Bill Text: NY A07190 | 2023-2024 | General Assembly | Introduced

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Bill Title: Relates to medical parole and determinations of whether a person released on medical parole is physically or cognitively incapable of presenting a danger to society.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2024-01-03 - referred to correction [A07190 Detail]

Download: New_York-2023-A07190-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          7190

                               2023-2024 Regular Sessions

                   IN ASSEMBLY

                                      May 12, 2023
                                       ___________

        Introduced  by M. of A. DILAN -- read once and referred to the Committee
          on Correction

        AN ACT to amend the executive law, in relation to medical parole

          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 section 14 of chapter 322 of  the  laws  of
     3  2021, is amended to read as follows:
     4    (a)  The  board  shall have the power to release on medical parole any
     5  incarcerated individual serving an indeterminate or determinate sentence
     6  of imprisonment who, pursuant to subdivision two of  this  section,  has
     7  been  certified  to  be  suffering from a terminal condition, disease or
     8  syndrome and to be so  debilitated  or  incapacitated  as  to  create  a
     9  reasonable probability that he or she is physically or cognitively inca-
    10  pable  of  presenting [any] a danger to society, provided, however, that
    11  no incarcerated individual serving a sentence imposed upon a  conviction
    12  for  murder  in  the  first degree or an attempt or conspiracy to commit
    13  murder in the first degree shall  be  eligible  for  such  release,  and
    14  provided  further  that  no  incarcerated  individual serving a sentence
    15  imposed upon a conviction for any of the  following  offenses  shall  be
    16  eligible  for  such  release  unless  in  the  case  of an indeterminate
    17  sentence he or she has served at least one-half of the minimum period of
    18  the sentence and in the case of a determinate sentence  he  or  she  has
    19  served at least one-half of the term of his or her determinate sentence:
    20  murder  in  the  second  degree,  manslaughter  in the first degree, any
    21  offense defined in article one hundred thirty of the  penal  law  or  an
    22  attempt  to  commit  any  of  these  offenses. Solely for the purpose of
    23  determining medical parole eligibility pursuant to  this  section,  such
    24  one-half  of  the  minimum period of the indeterminate sentence and one-
    25  half of the term of the determinate sentence shall not be credited  with
    26  any  time  served  under the jurisdiction of the department prior to the

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00263-01-3
        A. 7190                             2

     1  commencement of such sentence  pursuant  to  the  opening  paragraph  of
     2  subdivision  one  of section 70.30 of the penal law or subdivision two-a
     3  of section 70.30 of the penal law, except to the  extent  authorized  by
     4  subdivision three of section 70.30 of the penal law.
     5    §  2. Paragraph (a) of subdivision 1 of section 259-r of the executive
     6  law, as amended by section 14-a of chapter 322 of the laws of  2021,  is
     7  amended to read as follows:
     8    (a)  The  board  shall have the power to release on medical parole any
     9  incarcerated individual serving an indeterminate or determinate sentence
    10  of imprisonment who, pursuant to subdivision two of  this  section,  has
    11  been  certified  to  be  suffering from a terminal condition, disease or
    12  syndrome and to be so  debilitated  or  incapacitated  as  to  create  a
    13  reasonable probability that he or she is physically or cognitively inca-
    14  pable  of  presenting [any] a danger to society, provided, however, that
    15  no incarcerated individual serving a sentence imposed upon a  conviction
    16  for  murder  in  the  first degree or an attempt or conspiracy to commit
    17  murder in the first degree shall  be  eligible  for  such  release,  and
    18  provided  further  that  no  incarcerated  individual serving a sentence
    19  imposed upon a conviction for any of the  following  offenses  shall  be
    20  eligible  for  such  release  unless  in  the  case  of an indeterminate
    21  sentence he or she has served at least one-half of the minimum period of
    22  the sentence and in the case of a determinate sentence  he  or  she  has
    23  served at least one-half of the term of his or her determinate sentence:
    24  murder  in  the  second  degree,  manslaughter  in the first degree, any
    25  offense defined in article one hundred thirty of the  penal  law  or  an
    26  attempt  to  commit  any  of  these  offenses. Solely for the purpose of
    27  determining medical parole eligibility pursuant to  this  section,  such
    28  one-half  of  the  minimum period of the indeterminate sentence and one-
    29  half of the term of the determinate sentence shall not be credited  with
    30  any  time  served  under the jurisdiction of the department prior to the
    31  commencement of such sentence  pursuant  to  the  opening  paragraph  of
    32  subdivision  one  of section 70.30 of the penal law or subdivision two-a
    33  of section 70.30 of the penal law, except to the  extent  authorized  by
    34  subdivision three of section 70.30 of the penal law.
    35    §  3. Paragraph (b) of subdivision 2 of section 259-r of the executive
    36  law, as amended by chapter 322 of the laws of 2021, is amended  to  read
    37  as follows:
    38    (b) The commissioner, or the commissioner's designee, shall review the
    39  diagnosis  and may certify that the incarcerated individual is suffering
    40  from such terminal condition, disease or syndrome and that the incarcer-
    41  ated individual is so debilitated  or  incapacitated  as  to  [create  a
    42  reasonable probability that he or she is physically or cognitively inca-
    43  pable of presenting any danger to society] be severely restricted in his
    44  or  her ability to self-ambulate or to perform significant normal activ-
    45  ities of daily living. If the commissioner does not so certify then  the
    46  incarcerated individual shall not be referred to the board for consider-
    47  ation  for release on medical parole. If the commissioner does so certi-
    48  fy, then the commissioner shall, within seven working days of receipt of
    49  such diagnosis, refer the  incarcerated  individual  to  the  board  for
    50  consideration  for release on medical parole.  However, no such referral
    51  of an incarcerated individual to the board  shall  be  made  unless  the
    52  incarcerated  individual  has been examined by a physician and diagnosed
    53  as having a  terminal  condition,  disease  or  syndrome  as  previously
    54  described  herein  at some time subsequent to such incarcerated individ-
    55  ual's admission to a facility operated by the department of [correction-
    56  al services] corrections and community supervision.
        A. 7190                             3

