§ 259-R — Release on medical parole for terminally ill incarcerated individuals

§ 259-r. Release on medical parole for terminally ill incarcerated\nindividuals. 1. * (a) The board shall have the power to release on\nmedical parole any incarcerated individual serving an indeterminate or\ndeterminate sentence of imprisonment who, pursuant to subdivision two of\nthis section, has been certified to be suffering from a terminal\ncondition, disease or syndrome and to be so debilitated or incapacitated\nas to create a reasonable probability that he or she is physically or\ncognitively incapable of presenting any danger to society, provided,\nhowever, that no incarcerated individual serving a sentence imposed upon\na conviction for murder in the first degree or an attempt or conspiracy\nto commit murder in the first degree shall be eligible for such release,\nand provided further that no incarcerated individual serving a sentence\nimposed upon a conviction for any of the following offenses shall be\neligible for such release unless in the case of an indeterminate\nsentence he or she has served at least one-half of the minimum period of\nthe sentence and in the case of a determinate sentence he or she has\nserved at least one-half of the term of his or her determinate sentence:\nmurder in the second degree, manslaughter in the first degree, any\noffense defined in article one hundred thirty of the penal law or an\nattempt to commit any of these offenses. Solely for the purpose of\ndetermining medical parole eligibility pursuant to this section, such\none-half of the minimum period of the indeterminate sentence and\none-half of the term of the determinate sentence shall not be credited\nwith any time served under the jurisdiction of the department prior to\nthe commencement of such sentence pursuant to the opening paragraph of\nsubdivision one of section 70.30 of the penal law or subdivision two-a\nof section 70.30 of the penal law, except to the extent authorized by\nsubdivision three of section 70.30 of the penal law.\n * NB Effective until September 1, 2027\n * (a) The board shall have the power to release on medical parole any\nincarcerated individual serving an indeterminate or determinate sentence\nof imprisonment who, pursuant to subdivision two of this section, has\nbeen certified to be suffering from a terminal condition, disease or\nsyndrome and to be so debilitated or incapacitated as to create a\nreasonable probability that he or she is physically or cognitively\nincapable of presenting any danger to society, provided, however, that\nno incarcerated individual serving a sentence imposed upon a conviction\nfor murder in the first degree or an attempt or conspiracy to commit\nmurder in the first degree shall be eligible for such release, and\nprovided further that no incarcerated individual serving a sentence\nimposed upon a conviction for any of the following offenses shall be\neligible for such release unless in the case of an indeterminate\nsentence he or she has served at least one-half of the minimum period of\nthe sentence and in the case of a determinate sentence he or she has\nserved at least one-half of the term of his or her determinate sentence:\nmurder in the second degree, manslaughter in the first degree, any\noffense defined in article one hundred thirty of the penal law or an\nattempt to commit any of these offenses. Solely for the purpose of\ndetermining medical parole eligibility pursuant to this section, such\none-half of the minimum period of the indeterminate sentence and\none-half of the term of the determinate sentence shall not be credited\nwith any time served under the jurisdiction of the department prior to\nthe commencement of such sentence pursuant to the opening paragraph of\nsubdivision one of section 70.30 of the penal law or subdivision two-a\nof section 70.30 of the penal law, except to the extent authorized by\nsubdivision three of section 70.30 of the penal law.\n * NB Effective September 1, 2027\n (b) Such release shall be granted only after the board considers\nwhether, in light of the incarcerated individual's medical condition,\nthere is a reasonable probability that the incarcerated individual, if\nreleased, will live and remain at liberty without violating the law, and\nthat such release is not incompatible with the welfare of society and\nwill not so deprecate the seriousness of the crime as to undermine\nrespect for the law, and shall be subject to the limits and conditions\nspecified in subdivision four of this section. Except as set forth in\nparagraph (a) of this subdivision, such release may be granted at any\ntime during the term of an incarcerated individual's sentence,\nnotwithstanding any other provision of law.