Bill Text: NY A03813 | 2009-2010 | General Assembly | Introduced
Bill Title: An act to amend the executive law, in relation to the release on medical parole of certain inmates
Spectrum: Partisan Bill (Democrat 19-0)
Status: (Introduced - Dead) 2010-01-06 - referred to correction [A03813 Detail]
Download: New_York-2009-A03813-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
3813
2009-2010 Regular Sessions
I N A S S E M B L Y
January 28, 2009
___________
Introduced by M. of A. AUBRY, BENJAMIN, ORTIZ, GREENE, MILLMAN, CLARK,
PERALTA, GOTTFRIED, JEFFRIES, ROBINSON -- Multi-Sponsored by -- M. of
A. BOYLAND, BRADLEY, CAHILL, COOK, JACOBS, KELLNER, MAISEL, McENENY,
REILLY, SCHIMEL -- read once and referred to the Committee on
Correction
AN ACT to amend the executive law, in relation to the release on medical
parole of certain inmates
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Paragraph (a) of subdivision 1 of section 259-r of the
2 executive law, as amended by chapter 3 of the laws of 1995, is amended
3 to read as follows:
4 (a) The board shall have the power to release on medical parole any
5 inmate serving an indeterminate or determinate sentence of imprisonment
6 who, pursuant to subdivision two of this section, (I) has been certified
7 to be suffering from a terminal condition, disease or syndrome and to be
8 so PHYSICALLY OR COGNITIVELY debilitated or incapacitated as to create a
9 reasonable probability that he or she [is physically incapable of
10 presenting] DOES NOT PRESENT any danger to society, OR (II) HAS BEEN
11 CERTIFIED TO BE SUFFERING FROM A SIGNIFICANT AND PERMANENT NON-TERMINAL
12 CONDITION, DISEASE OR SYNDROME THAT HAS RENDERED THE INMATE SO PHYS-
13 ICALLY OR COGNITIVELY DEBILITATED OR INCAPACITATED AS TO CREATE A
14 REASONABLE PROBABILITY THAT HE OR SHE DOES NOT PRESENT ANY DANGER TO
15 SOCIETY; provided, however, that no inmate serving a sentence imposed
16 upon a conviction for any of the following offenses shall be eligible
17 for such release: murder in the first degree, murder in the second
18 degree, manslaughter in the first degree, any offense defined in article
19 one hundred thirty of the penal law or an attempt to commit any of these
20 offenses.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04437-01-9
A. 3813 2
1 S 2. Paragraph (a) of subdivision 1 of section 259-r of the executive
2 law, as added by chapter 55 of the laws of 1992, is amended to read as
3 follows:
4 (a) The board shall have the power to release on medical parole any
5 inmate serving an indeterminate OR DETERMINATE sentence of imprisonment
6 who, pursuant to subdivision two of this section, (I) has been certified
7 to be suffering from a terminal condition, disease or syndrome and to be
8 so PHYSICALLY OR COGNITIVELY debilitated or incapacitated as to create a
9 reasonable probability that he or she [is physically incapable of
10 presenting] DOES NOT PRESENT any danger to society, OR (II) HAS BEEN
11 CERTIFIED TO BE SUFFERING FROM A SIGNIFICANT AND PERMANENT NON-TERMINAL
12 CONDITION, DISEASE OR SYNDROME THAT HAS RENDERED THE INMATE SO PHYS-
13 ICALLY OR COGNITIVELY DEBILITATED OR INCAPACITATED AS TO CREATE A
14 REASONABLE PROBABILITY THAT HE OR SHE DOES NOT PRESENT ANY DANGER TO
15 SOCIETY; provided, however, that no inmate serving a sentence imposed
16 upon a conviction for any of the following offenses shall be eligible
17 for such release: murder in the first degree, murder in the second
18 degree, manslaughter in the first degree, any offense defined in article
19 one hundred thirty of the penal law or an attempt to commit any of these
20 offenses.