     1    § 4. Subdivision 4 of section 259-r of the executive law,  as  amended
     2  by  section  38-l  of  subpart  A of part C of chapter 62 of the laws of
     3  2011, paragraph (b) as amended by chapter 322 of the laws  of  2021,  is
     4  amended to read as follows:
     5    4. (a) The board shall, upon receipt of certification from the commis-
     6  sioner,  independently  determine whether the conditions under which the
     7  incarcerated individual would be released creates a reasonable probabil-
     8  ity that he or she is physically or cognitively incapable of  presenting
     9  a  danger to society. The board shall provide a determination of release
    10  within thirty days upon receipt of certification from the commissioner.
    11    (b) Medical parole granted pursuant to this section  shall  be  for  a
    12  period of six months.
    13    [(b)] (c) The board shall require as a condition of release on medical
    14  parole  that  the releasee agree to remain under the care of a physician
    15  while on medical parole and in a hospital established pursuant to  arti-
    16  cle  twenty-eight of the public health law, a hospice established pursu-
    17  ant to article forty of the public health law  or  any  other  placement
    18  that  can  provide  appropriate medical care as specified in the medical
    19  discharge plan required by subdivision two of this section. The  medical
    20  discharge  plan  shall  state that the availability of the placement has
    21  been confirmed, and by whom. Notwithstanding any other provision of law,
    22  when an incarcerated individual who qualifies  for  release  under  this
    23  section  is cognitively incapable of signing the requisite documentation
    24  to effectuate the medical discharge plan and, after a diligent search no
    25  person has been identified who  could  otherwise  be  appointed  as  the
    26  incarcerated individual's guardian by a court of competent jurisdiction,
    27  then, solely for the purpose of implementing the medical discharge plan,
    28  the  facility  health services director at the facility where the incar-
    29  cerated individual is currently incarcerated shall be lawfully empowered
    30  to act as the incarcerated individual's  guardian  for  the  purpose  of
    31  effectuating the medical discharge.
    32    [(c)] (d) Where appropriate, the board shall require as a condition of
    33  release  that  medical  parolees be supervised on intensive caseloads at
    34  reduced supervision ratios.
    35    [(d)] (e) The board shall require as a condition of release on medical
    36  parole that the releasee undergo periodic  medical  examinations  and  a
    37  medical  examination  at  least one month prior to the expiration of the
    38  period of medical parole and, for the  purposes  of  making  a  decision
    39  pursuant  to  paragraph [(e)] (f) of this subdivision, that the releasee
    40  provide the board with a report, prepared by the treating physician,  of
    41  the  results  of  such examination. Such report shall specifically state
    42  whether or not the parolee continues to suffer from  a  terminal  condi-
    43  tion, disease, or syndrome, and to be so debilitated or incapacitated as
    44  to  be  severely restricted in his or her ability to self-ambulate or to
    45  perform significant normal activities of daily living.
    46    [(e)] (f) Prior to the expiration of the period of medical parole  the
    47  board  shall review the medical examination report required by paragraph
    48  [(d)] (e) of this subdivision and may again grant medical parole  pursu-
    49  ant to this section; provided, however, that the provisions of paragraph
    50  (c)  of  subdivision  one  and subdivision two of this section shall not
    51  apply.
    52    [(f)] (g) If the updated medical report presented to the board  states
    53  that a parolee released pursuant to this section is no longer so debili-
    54  tated  or incapacitated as to create a reasonable probability that he or
    55  she is physically or cognitively incapable of presenting [any] a  danger
    56  to society or if the releasee fails to submit the updated medical report
        A. 7190                             4