\n (c) The board shall afford notice to the sentencing court, the\ndistrict attorney and the attorney for the incarcerated individual that\nthe incarcerated individual is being considered for release pursuant to\nthis section and the parties receiving notice shall have fifteen days to\ncomment on the release of the incarcerated individual. Release on\nmedical parole shall not be granted until the expiration of the comment\nperiod provided for in this paragraph.\n 2. (a) The commissioner, on the commissioner's own initiative or at\nthe request of an incarcerated individual, or an incarcerated\nindividual's spouse, relative or attorney, may, in the exercise of the\ncommissioner's discretion, direct that an investigation be undertaken to\ndetermine whether a diagnosis should be made of an incarcerated\nindividual who appears to be suffering from a terminal condition,\ndisease or syndrome. Any such medical diagnosis shall be made by a\nphysician licensed to practice medicine in this state pursuant to\nsection sixty-five hundred twenty-four of the education law. Such\nphysician shall either be employed by the department, shall render\nprofessional services at the request of the department, or shall be\nemployed by a hospital or medical facility used by the department for\nthe medical treatment of incarcerated individuals. The diagnosis shall\nbe reported to the commissioner and shall include but shall not be\nlimited to a description of the terminal condition, disease or syndrome\nsuffered by the incarcerated individual, a prognosis concerning the\nlikelihood that the incarcerated individual will not recover from such\nterminal condition, disease or syndrome, a description of the\nincarcerated individual's physical or cognitive incapacity which shall\ninclude a prediction respecting the likely duration of the incapacity,\nand a statement by the physician of whether the incarcerated individual\nis so debilitated or incapacitated as to be severely restricted in his\nor her ability to self-ambulate or to perform significant normal\nactivities of daily living. This report also shall include a\nrecommendation of the type and level of services and treatment the\nincarcerated individual would require if granted medical parole and a\nrecommendation for the types of settings in which the services and\ntreatment should be given.\n (b) The commissioner, or the commissioner's designee, shall review the\ndiagnosis and may certify that the incarcerated individual is suffering\nfrom such terminal condition, disease or syndrome and that the\nincarcerated individual is so debilitated or incapacitated as to create\na reasonable probability that he or she is physically or cognitively\nincapable of presenting any danger to society. If the commissioner does\nnot so certify then the incarcerated individual shall not be referred to\nthe board for consideration for release on medical parole. If the\ncommissioner does so certify, then the commissioner shall, within seven\nworking days of receipt of such diagnosis, refer the incarcerated\nindividual to the board for consideration for release on medical parole.\nHowever, no such referral of an incarcerated individual to the board\nshall be made unless the incarcerated individual has been examined by a\nphysician and diagnosed as having a terminal condition, disease or\nsyndrome as previously described herein at some time subsequent to such\nincarcerated individual's admission to a facility operated by the\ndepartment of correctional services.\n (c) When the commissioner refers an incarcerated individual to the\nboard, the commissioner shall provide an appropriate medical discharge\nplan established by the department. The department is authorized to\nrequest assistance from the department of health and from the county in\nwhich the incarcerated individual resided and committed his or her\ncrime, which shall provide assistance with respect to the development\nand implementation of a discharge plan, including potential placements\nof a releasee. The department and the department of health shall jointly\ndevelop standards for the medical discharge plan that are appropriately\nadapted to the criminal justice setting, based on standards established\nby the department of health for hospital medical discharge planning. The\nboard may postpone its decision pending completion of an adequate\ndischarge plan, or may deny release based on inadequacy of the discharge\nplan.\n 3. Any certification by the commissioner or the commissioner's\ndesignee pursuant to this section shall be deemed a judicial function\nand shall not be reviewable if done in accordance with law.\n 4. (a) Medical parole granted pursuant to this section shall be for a\nperiod of six months.