§ 259-S — Release on medical parole for incarcerated individuals suffering significant debilitating illnesses

§ 259-s. Release on medical parole for incarcerated individuals\nsuffering significant debilitating illnesses. 1. (a) The board shall\nhave the power to release on medical parole any incarcerated individual\nserving an indeterminate or determinate sentence of imprisonment who,\npursuant to subdivision two of this section, has been certified to be\nsuffering from a significant and permanent non-terminal condition,\ndisease or syndrome that has rendered the incarcerated individual so\nphysically or cognitively debilitated or incapacitated as to create a\nreasonable probability that he or she does not present any danger to\nsociety, provided, however, that no incarcerated individual serving a\nsentence imposed upon a conviction for murder in the first degree or an\nattempt or conspiracy to commit murder in the first degree shall be\neligible for such release, and provided further that no incarcerated\nindividual serving a sentence imposed upon a conviction for any of the\nfollowing offenses shall be eligible for such release unless in the case\nof an indeterminate sentence he or she has served at least one-half of\nthe minimum period of the sentence and in the case of a determinate\nsentence he or she has served at least one-half of the term of his or\nher determinate sentence: murder in the second degree, manslaughter in\nthe first degree, any offense defined in article one hundred thirty of\nthe penal law or an attempt to commit any of these offenses. Solely for\nthe purpose of determining medical parole eligibility pursuant to this\nsection, such one-half of the minimum period of the indeterminate\nsentence and one-half of the term of the determinate sentence shall not\nbe credited with any time served under the jurisdiction of the\ndepartment prior to the commencement of such sentence pursuant to the\nopening paragraph of subdivision one of section 70.30 of the penal law\nor subdivision two-a of section 70.30 of the penal law, except to the\nextent authorized by subdivision three of section 70.30 of the penal\nlaw.\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. In making this\ndetermination, the board shall consider: (i) the nature and seriousness\nof the incarcerated individual's crime; (ii) the incarcerated\nindividual's prior criminal record; (iii) the incarcerated individual's\ndisciplinary, behavioral and rehabilitative record during the term of\nhis or her incarceration; (iv) the amount of time the incarcerated\nindividual must serve before becoming eligible for release pursuant to\nsection two hundred fifty-nine-i of this article; (v) the current age of\nthe incarcerated individual and his or her age at the time of the crime;\n(vi) the recommendations of the sentencing court, the district attorney\nand the victim or the victim's representative; (vii) the nature of the\nincarcerated individual's medical condition, disease or syndrome and the\nextent of medical treatment or care that the incarcerated individual\nwill require as a result of that condition, disease or syndrome; and\n(viii) any other relevant factor. Except as set forth in paragraph (a)\nof this subdivision, such release may be granted at any time during the\nterm of an incarcerated individual's sentence, notwithstanding any other\nprovision of law.\n (c) The board shall afford notice to the sentencing court, the\ndistrict attorney, the attorney for the incarcerated individual and,\nwhere necessary pursuant to subdivision two of section two hundred\nfifty-nine-i of this article, the crime victim, that the incarcerated\nindividual is being considered for release pursuant to this section and\nthe parties receiving notice shall have thirty days to comment on the\nrelease of the incarcerated individual. Release on medical parole shall\nnot be granted until the expiration of the comment period provided for\nin 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 significant and permanent\nnon-terminal and incapacitating condition, disease or syndrome. Any such\nmedical diagnosis shall be made by a physician licensed to practice\nmedicine in this state pursuant to section sixty-five hundred\ntwenty-four of the education law. Such physician shall either be\nemployed by the department, shall render professional services at the\nrequest of the department, or shall be employed by a hospital or medical\nfacility used by the department for the medical treatment of\nincarcerated individuals. The diagnosis shall be reported to the\ncommissioner and shall include but shall not be limited to a description\nof the condition, disease or syndrome suffered by the incarcerated\nindividual, a prognosis concerning the likelihood that the incarcerated\nindividual will not recover from such condition, disease or syndrome, a\ndescription of the incarcerated individual's physical or cognitive\nincapacity which shall include a prediction respecting the likely\nduration of the incapacity, and a statement by the physician of whether\nthe incarcerated individual is so debilitated or incapacitated as to be\nseverely restricted in his or her ability to self-ambulate or to perform\nsignificant normal activities of daily living. This report also shall\ninclude a recommendation of the type and level of services and treatment\nthe incarcerated individual would require if granted medical parole and\na recommendation 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 condition, disease or syndrome and that the incarcerated\nindividual is so debilitated or incapacitated as to create a reasonable\nprobability that he or she is physically or cognitively incapable of\npresenting any danger to society. If the commissioner does not so\ncertify then the incarcerated individual shall not be referred to the\nboard 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 of\nparole shall be made unless the incarcerated individual has been\nexamined by a physician and diagnosed as having a 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.\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, including a residence with family or others, that can provide\nappropriate medical care as specified in the medical discharge plan\nrequired by subdivision two of this section. The medical discharge plan\nshall state that the availability of the placement has been confirmed,\nand by whom. Notwithstanding any other provision of law, when an\nincarcerated individual who qualifies for release under this section is\ncognitively incapable of signing the requisite documentation to\neffectuate the medical discharge plan and, after a diligent search no\nperson has been identified who could otherwise be appointed as the\nincarcerated individual's guardian by a court of competent jurisdiction,\nthen, solely for the purpose of implementing the medical discharge plan,\nthe facility health services director at the facility where the\nincarcerated individual is currently incarcerated shall be lawfully\nempowered to act as the incarcerated individual's guardian for the\npurpose of effectuating the medical discharge.\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 significant and\npermanent non-terminal and debilitating condition, disease, or syndrome,\nand to be so debilitated or incapacitated as to be severely restricted\nin his or her ability to self-ambulate or to perform significant normal\nactivities of daily living.\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 significant and permanent non-terminal and\nincapacitating condition, disease or syndrome and is 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\nand does not present a danger to society. If the board makes such a\ndetermination then it may make a new grant of medical parole pursuant to\nthe standards of paragraph (b) of subdivision one of this section. At\nthe hearing, the releasee shall have the right to representation by\ncounsel, including the right, if the releasee is financially unable to\nretain counsel, to have the appropriate court assign counsel in\naccordance with the county or city plan for representation placed in\noperation pursuant to article eighteen-B of the county 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 of correctional services.\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 chair of the board shall be authorized to\npromulgate 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 chair of the board shall report annually to the governor, the\ntemporary president 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 under this\nsection; the number who have been granted medical parole; the nature of\nthe illness of the applicants, the counties to which they have been\nreleased and the nature of the placement pursuant to the medical\ndischarge plan; the categories of reasons for denial for those who have\nbeen denied; the number of releasees who have been granted an additional\nperiod or periods of medical parole and the number of such grants; the\nnumber of releasees on medical parole who have been returned to\nimprisonment in the custody of the department and the reasons for\nreturn.\n