21 S 3. Subdivision 2 of section 259-r of the executive law, as amended
22 by chapter 503 of the laws of 1994, is amended to read as follows:
23 2. (a) The commissioner of correctional services, on the commission-
24 er's own initiative or at the request of an inmate, AN INMATE'S SPOUSE,
25 RELATIVE, ATTORNEY OR ADVOCATE OR BY DEPARTMENT OF CORRECTIONAL SERVICES
26 STAFF, may, in the exercise of the commissioner's discretion, direct
27 that a diagnosis be made of an inmate who appears to be suffering from a
28 terminal condition, disease or syndrome OR FROM A SIGNIFICANT AND PERMA-
29 NENT NON-TERMINAL AND INCAPACITATING CONDITION, DISEASE OR SYNDROME.
30 Any such medical diagnosis shall be made by a physician licensed to
31 practice medicine in this state pursuant to section sixty-five hundred
32 twenty-four of the education law. Such physician shall either be
33 employed by the department of correctional services, shall render
34 professional services at the request of the department of correctional
35 services, or shall be employed by a hospital or medical facility used by
36 the department of correctional services for the medical treatment of
37 inmates. The diagnosis shall be reported to the commissioner of correc-
38 tional services and shall include but shall not be limited to a
39 description of the [terminal] condition, disease or syndrome suffered by
40 the inmate, a prognosis concerning the likelihood that the inmate will
41 not recover from such [terminal] condition, disease or syndrome, a
42 description of the inmate's physical OR COGNITIVE incapacity which shall
43 include a prediction respecting the likely duration of the incapacity,
44 and a statement by the physician of whether the inmate is so debilitated
45 or incapacitated as to be severely restricted in his or her ability to
46 self-ambulate [and to care for him or herself] OR TO PERFORM SIGNIFICANT
47 NORMAL ACTIVITIES OF DAILY LIVING.
48 (b) The commissioner, or the commissioner's designee, shall review the
49 diagnosis and may certify that the inmate is suffering from such [termi-
50 nal] condition, disease or syndrome and that the inmate is so PHYSICALLY
51 OR COGNITIVELY debilitated or incapacitated as to create a reasonable
52 probability that he or she is [physically] incapable of presenting any
53 danger to society. If the commissioner does not so certify then the
54 inmate shall not be referred to the board of parole for consideration
55 for release on medical parole. If the commissioner does so certify, then
56 the commissioner shall, WITHIN THREE WORKING DAYS OF RECEIPT OF SUCH
A. 3813 3
1 DIAGNOSIS, refer the inmate to the board of parole for consideration for
2 release on medical parole. However, no such referral of an inmate to the
3 board of parole shall be made unless the inmate has been examined by a
4 physician and diagnosed as having a terminal OR SIGNIFICANT AND PERMA-
5 NENT NON-TERMINAL AND INCAPACITATING condition, disease or syndrome as
6 previously described herein at some time subsequent to such inmate's
7 admission to a facility operated by the department of correctional
8 services.
9 (c) When the commissioner refers an inmate to the board, the commis-
10 sioner shall provide an appropriate medical discharge plan established
11 by the department of correctional services. The board may [reject all or
12 part of the] REVIEW, ALTER AND IMPROVE SUCH discharge plan submitted by
13 the department of correctional services, and may postpone its decision
14 pending [submission of a new] COMPLETION OF AN ADEQUATE discharge plan,
15 or may deny release based on inadequacy of the discharge plan. The
16 department of correctional services and the division of parole ARE
17 AUTHORIZED TO REQUEST ASSISTANCE FROM THE DEPARTMENT OF HEALTH WITH
18 RESPECT TO THE IMPLEMENTATION OF A DISCHARGE PLAN, INCLUDING POTENTIAL
19 PLACEMENTS OF A RELEASEE, AND shall jointly develop standards for the
20 medical discharge plan that are appropriately adapted to the criminal
21 justice setting, based on standards established by the department of
22 health for hospital medical discharge planning.
23 S 4. Subdivision 4 of section 259-r of the executive law, as added by
24 chapter 55 of the laws of 1992 and paragraphs (a) and (d) as amended by
25 chapter 503 of the laws of 1994, is amended to read as follows:
26 4. (a) Medical parole granted pursuant to this section shall be for a
27 period of six months.
28 (b) The board shall require as a condition of release on medical
29 parole that the releasee agree to remain under the care of a physician
30 while on medical parole and in a hospital established pursuant to arti-
31 cle twenty-eight of the public health law, a hospice established pursu-
32 ant to article forty of the public health law or any other placement
33 that can provide appropriate medical care as specified in the medical
34 discharge plan required by subdivision two of this section. The medical
35 discharge plan shall state that the availability of the placement has
36 been confirmed, and by whom.
