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:

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:
Requester:
At Issue:

Resident & Valid Plan of Supervision: Under Rule 3.101 (a) (2), does the resident criterion stand alone for purposes of acceptance? In other words, can a receiving state deny a transfer request for an offender who meets the resident definition but he is unemployed or has no means of support at the time of the transfer request?

Finding:

Mandatory transfers require that the offender is either a resident of the receiving or has resident family and employment in the receiving state. In either situation under this rule all mandatory transfers are subject to the requirement that they be pursuant to a "valid plan of supervision".

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.

Issued:
Requester:
At Issue:

Opinion as to Washington’s “deferred prosecution” statute.

Finding:

Even if a statute is labeled as deferred prosecution it may be the equivalent of a deferred sentence if a finding or plea of guilt has been entered and all that is left is for the Court to impose sentence.

Issued:
Requester:
At Issue:

Interpretation of Pre Parole Transfers requests in 3.105

Finding:

A transfer request from a sending state must be provided up to 120 days in advance of the offender’s planned prison release date. Rule 3.105 (b) requires the sending state to notify the receiving state of the offender’s date of release from prison. Section (b) of this rule is equally clear that notification by the sending state must be furnished to the receiving state if the date of the offender’s release from prison is “withdrawn or denied.”

Issued:
Requester:
At Issue:

Are offenders who are not eligible to transfer under the provisions of Rule 3.101 (a) or Rule 2.105 of the Rules of the Interstate Compact for Adult Offender Supervision permitted to transfer under Rule 3.101 (c) as a discretionary transfer?

Finding:

An offender who is under supervision as that term is defined by the Compact and the rules but who is disqualified based on the nature of the offense or the failure to satisfy the eligibility criteria of Rule 3.101 (a) is nevertheless eligible for transfer of supervision under Rule 3.101 (c) as a discretionary transfer.

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

1. Are the ICAOS rules, which became effective August 1, 2004, applicable to the Final Probation Order entered by the Court on October 2, 2003?

2. If the answer to the first issue is “no,” and the Court allows the defendant, now present in Maryland, to leave the State in order to enroll in the Florida program, would such action constitute an order that would trigger the new Rules of the ICAOS?

3. If the answer to either the first or second issues is “yes,” under the new rules, is the defendant’s probation supervised within the meaning of ICAOS?

Finding:

1. Interim rules for the administration of the new compact remained in effect until superseded by the new rules promulgated by the Commission.

2. A subsequent order allowing the defendant residing in Maryland to leave the state for a Florida program would trigger the new Rules of ICAOS.

3. If this subsequent order imposes a condition or requirement, such as successful completion of a treatment program, and requires the facility to monitor these conditions or any violations then this would constitute supervision as defined by the ICAOS rules.

Issued:
Requester:
At Issue:

Arresting & Detaining Compact Probationers and Parolees. Authority of officers to arrest an out-of-state offender sent to Florida under the ICAOS on probation violations.

Finding:

Out of State offenders can be arrested and detained for committing new crimes in the receiving state pursuant to State Law or upon the request of the sending state pending retaking. Out of state offenders can be arrested and detained for failure to comply with conditions of probation if such a failure would have resulted in an arrest of a similar situated in-state offender.