\n (b) The board shall require as a condition of release on medical\nparole that the releasee agree to remain under the care of a physician\nwhile on medical parole and in a hospital established pursuant to\narticle twenty-eight of the public health law, a hospice established\npursuant to article forty of the public health law or any other\nplacement that can provide appropriate medical care as specified in the\nmedical discharge plan required by subdivision two of this section. The\nmedical discharge plan shall state that the availability of the\nplacement has been confirmed, and by whom. Notwithstanding any other\nprovision of law, when an incarcerated individual who qualifies for\nrelease under this section is cognitively incapable of signing the\nrequisite documentation to effectuate the medical discharge plan and,\nafter a diligent search no person has been identified who could\notherwise be appointed as the incarcerated individual's guardian by a\ncourt of competent jurisdiction, then, solely for the purpose of\nimplementing the medical discharge plan, the facility health services\ndirector at the facility where the incarcerated individual is currently\nincarcerated shall be lawfully empowered to act as the incarcerated\nindividual's guardian for the purpose of effectuating the medical\ndischarge.\n (c) Where appropriate, the board shall require as a condition of\nrelease that medical parolees be supervised on intensive caseloads at\nreduced supervision ratios.\n (d) The board shall require as a condition of release on medical\nparole that the releasee undergo periodic medical examinations and a\nmedical examination at least one month prior to the expiration of the\nperiod of medical parole and, for the purposes of making a decision\npursuant to paragraph (e) of this subdivision, that the releasee provide\nthe board with a report, prepared by the treating physician, of the\nresults of such examination. Such report shall specifically state\nwhether or not the parolee continues to suffer from a terminal\ncondition, disease, or syndrome, and to be so debilitated or\nincapacitated as to be severely restricted in his or her ability to\nself-ambulate or to perform significant normal activities of daily\nliving.\n (e) Prior to the expiration of the period of medical parole the board\nshall review the medical examination report required by paragraph (d) of\nthis subdivision and may again grant medical parole pursuant to this\nsection; provided, however, that the provisions of paragraph (c) of\nsubdivision one and subdivision two of this section shall not apply.\n (f) If the updated medical report presented to the board states that a\nparolee released pursuant to this section is no longer so debilitated or\nincapacitated as to create a reasonable probability that he or she is\nphysically or cognitively incapable of presenting any danger to society\nor if the releasee fails to submit the updated medical report then the\nboard may not make a new grant of medical parole pursuant to paragraph\n(e) of this subdivision. Where the board has not granted medical parole\npursuant to such paragraph (e) the board shall promptly conduct through\none of its members, or cause to be conducted by a hearing officer\ndesignated by the board, a hearing to determine whether the releasee is\nsuffering from a terminal condition, disease or syndrome and is so\ndebilitated or incapacitated as to create a reasonable probability that\nhe or she is physically or cognitively incapable of presenting any\ndanger to society and does not present a danger to society. If the board\nmakes such a determination then it may make a new grant of medical\nparole pursuant to the standards of paragraph (b) of subdivision one of\nthis section. At the hearing, the releasee shall have the right to\nrepresentation by counsel, including the right, if the releasee is\nfinancially unable to retain counsel, to have the appropriate court\nassign counsel in accordance with the county or city plan for\nrepresentation placed in operation pursuant to article eighteen-B of the\ncounty law.\n (g) The hearing and determination provided for by paragraph (f) of\nthis subdivision shall be concluded within the six month period of\nmedical parole. If the board does not renew the grant of medical parole,\nit shall order that the releasee be returned immediately to the custody\nof the department.\n (h) In addition to the procedures set forth in paragraph (f) of this\nsubdivision, medical parole may be revoked at any time upon any of the\ngrounds specified in paragraph (a) of subdivision three of section two\nhundred fifty-nine-i of this article, and in accordance with the\nprocedures specified in subdivision three of section two hundred\nfifty-nine-i of this article.\n (i) A releasee who is on medical parole and who becomes eligible for\nparole pursuant to the provisions of subdivision two of section two\nhundred fifty-nine-i of this article shall be eligible for parole\nconsideration pursuant to such subdivision.