority to act on behalf of the AIC; or (C) a spouse, parent, child, or sibling of the AIC, and who is not incarcerated. (c) The Board will provide copies of the EMR-R form to the Department of Corrections to make available for AICs. (d) Nothing in this rule should be construed as prohibiting an attorney, legal assistant, medical professional, other professional, or family member, from assisting an AIC with filling out or submitting an EMR-R form. (e) Nothing in this rule should be construed as limiting the Board’s authority to initiate a review on its own initiative. In cases in which the Board has initiated this process on its own initiative, it will complete an EMR-R form to help facilitate the Board’s review. (4) Submitting an EMR Request Form: Exhibit-EMR-R (a) A request may be filed by submitting an EMR-R to the Board by email or mail. (b) A request shall include the following information: (A) a statement on how the AIC is suffering from a severe medical condition including terminal illness, or is elderly and permanently incapacitated in such a manner that they are unable to move from place to place without the assistance of another person; (B) Any available information regarding the AIC’s proposed housing plan, need for housing, or the AIC’s proposed plan for medical care if released; (C) a release of information in order for DOC medical to share information with the Board; and (D) any other relevant information. (5) Eligibility and Medical Information (a) If the Board determines that the AIC is not eligible under ORS 144.122 or ORS 144.126 due to their conviction or sentence, the Board shall notify the applicant that they are not eligible for early release and cease any further review of the application. (b) If the Board determines the AIC is eligible under ORS 144.122 or ORS 144.126, the Board will ask the Department of Corrections to complete and submit a Medical Information Form (Exhibit-EMR-MIF) for the AIC. (6) Request Packet (a) A complete request packet shall include a: (A) completed EMR-R with signed Release of Information submitted by a person under Subsection (3); and (B) completed EMR-MIF provided by DOC medical provider. (b) The Board shall follow all victim’s rights and notification procedures under ORS 144.750. (7) Release Decisions (a) Upon receipt of a complete Request Packet, the Board may advance the release date of an AIC, if the Board determines that continued incarceration is cruel and inhumane and that resetting the release date to an earlier date is not incompatible with the best interests of the AIC and society and that the AIC: (A) suffers from a severe medical condition including terminal illness; or (B) is elderly and is permanently incapacitated in such a manner that the AIC is unable to move from place to place without the assistance of another person. (b) When making the determination in subsection (7)(a) of this rule, the Board may consider, but is not limited to considering, the following information: (A) the age of the AIC; (B) a medical provider’s determination of whether the AIC is elderly and unable to move from place to place without the assistance of another person; (C) whether the AIC has a severe medical condition including a terminal illness; (D) a medical provider’s diagnosis of the nature and severity of AIC’s medical condition and the effect on the AIC’s Activities of Daily Living (ADL); (E) the AIC’s institutional disciplinary conduct; (F) the AIC’s criminal history and history of prior performance on supervision; (G) any available information regarding the AIC’s proposed housing plan and plan for medical care; (H) information relevant to there being a reasonable probability that the AIC will remain in the community without violating the law or conditions of supervision; (I) any available information regarding risk of harm to any victim of the AIC’s previous criminal conduct; (J) if available, an assessment of the AIC’s current risk of re-offending and risk of harm to the community; (K) the degree of premeditation or deviancy involved in the commission of the crime and whether the AIC’s rehabilitative efforts and severe medical condition mitigates those underlying factors; (L) whether the AIC is able to participate in educational, employment, and rehabilitative programs, or other institution activities considering the AIC’s medical condition; and (M) any other relevant information. (c) The Board may order a psychological evaluation under ORS 144.223 and perform a risk assessment prior to making an early medical release determination. An AIC’s refusal to participate with a Board ordered risk assessment or psychological evaluation may be grounds for the Board to deny early medical release. (d) For purposes of this rule, "incapacitated" has an ordinary and common meaning. (8) Initial Decisions (a) The Board may, in its discretion, consider the advancement of release administratively and may grant it upon an affirmative vote of a majority of three Board members or, if the chairperson requires all voting members to participate, a majority of all voting members. (b) The Board may, in its discretion, hold a hearing to consider the information listed in Subsection (7). The hearing shall be conducted in accordance with the Board’s procedural rules in Division 30. (c) The Board shall notify any registered victim, and the district attorney from the committing jurisdiction, of the AIC’s request for Early Medical Release, and provide an opportunity to submit information for the Board to consider prior to making a decision under this subsection. In the event that a hearing is scheduled to consider the AIC’s request for Early Medical Release, the Board shall notify the district attorney from the committing jurisdiction and any registered victim of the date and time of the hearing and provide an opportunity to provide a statement consistent with the procedural rules in OAR 255-030. If provided, the Board shall consider such information prior to making an initial decision. (d) After receipt of a completed Request Packet, the Board shall decide and notify the Department of Corrections, the AIC or their representative, and the district attorney from the committing jurisdiction, and any registered victim, of the Board’s initial decision under the following timelines: (A) 45 days if the decision is made administratively; or (B) 120 days if a hearing is held. (e) If the Board is unable to issue a decision by the timeline in (8)(d), the Board will issue a written notice explaining the reasons for the delay. (f) If the Board determines that advancing the release date of an AIC pursuant to this rule is appropriate, the Board will ask DOC to prepare a release plan, including suitability of medical care and suitable housing. (9) Final Decisions (a) Upon receipt of notice from DOC that a release plan has been determined, including suitability of medical care and suitable housing, the Board will review the plan and make a final determination as to whether to advance the release date of the AIC. (b) If the Board determines the AIC has an appropriate housing placement, and a suitable medical care plan, the Board shall generate a written final order advancing the parole release date or release date and provide the order to DOC and the AIC. (c) Upon notice from DOC that a release plan cannot be determined, including suitability of medical care and suitable housing, the Board may deny the request. (d) After the Board makes a final decision concerning the AIC’s request for Early Medical Release, the Board shall notify the Department of Corrections, the AIC or their representative, and the district attorney from the committing jurisdiction, and any registered victim of the decision. (10) The Board has no authority to grant early release to AICs sentenced under Ballot Measure 11 (ORS 137.700, 137.707). For AICs who committed their crimes after June 12, 1997, and the sentencing order states that the AIC is not entitled to any form of early release, the Board has no authority to grant an early release date. (11) If the Board does not advance the release date of an AIC who has requested Early Medical Release under this rule, any subsequent request should include an assessment as to whether there has been a significant change in the AIC’s medical condition or prognosis since the prior request. (12) The Board has the discretion to prioritize the order in which all requests and notifications are considered. (13) An AIC may seek administrative review of a final decision issued under Subsection (9) of this rule, as provided under Division 80 of the Board’s administrative rules. [ED. NOTE: To view attachments referenced in rule text, click here to view rule.]