STATE OF NEW YORK
________________________________________________________________________
10343
IN ASSEMBLY
April 12, 2018
___________
Introduced by M. of A. WEPRIN -- (at request of the Board of Parole) --
read once and referred to the Committee on Correction
AN ACT to amend the executive law, in relation to improving the medical
parole certification and consideration process
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. Section 259-r of the executive law, as amended by section
2 38-1 of subpart A of part C of chapter 62 of the laws of 2011, subdivi-
3 sions 10 and 11 as added by section 1 of part A of chapter 55 of the
4 laws of 2015, is amended to read as follows:
5 § 259-r. Release on medical parole for terminally ill inmates. 1. (a)
6 The board shall have the power to release on medical parole any inmate
7 serving an indeterminate or determinate sentence of imprisonment who,
8 pursuant to subdivision two of this section, has been certified to be
9 suffering from a terminal condition, disease or syndrome [and to be so
10 debilitated or incapacitated as to create a reasonable probability that
11 he or she is physically or cognitively incapable of presenting any
12 danger to society], provided, however, that no inmate serving a sentence
13 imposed upon a conviction for murder in the first degree, aggravated
14 murder or an attempt or conspiracy to commit murder in the first degree
15 or aggravated murder or a sentence of life without parole shall be
16 eligible for such release, and provided further that no inmate serving a
17 sentence imposed upon a conviction for any of the following offenses
18 shall be eligible for such release unless in the case of an indetermi-
19 nate sentence he or she has served at least one-half of the minimum
20 period of the sentence and in the case of a determinate sentence he or
21 she has served at least one-half of the term of his or her determinate
22 sentence: murder in the second degree, manslaughter in the first
23 degree, any offense defined in article one hundred thirty of the penal
24 law or an attempt to commit any of these offenses. Solely for the
25 purpose of determining medical parole eligibility pursuant to this
26 section, such one-half of the minimum period of the indeterminate
27 sentence and one-half of the term of the determinate sentence shall not
28 be credited with any time served under the jurisdiction of the depart-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14397-01-8
A. 10343 2
1 ment prior to the commencement of such sentence pursuant to the opening
2 paragraph of subdivision one of section 70.30 of the penal law or subdi-
3 vision two-a of section 70.30 of the penal law, except to the extent
4 authorized by subdivision three of section 70.30 of the penal law.
5 (b) Such release shall be granted only after the board considers
6 whether, in light of the inmate's medical condition, there is a reason-
7 able probability that the inmate, if released, will live and remain at
8 liberty without violating the law, and that such release is not incom-
9 patible with the welfare of society and will not so deprecate the seri-
10 ousness of the crime as to undermine respect for the law, and shall be
11 subject to the limits and conditions specified in subdivision four of
12 this section. In making this determination, the board shall consider:
13 (i) the factors described in subdivision two of section two hundred
14 fifty-nine-i of this article; (ii) the nature of the inmate's medical
15 condition, disease or syndrome and the extent of medical treatment or
16 care that the inmate will require as a result of that condition, disease
17 or syndrome; (iii) the amount of time the inmate must serve before
18 becoming eligible for release pursuant to section two hundred fifty-
19 nine-i of this article; (iv) the current age of the inmate and his or
20 her age at the time of the crime; and (v) any other relevant factor.
21 Except as set forth in paragraph (a) of this subdivision, such release
22 may be granted at any time during the term of an inmate's sentence,
23 notwithstanding any other provision of law.
24 (c) The board shall afford notice to the sentencing court, the
25 district attorney [and], the attorney for the inmate and, where neces-
26 sary pursuant to subdivision two of section two hundred fifty-nine-i of
27 this article, the crime victim, that the inmate is being considered for
28 release pursuant to this section and the parties receiving notice shall
29 have fifteen days to comment on the release of the inmate. Release on
30 medical parole shall not be granted until the expiration of the comment
31 period provided for in this paragraph.