     1  then  the  board  may not make a new grant of medical parole pursuant to
     2  paragraph [(e)] (f) of this subdivision. Where the board has not granted
     3  medical parole pursuant to such paragraph  [(e)]  (f)  the  board  shall
     4  promptly conduct through one of its members, or cause to be conducted by
     5  a hearing officer designated by the board, a hearing to determine wheth-
     6  er  the  releasee  is  suffering  from  a terminal condition, disease or
     7  syndrome and is so debilitated or incapacitated as to create  a  reason-
     8  able  probability  that he or she is physically or cognitively incapable
     9  of presenting [any danger to society and does not present] a  danger  to
    10  society.  If the board makes such a determination then it may make a new
    11  grant of medical parole pursuant to the standards of  paragraph  (b)  of
    12  subdivision one of this section. At the hearing, the releasee shall have
    13  the  right  to  representation  by  counsel, including the right, if the
    14  releasee is financially unable to retain counsel, to have the  appropri-
    15  ate  court assign counsel in accordance with the county or city plan for
    16  representation placed in operation pursuant to article eighteen-B of the
    17  county law.
    18    [(g)] (h) The hearing and  determination  provided  for  by  paragraph
    19  [(f)]  (g)  of  this subdivision shall be concluded within the six month
    20  period of medical parole. If the board  does  not  renew  the  grant  of
    21  medical parole, it shall order that the releasee be returned immediately
    22  to the custody of the department.
    23    [(h)]  (i)  In addition to the procedures set forth in paragraph [(f)]
    24  (g) of this subdivision, medical parole may be revoked at any time  upon
    25  any  of  the  grounds specified in paragraph (a) of subdivision three of
    26  section two hundred fifty-nine-i of this article, and in accordance with
    27  the procedures specified in subdivision three  of  section  two  hundred
    28  fifty-nine-i of this article.
    29    [(i)] (j) A releasee who is on medical parole and who becomes eligible
    30  for  parole pursuant to the provisions of subdivision two of section two
    31  hundred fifty-nine-i of  this  article  shall  be  eligible  for  parole
    32  consideration pursuant to such subdivision.
    33    §  5. Paragraph (a) of subdivision 1 of section 259-s of the executive
    34  law, as amended by chapter 322 of the laws of 2021, is amended  to  read
    35  as follows:
    36    (a)  The  board  shall have the power to release on medical parole any
    37  incarcerated individual serving an indeterminate or determinate sentence
    38  of imprisonment who, pursuant to subdivision two of  this  section,  has
    39  been certified to be suffering from a significant and permanent non-ter-
    40  minal  condition, disease or syndrome that has rendered the incarcerated
    41  individual so physically or cognitively debilitated or incapacitated  as
    42  to create a reasonable probability that he or she does not present [any]
    43  a  danger to society, provided, however, that no incarcerated individual
    44  serving a sentence imposed upon a conviction for  murder  in  the  first
    45  degree  or an attempt or conspiracy to commit murder in the first degree
    46  shall be eligible for such release, and provided further that no  incar-
    47  cerated  individual serving a sentence imposed upon a conviction for any
    48  of the following offenses shall be eligible for such release  unless  in
    49  the  case  of  an  indeterminate  sentence he or she has served at least
    50  one-half of the minimum period of the sentence and  in  the  case  of  a
    51  determinate  sentence he or she has served at least one-half of the term
    52  of his or  her  determinate  sentence:  murder  in  the  second  degree,
    53  manslaughter  in  the  first  degree, any offense defined in article one
    54  hundred thirty of the penal law or an attempt to  commit  any  of  these
    55  offenses. Solely for the purpose of determining medical parole eligibil-
    56  ity pursuant to this section, such one-half of the minimum period of the
        A. 7190                             5

