Medical Records for Compassionate Release
The federal compassionate release law, 18 U.S.C. § 3582(c)(1)(A), is primarily used for prisoners with serious, mostly terminal medical conditions. Despite efforts by Congressmen, Senators, judges, advocates and even the United States Sentencing Commission, the Bureau of Prisons rarely grants compassionate release for any prisoner without such a condition. An important aspect of succeeding at obtaining a compassionate release is to secure and present the appropriate medical records for compassionate release.
For those unfortunately enough to suffer from a debilitating or terminal medical condition while in federal prison, compassionate release may be available. It is crucial that any prisoner seeking such relief understand what the Bureau considers when making its decision. While the Bureau will attempt to gather the appropriate documents on its own, best practices suggest that prisoners spend some time and effort gathering all possible documentation in order to submit a thorough and persuasive compassionate release application.
As an initial matter, if the condition pre-dates the prisoner's time in federal prison, all outside doctor and hospital documentation should be obtained. Family members or an attorney can assist in this process. Due to restrictions on the dissemination of personal medical information, a health care surrogate, power of attorney or HIPAA authorization form may be necessary.
Securing Medical Records from the Institution
Obtaining medical documents from the Bureau of Prisons can be a frustrating process. Patience and perseverance are required.
Prisoner access to their medical records is governed by 28 C.F.R. § 513.42 and Bureau Program Statement 1351.05, Release of Information. The prisoner may submit a request for records to the staff member designated by the Warden. In general, the following records are always disclosable, and may be obtained by the prisoner:
- Medical and related data sheets (old form BP-8).
- Reports of medical history (forms SF-93 or BP-360).
- Reports of medical examination (form SF-88).
- Doctor's orders (form SF-508).
- Medication sheets (forms PHS 2128 and SF-510, supplement).
In addition, laboratory reports which contain only scientific results, and which do not include any staff evaluation or opinion, are disclosable. HIV test results are reviewable by the prisoner, but may not be possessed by them. Such results are allowed to be mailed to a third-party who is not incarcerated.
Medical records that contain subjective evaluations and opinions of medical staff relating to the care and treatment of the prisoner will only be provided to the prisoner after a review process. This process seeks to determine whether the prisoner's possession of such a record "would present a harm to either the prisoner or other individuals." If the review indicates that possession would present no such harm, the record is released to the prisoner. If staff determine otherwise, the prisoner will be advised in writing and will be "provided the address of the agency component to which the [prisoner] may address a formal request for the withheld records." The formal request is also known as a Freedom of Information Act (FOIA) request.
Obtaining Records from the Bureau Using FOIA
The Freedom of Information Act, 5 U.S.C. § 552, allows federal prisoners to request medical records directly from the Bureau. While prisoners are encouraged to obtain records at the institutional level, both 28 C.F.R. § 513.61 and Program Statement 1351.05 permit a prisoner to file a FOIA request. This includes a request for documents that were requested but withheld at the institutional level. The Bureau may still exempt certain information from FOIA disclosure, but the standards for withholding documents required pursuant to FOIA are different than those used at local institutions.
Once a prisoner files a FOIA request, the FOIA Administrator will notify the prisoner of the status of their request. There may be fees associated with a FOIA request, but the first 100 pages and 2 hours of searching are free. After that, documents are billed at $0.10 per page, and searches are billed at between $10 per hour and $32 per hour, depending on the personnel needed to conduct the search.
FOIA requests should be submitted to Director, Federal Bureau of Prisons, 320 First Street, NW, Washington, DC 20534. The prisoner should clearly mark "FREEDOM OF INFORMATION REQUEST" on the front of the envelope. A third party may make a FOIA request on a prisoner's behalf after submitting the prisoner's written authorization. The authorization must be dated within three months of the FOIA request.
Use of Medical Records with Compassionate Release Request
With medical records in hand, the inmate has the supporting documentation needed for their compassionate release request. A common approach is for the inmate to draft their request in a letter format, and then to attach relevant medical records for Bureau review. This format allows the inmate to effectively highlight the medical records that support their compassionate release request.
See our Compassionate Release Examples page for more information.
Retaining Outside Assistance
While there is no cost to file a compassionate release petition, the aid of competent counsel can mean the difference between success and failure. We at the Law Offices of Brandon Sample have extensive experience researching, drafting, submitting, and shepherding compassionate release petitions. As part of our research phase, we always secure supporting documentation for our clients. In fact, we are often able to reach out to specific Bureau staff to expedite the release of records. This is just one of the many benefits to retaining an attorney to assist in the compassionate release process.
If you would like assistance with obtaining medical records for compassionate release, call us at 802-444-4357.