32 2. (a) The commissioner, on the commissioner's own initiative or at
33 the request of an inmate, or an inmate's spouse, relative or attorney,
34 may, in the exercise of the commissioner's discretion, direct that an
35 investigation be undertaken to determine whether a diagnosis should be
36 made of an inmate who appears to be suffering from a terminal condition,
37 disease or syndrome. Any such medical diagnosis shall be made by a
38 physician licensed to practice medicine in this state pursuant to
39 section sixty-five hundred twenty-four of the education law. Such physi-
40 cian shall either be employed by the department, shall render profes-
41 sional services at the request of the department, or shall be employed
42 by a hospital or medical facility used by the department for the medical
43 treatment of inmates. The diagnosis shall be reported to the commission-
44 er and shall include but shall not be limited to a description of the
45 terminal condition, disease or syndrome suffered by the inmate, a prog-
46 nosis concerning the likelihood that the inmate will not recover from
47 such terminal condition, disease or syndrome, a description of the
48 inmate's physical or cognitive incapacity which shall include a predic-
49 tion respecting the likely duration of the incapacity, and a statement
50 by the physician of whether the inmate is so debilitated or incapaci-
51 tated as to be severely restricted in his or her ability to self-ambu-
52 late or to perform significant normal activities of daily living. This
53 report also shall include a recommendation of the type and level of
54 services and treatment the inmate would require if granted medical
55 parole and a recommendation for the types of settings in which the
56 services and treatment should be given.
A. 10343 3
1 (b) The commissioner, or the commissioner's designee, shall review the
2 diagnosis and may certify that the inmate is suffering from such termi-
3 nal condition, disease or syndrome [and that the inmate is so debili-
4 tated or incapacitated as to create a reasonable probability that he or
5 she is physically or cognitively incapable of presenting any danger to
6 society]. If the commissioner does not so certify then the inmate shall
7 not be referred to the board for consideration for release on medical
8 parole. If the commissioner does so certify, then the commissioner
9 shall, within seven working days of receipt of such diagnosis, refer the
10 inmate to the board for consideration for release on medical parole.
11 However, no such referral of an inmate to the board shall be made unless
12 the inmate has been examined by a physician and diagnosed as having a
13 terminal condition, disease or syndrome as previously described herein
14 at some time subsequent to such inmate's admission to a facility oper-
15 ated by the department of correctional services.
16 (c) When the commissioner refers an inmate to the board, the commis-
17 sioner shall provide an appropriate medical discharge plan established
18 by the department. The department is authorized to request assistance
19 from the department of health and from the county in which the inmate
20 resided and committed his or her crime, which shall provide assistance
21 with respect to the development and implementation of a discharge plan,
22 including potential placements of a releasee. The department and the
23 department of health shall jointly develop standards for the medical
24 discharge plan that are appropriately adapted to the criminal justice
25 setting, based on standards established by the department of health for
26 hospital medical discharge planning. The board may postpone its decision
27 pending completion of an adequate discharge plan, or may deny release
28 based on inadequacy of the discharge plan.
29 3. Any certification by the commissioner or the commissioner's desig-
30 nee pursuant to this section shall be [deeemed] deemed a judicial func-
31 tion and shall not be reviewable if done in accordance with law.
32 4. (a) [Medical parole granted pursuant to this section shall be for a
33 period of six months.] Once an inmate is released on medical parole,
34 that inmate will then be supervised by the department pursuant to para-
35 graph (b) of subdivision two of section two hundred fifty-nine-i of this
36 article.
37 (b) The board [shall] may require as a condition of release on medical
38 parole that the releasee agree to remain under the care of a physician
39 while on medical parole and in a hospital established pursuant to arti-
40 cle twenty-eight of the public health law, a hospice established pursu-
41 ant to article forty of the public health law or any other placement
42 that can provide appropriate medical care as specified in the medical
43 discharge plan required by subdivision two of this section. The medical
44 discharge plan shall state that the availability of the placement has
45 been confirmed, and by whom. Notwithstanding any other provision of law,
46 when an inmate who qualifies for release under this section is cogni-
47 tively incapable of signing the requisite documentation to effectuate
48 the medical discharge plan and, after a diligent search no person has
49 been identified who could otherwise be appointed as the inmate's guardi-
50 an by a court of competent jurisdiction, then, solely for the purpose of
51 implementing the medical discharge plan, the facility health services
52 director at the facility where the inmate is currently incarcerated
53 shall be lawfully empowered to act as the inmate's guardian for the
54 purpose of effectuating the medical discharge.
A. 10343 4
1 (c) Where appropriate, the board shall require as a condition of
2 release that medical parolees be supervised on intensive caseloads at
3 reduced supervision ratios.
4 (d) [The board shall require as a condition of release on medical
5 parole that the releasee undergo periodic medical examinations and a
6 medical examination at least one month prior to the expiration of the
7 period of medical parole and, for the purposes of making a decision
8 pursuant to paragraph (e) of this subdivision, that the releasee provide
9 the board with a report, prepared by the treating physician, of the
10 results of such examination. Such report shall specifically state wheth-
11 er or not the parolee continues to suffer from a terminal condition,
12 disease, or syndrome, and to be so debilitated or incapacitated as to be
13 severely restricted in his or her ability to self-ambulate or to perform
14 significant normal activities of daily living.