     1  indeterminate  sentence  and  one-half  of  the  term of the determinate
     2  sentence shall not be credited with any time served under the  jurisdic-
     3  tion of the department prior to the commencement of such sentence pursu-
     4  ant  to the opening paragraph of subdivision one of section 70.30 of the
     5  penal law or subdivision two-a of section 70.30 of the penal law, except
     6  to the extent authorized by subdivision three of section  70.30  of  the
     7  penal law.
     8    §  6. Paragraph (b) of subdivision 2 of section 259-s of the executive
     9  law, as amended by chapter 322 of the laws of 2021, is amended  to  read
    10  as follows:
    11    (b) The commissioner, or the commissioner's designee, shall review the
    12  diagnosis  and may certify that the incarcerated individual is suffering
    13  from such condition, disease or syndrome and that the incarcerated indi-
    14  vidual is so debilitated or incapacitated as  to  [create  a  reasonable
    15  probability  that  he  or  she is physically or cognitively incapable of
    16  presenting any danger to society] be severely restricted in his  or  her
    17  ability  to self-ambulate or to perform significant normal activities of
    18  daily living. If the commissioner does not so certify then the incarcer-
    19  ated individual shall not be referred to the board for consideration for
    20  release on medical parole. If the commissioner does so certify, then the
    21  commissioner shall, within seven working days of receipt of such diagno-
    22  sis, refer the incarcerated individual to the  board  for  consideration
    23  for  release  on medical parole.  However, no such referral of an incar-
    24  cerated individual to the board of  parole  shall  be  made  unless  the
    25  incarcerated  individual  has been examined by a physician and diagnosed
    26  as having a condition, disease or syndrome as previously described here-
    27  in at some time subsequent to such incarcerated  individual's  admission
    28  to a facility operated by the department.
    29    §  7.  Subdivision 4 of section 259-s of the executive law, as amended
    30  by chapter 322 of the laws of 2021, is amended to read as follows:
    31    4. (a) The board shall, upon receipt of certification from the commis-
    32  sioner, independently determine whether the conditions under  which  the
    33  incarcerated individual would be released creates a reasonable probabil-
    34  ity  that he or she is physically or cognitively incapable of presenting
    35  a danger to society. The board shall provide a determination of  release
    36  within thirty days upon receipt of certification from the commissioner.
    37    (b)  Medical  parole  granted  pursuant to this section shall be for a
    38  period of six months.
    39    [(b)] (c) The board shall require as a condition of release on medical
    40  parole that the releasee agree to remain under the care of  a  physician
    41  while  on medical parole and in a hospital established pursuant to arti-
    42  cle twenty-eight of the public health law, a hospice established  pursu-
    43  ant  to  article  forty of the public health law or any other placement,
    44  including a residence with family or others, that can provide  appropri-
    45  ate  medical care as specified in the medical discharge plan required by
    46  subdivision two of this section. The medical discharge plan shall  state
    47  that  the availability of the placement has been confirmed, and by whom.
    48  Notwithstanding any other provision of law, when an  incarcerated  indi-
    49  vidual who qualifies for release under this section is cognitively inca-
    50  pable  of  signing the requisite documentation to effectuate the medical
    51  discharge plan and, after a diligent search no person has  been  identi-
    52  fied  who  could otherwise be appointed as the incarcerated individual's
    53  guardian by a court of competent  jurisdiction,  then,  solely  for  the
    54  purpose  of implementing the medical discharge plan, the facility health
    55  services director at the facility where the incarcerated  individual  is
    56  currently  incarcerated shall be lawfully empowered to act as the incar-
        A. 7190                             6