\n 5. A denial of release on medical parole or expiration of medical\nparole in accordance with the provisions of paragraph (f) of subdivision\nfour of this section shall not preclude the incarcerated individual from\nreapplying for medical parole or otherwise affect an incarcerated\nindividual's eligibility for any other form of release provided for by\nlaw.\n 6. To the extent that any provision of this section requires\ndisclosure of medical information for the purpose of processing an\napplication or making a decision, regarding release on medical parole or\nrenewal of medical parole, or for the purpose of appropriately\nsupervising a person released on medical parole, and that such\ndisclosure would otherwise be prohibited by article twenty-seven-F of\nthe public health law, the provisions of this section shall be\ncontrolling.\n 7. The commissioner and the chairman of the board shall be authorized\nto promulgate rules and regulations for their respective agencies to\nimplement the provisions of this section.\n 8. Any decision made by the board pursuant to this section may be\nappealed pursuant to subdivision four of section two hundred\nfifty-nine-i of this article.\n 9. The chairman shall report annually to the governor, the temporary\npresident of the senate and the speaker of the assembly, the\nchairpersons of the assembly and senate codes committees, the\nchairperson of the senate crime and corrections committee, and the\nchairperson of the assembly corrections committee the number of\nincarcerated individuals who have applied for medical parole; the number\nwho have been granted medical parole; the nature of the illness of the\napplicants, the counties to which they have been released and the nature\nof the placement pursuant to the medical discharge plan; the categories\nof reasons for denial for those who have been denied; the number of\nreleasees who have been granted an additional period or periods of\nmedical parole and the number of such grants; the number of releasees on\nmedical parole who have been returned to imprisonment in the custody of\nthe department and the reasons for return.\n 10. Notwithstanding any other provision of law, in the case of an\nincarcerated individual whose terminal condition, disease or syndrome\nmeets the criteria for medical parole as set forth in paragraph (a) of\nsubdivision one of this section, and who is not serving a sentence for\none or more offenses set forth in paragraph (i) of subdivision one of\nsection eight hundred six of the correction law which would render such\nincarcerated individual ineligible for presumptive release, the granting\nof medical parole shall be determined by the commissioner provided that\na release of such incarcerated individual shall be in accordance with\nsubdivision eleven of this section. In such case, the provisions that\nwould have applied to and the procedures that would have been followed\nby the board of parole pursuant to this section shall apply to and be\nfollowed by the commissioner.\n 11. (a) After the commissioner has made a determination to grant\nmedical parole pursuant to subdivision ten of this section, the\ncommissioner shall notify the chairperson of the board of parole, or\ntheir designee who shall be a member of the board of parole, and provide\nhim or her with all relevant records, files, information and\ndocumentation, which includes but is not limited to the criminal\nhistory, medical diagnosis and treatment pertaining to the terminally\nill incarcerated individual no more than five days from the date of the\ndetermination. (b) The chairperson or his or her designee shall either\naccept the commissioner's grant of medical parole, in which case the\nincarcerated individual may be released by the commissioner, or conduct\nfurther review. This decision or review shall be made within five days\nof the receipt of the relevant records, files, information and\ndocumentation from the commissioner. The chairperson's further review\nmay include, but not be limited to, an appearance by the terminally ill\nincarcerated individual before the chairperson or his or her designee.\n(c) After this further review, the chairperson shall either accept the\ncommissioner's grant of medical parole, in which case the incarcerated\nindividual may be released by the commissioner, or the chairperson shall\nschedule an appearance for the terminally ill incarcerated individual\nbefore the board of parole.\n In the event the terminally ill incarcerated individual is scheduled\nto make an appearance before the board of parole pursuant to this\nsubdivision, the matter shall be heard by a panel that does not include\nthe chairperson or any member of the board of parole who was involved in\nthe review of the commissioner's determination.\n