37 (c) The board shall require as a condition of release that medical
38 parolees be supervised on [intensive] caseloads [at reduced supervision
39 ratios similar to the caseloads for parolees released pursuant to the
40 shock incarceration program established by article twenty-six-A of the
41 correction law] AS IS APPROPRIATE FOR THE MAINTENANCE OF PUBLIC SAFETY.
42 (d) The board shall require as a condition of release on medical
43 parole that the releasee undergo periodic medical examinations and a
44 medical examination at least one month prior to the expiration of the
45 period of medical parole and, for the purposes of making a decision
46 pursuant to paragraph (e) of this subdivision, that the releasee provide
47 the board with a report, prepared by the treating physician, of the
48 results of such examination. Such report shall specifically state wheth-
49 er or not the parolee continues to suffer from a terminal OR SIGNIFICANT
50 AND PERMANENT NON-TERMINAL AND INCAPACITATING condition, disease, or
51 syndrome, and to be so debilitated or incapacitated as to be severely
52 restricted in his or her ability to self-ambulate [and to care for him
53 or herself] OR TO PERFORM SIGNIFICANT NORMAL ACTIVITIES OF DAILY LIVING.
54 (e) Prior to the expiration of the period of medical parole the board
55 shall review the medical examination report required by paragraph (d) of
56 this subdivision and may again grant medical parole pursuant to this
A. 3813 4
1 section; provided, however, that the provisions of paragraph (c) of
2 subdivision one and subdivision two of this section shall not apply.
3 (f) If the updated medical report presented to the board states that a
4 parolee released pursuant to this section is no longer so PHYSICALLY OR
5 COGNITIVELY debilitated or incapacitated as to create a reasonable prob-
6 ability that he or she is [physically] incapable of presenting any
7 danger to society or if the releasee fails to submit the updated medical
8 report then the board may not make a new grant of medical parole pursu-
9 ant to paragraph (e) of this subdivision. Where the board has not grant-
10 ed medical parole pursuant to such paragraph (e) the board shall prompt-
11 ly conduct through one of its members, or cause to be conducted by a
12 hearing officer designated by the board, a hearing to determine whether
13 the releasee is suffering from a terminal OR SIGNIFICANT AND PERMANENT
14 NON-TERMINAL AND INCAPACITATING condition, disease or syndrome and is so
15 PHYSICALLY OR COGNITIVELY debilitated or incapacitated as to create a
16 reasonable probability that he or she [is physically incapable of
17 presenting] DOES NOT PRESENT any danger to society [and does not present
18 a danger to society]. If the board makes such a determination then it
19 may make a new grant of medical parole pursuant to the standards of
20 paragraph (b) of subdivision one of this section. At the hearing, the
21 releasee shall have the right to representation by counsel, including
22 the right, if the releasee is financially unable to retain counsel, to
23 have the appropriate court assign counsel in accordance with the county
24 or city plan for representation placed in operation pursuant to article
25 eighteen-B of the county law.
26 (g) The hearing and determination provided for by paragraph (f) of
27 this subdivision shall be concluded within the [four] SIX month period
28 of medical parole. If the board does not renew the grant of medical
29 parole, it shall order that the releasee be returned immediately to the
30 custody of the department of correctional services.
31 (h) In addition to the procedures set forth in paragraph (f) of this
32 subdivision, medical parole may be revoked at any time upon any of the
33 grounds specified in paragraph (a) of subdivision three of section two
34 hundred fifty-nine-i of this article, and in accordance with the proce-
35 dures specified in subdivision three of section two hundred fifty-nine-i
36 of this article.
37 (i) A releasee who is on medical parole and who becomes eligible for
38 parole pursuant to the provisions of subdivision two of section two
39 hundred fifty-nine-i of this article shall be eligible for parole
40 consideration pursuant to such subdivision.
41 S 5. This act shall take effect immediately, provided that the amend-
42 ments to paragraph (a) of subdivision 1 of section 259-r of the execu-
43 tive law made by section one of this act shall be subject to the expira-
44 tion and reversion of such subdivision pursuant to subdivision d of
45 section 74 of chapter 3 of the laws of 1995, as amended, when upon such
46 date the provisions of section two of this act shall take effect; and
47 provided further that the amendments to section 259-r of the executive
48 law made by sections two, three and four of this act shall not affect
49 the expiration of such section and shall be deemed to expire therewith.