     1  cerated individual's  guardian  for  the  purpose  of  effectuating  the
     2  medical discharge.
     3    [(c)] (d) Where appropriate, the board shall require as a condition of
     4  release  that  medical  parolees be supervised on intensive caseloads at
     5  reduced supervision ratios.
     6    [(d)] (e) The board shall require as a condition of release on medical
     7  parole that the releasee undergo periodic  medical  examinations  and  a
     8  medical  examination  at  least one month prior to the expiration of the
     9  period of medical parole and, for the  purposes  of  making  a  decision
    10  pursuant  to  paragraph [(e)] (f) of this subdivision, that the releasee
    11  provide the board with a report, prepared by the treating physician,  of
    12  the  results  of  such examination. Such report shall specifically state
    13  whether or not the parolee continues to suffer from  a  significant  and
    14  permanent non-terminal and debilitating condition, disease, or syndrome,
    15  and  to  be so debilitated or incapacitated as to be severely restricted
    16  in his or her ability to self-ambulate or to perform significant  normal
    17  activities of daily living.
    18    [(e)]  (f) Prior to the expiration of the period of medical parole the
    19  board shall review the medical examination report required by  paragraph
    20  [(d)]  (e) of this subdivision and may again grant medical parole pursu-
    21  ant to this section; provided, however, that the provisions of paragraph
    22  (c) of subdivision one and subdivision two of  this  section  shall  not
    23  apply.
    24    [(f)]  (g) If the updated medical report presented to the board states
    25  that a parolee released pursuant to this section is no longer so debili-
    26  tated or incapacitated as to create a reasonable probability that he  or
    27  she  is physically or cognitively incapable of presenting [any] a danger
    28  to society or if the releasee fails to submit the updated medical report
    29  then the board may not make a new grant of medical  parole  pursuant  to
    30  paragraph [(e)] (f) of this subdivision. Where the board has not granted
    31  medical  parole  pursuant to [such] paragraph [(e)] (f) of this subdivi-
    32  sion the board shall promptly conduct through one  of  its  members,  or
    33  cause  to  be  conducted by a hearing officer designated by the board, a
    34  hearing to determine whether the releasee is suffering  from  a  signif-
    35  icant  and  permanent non-terminal and incapacitating condition, disease
    36  or syndrome and is so  debilitated  or  incapacitated  as  to  create  a
    37  reasonable probability that he or she is physically or cognitively inca-
    38  pable  of  presenting  [any  danger  to  society and does not present] a
    39  danger to society. If the board makes such a determination then  it  may
    40  make  a  new  grant of medical parole pursuant to the standards of para-
    41  graph (b) of subdivision one  of  this  section.  At  the  hearing,  the
    42  releasee  shall  have  the right to representation by counsel, including
    43  the right, if the releasee is financially unable to retain  counsel,  to
    44  have  the appropriate court assign counsel in accordance with the county
    45  or city plan for representation placed in operation pursuant to  article
    46  eighteen-B of the county law.
    47    [(g)]  (h)  The  hearing  and  determination provided for by paragraph
    48  [(f)] (g) of this subdivision shall be concluded within  the  six  month
    49  period  of  medical  parole.  If  the  board does not renew the grant of
    50  medical parole, it shall order that the releasee be returned immediately
    51  to the custody of the department of correctional services.
    52    [(h)] (i) In addition to the procedures set forth in  paragraph  [(f)]
    53  (g)  of this subdivision, medical parole may be revoked at any time upon
    54  any of the grounds specified in paragraph (a) of  subdivision  three  of
    55  section two hundred fifty-nine-i of this article, and in accordance with
        A. 7190                             7

     1  the  procedures  specified  in  subdivision three of section two hundred
     2  fifty-nine-i of this article.
     3    [(i)] (j) A releasee who is on medical parole and who becomes eligible
     4  for  parole pursuant to the provisions of subdivision two of section two
     5  hundred fifty-nine-i of  this  article  shall  be  eligible  for  parole
     6  consideration pursuant to such subdivision.
     7    §  8.  This act shall take effect immediately; provided, however, that
     8  the amendments to paragraph (a) of subdivision 1 of section 259-r of the
     9  executive law made by section one of this act shall be  subject  to  the
    10  expiration  and reversion of such paragraph pursuant to subdivision d of
    11  section 74 of chapter 3 of the laws of 1995, as amended, when upon  such
    12  date the provisions of section two of this act shall take effect.