All Advisory Opinions At-A-Glance

Any state may submit an informal written request to the Executive Director for assistance in interpreting the rules of this compact. The Executive Director may seek the assistance of legal counsel, the Executive Committee, or both, in interpreting the rules. The Executive Committee may authorize its standing committees to assist in interpreting the rules. Interpretations of the rules shall be issued in writing by the Executive Director or the Executive Committee and shall be circulated to all of the states. / Advisory Opinion Policy

Issued:
Requester:
At Issue:

Clarification on Offenders being charged fee by sending state after transferred to receiving state.

Finding:

The fee imposed annually under Wisconsin law does not appear to be for the purpose of the supervision of such offenders by parole or probation officers and instead is for the purpose of defraying the cost of sex offender registration and victim notification, it does not appear to fit the criteria of a “supervision fee” and may be collected on Compact offenders. However, under ICAOS Rule 4.108 (a) Wisconsin is solely responsible for the collection of such an annual assessment. While there is no requirement that Michigan undertake to require payment of this fee by an offender, under Rule 4.108 (b), upon notice from Wisconsin that the offender is not complying with this financial obligation, Michigan must notify the offender that this is a violation of the conditions of supervision and must comply as well as providing the offender with the address to which payments are to be sent.

Issued:
Requester:
At Issue:

Clarification on offenders who are undocumented immigrants.

Finding:

1. An undocumented immigrant who meets the definition of “offender” and seeks to transfer under the Compact is subject to the jurisdiction of the Compact and the immigrant’s status as “undocumented” would not be a per se disqualification as long as the immigrant establishes that the prerequisites of Rule 3.101 have been satisfied. This includes the requirement that the immigrant be in ‘substantial compliance’ with the terms and conditions of supervision in the sending state.

2. If a Court knowingly releases an undocumented immigrant to supervision under the compact, the language of the current rules requires that the supervision of such an offender must be transferred if the mandatory criteria of Rule 3.101 are met and the sending state does not revoke parole or probation based upon an offender’s status as an undocumented immigrant.

3. Under Rule 5.101 retaking of an undocumented immigrant is at the sole discretion of the sending state unless the offender comes within the exceptions provided in Rule 5.102 (upon conviction for a new felony offense and completion of incarceration or placement on probation) or as provided in Rule 5.103 (upon a showing that the offender has committed three or more significant violations arising from separate incidents which establish a pattern of non-compliance with the conditions of supervision). In the event that the offender was transferred under the ‘discretionary transfer’ provisions of Rule 3.101-2 and the receiving state has added a special condition to the acceptance of said discretionary transfer which would require retaking of the offender upon determination that the offender is undocumented, then such a special condition would appear to be permitted under the Compact and the rules as was previously concluded in Advisory Opinion 8-2006.

Issued:
Requester:
At Issue:

Closing supervision by the receiving state.

Finding:

A Receiving State Closing supervision interest under Rule 4.112, does not preclude the jurisdiction of the Compact except for cases where the original term of supervision has expired.

Article I of the Compact and Rule 5.107 specifically authorize officers of a sending state to enter a state where the offender is found and apprehend and retake the offender notwithstanding case closure under Rule 4.112 with the exception of cases in which the original term of supervision has expired.

Issued:
Requester:
At Issue:

An offender being in the receiving state prior to investigation as a valid reason for rejection.

Finding:

States which allow eligible offenders to transfer prior to the receiving state having an opportunity to investigate are in violation of the Compact under Rule 3.102 (b) and Rule 2.110. In such circumstances the receiving state can properly reject the request for transfer of such an offender, until returned to the sending state, due to the prior failure of the sending state to comply with the requirements of the compact and the rules referenced.

Issued:
Requester:
At Issue:

Condition obligating offender to complete residential program.

Finding:

A receiving state may impose a special condition on an offender transferred under Rule 3.101-2 to attend a treatment facility and may order the sending state to return the offender if that offender has failed the program if the offender has no other means of support in the receiving state.

Under the compact and its rules the expectation of the special condition imposed on a discretionary case would be that the sending state would immediately initiate retaking procedures by ordering the return of the offender or issuing a warrant for his return.

Issued:
Requester:
At Issue:

Determination of second or subsequent misdemeanor DUI offense.

Finding:

Rule 2.105 (a) (3) provides no such discretion but unequivocally provides that if the “instant offense includes... a second or subsequent misdemeanor offense of driving while impaired by drugs or alcohol” that such a misdemeanor offender “shall be eligible for transfer.” The rule provides no exceptions to applicability based on either the time period between the first and subsequent offense(s) or the jurisdiction in which the convictions occurred.

Issued:
Requester:
At Issue:

Can a receiving state make a determination that an offender is not in substantial compliance in the sending state, when the offender commits a crime in the receiving state during the period of investigation, or when the offender has an outstanding warrant in the receiving state?

Finding:

The sending state determines if an offender is in “Substantial Compliance”. If a sending state has taken no action on outstanding warrants or pending charges the offender is considered to be in substantial compliance under the rule.

Issued:
Rule(s):
Requester:
At Issue:

Guidance from the U.S. Department of Health & Human Services, Office of Civil Rights as to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) Coverage & Exemptions for the Interstate Compact for Adult Offender Supervision

Finding:

HIPAA specifically authorizes disclosures of protected health information to law enforcement officials who need the information in order to provide health care to the individual and for the health and safety of the individual. [45 CFR 164.512 (k)(5)]. Under these provisions it appears that disclosures of health information which are required to provide for treatment of adult offenders subject to the ICAOS would also be exempt from HIPAA requirements.