15 (e) Prior to the expiration of the period of medical parole the board
16 shall review the medical examination report required by paragraph (d) of
17 this subdivision and may again grant medical parole pursuant to this
18 section; provided, however, that the provisions of paragraph (c) of
19 subdivision one and subdivision two of this section shall not apply.
20 (f) If the updated medical report presented to the board states that a
21 parolee released pursuant to this section is no longer so debilitated or
22 incapacitated as to create a reasonable probability that he or she is
23 physically or cognitively incapable of presenting any danger to society
24 or if the releasee fails to submit the updated medical report then the
25 board may not make a new grant of medical parole pursuant to paragraph
26 (e) of this subdivision. Where the board has not granted medical parole
27 pursuant to such paragraph (e) the board shall promptly conduct through
28 one of its members, or cause to be conducted by a hearing officer desig-
29 nated by the board, a hearing to determine whether the releasee is
30 suffering from a terminal condition, disease or syndrome and is so
31 debilitated or incapacitated as to create a reasonable probability that
32 he or she is physically or cognitively incapable of presenting any
33 danger to society and does not present a danger to society. If the board
34 makes such a determination then it may make a new grant of medical
35 parole pursuant to the standards of paragraph (b) of subdivision one of
36 this section. At the hearing, the releasee shall have the right to
37 representation by counsel, including the right, if the releasee is
38 financially unable to retain counsel, to have the appropriate court
39 assign counsel in accordance with the county or city plan for represen-
40 tation placed in operation pursuant to article eighteen-B of the county
41 law.
42 (g) The hearing and determination provided for by paragraph (f) of
43 this subdivision shall be concluded within the six month period of
44 medical parole. If the board does not renew the grant of medical parole,
45 it shall order that the releasee be returned immediately to the custody
46 of the department.
47 (h) In addition to the procedures set forth in paragraph (f) of this
48 subdivision, medical] Medical parole may be revoked at any time upon any
49 of the grounds specified in paragraph (a) of subdivision three of
50 section two hundred fifty-nine-i of this article, and in accordance with
51 the procedures specified in subdivision three of section two hundred
52 fifty-nine-i of this article.
53 [(i) A releasee who is on medical parole and who becomes eligible for
54 parole pursuant to the provisions of subdivision two of section two
55 hundred fifty-nine-i of this article shall be eligible for parole
56 consideration pursuant to such subdivision.]
A. 10343 5
1 5. A denial of release on medical parole [or expiration of medical
2 parole in accordance with the provisions of paragraph (f) of subdivision
3 four of this section] shall not preclude the inmate from reapplying for
4 medical parole or otherwise affect an inmate's eligibility for any other
5 form of release provided for by law.
6 6. To the extent that any provision of this section requires disclo-
7 sure of medical information for the purpose of processing an application
8 or making a decision, regarding release on medical parole [or renewal of
9 medical parole,] or for the purpose of appropriately supervising a
10 person released on medical parole, and that such disclosure would other-
11 wise be prohibited by article twenty-seven-F of the public health law,
12 the provisions of this section shall be controlling.
13 7. The commissioner and the chairman of the board shall be authorized
14 to promulgate rules and regulations for their respective agencies to
15 implement the provisions of this section.
16 8. Any decision made by the board pursuant to this section may be
17 appealed pursuant to subdivision four of section two hundred
18 fifty-nine-i of this article.
19 9. The chairman shall report annually to the governor, the temporary
20 president of the senate and the speaker of the assembly, the chair-
21 persons of the assembly and senate codes committees, the chairperson of
22 the senate crime and corrections committee, and the chairperson of the
23 assembly corrections committee the number of inmates who have applied
24 for medical parole; the number who have been granted medical parole; the
25 nature of the illness of the applicants, the counties to which they have
26 been released and the nature of the placement pursuant to the medical
27 discharge plan; the categories of reasons for denial for those who have
28 been denied; [the number of releasees who have been granted an addi-
29 tional period or periods of medical parole and the number of such
30 grants;] the number of releasees on medical parole who have been
31 returned to imprisonment in the custody of the department and the
32 reasons for return.
33 10. Notwithstanding any other provision of law, in the case of an
34 inmate whose terminal condition, disease or syndrome meets the criteria
35 for medical parole as set forth in paragraph (a) of subdivision one of
36 this section, and who is not serving a sentence for one or more offenses
37 set forth in paragraph (i) of subdivision one of section eight hundred
38 six of the correction law which would render such inmate ineligible for
39 presumptive release, the granting of medical parole shall be determined
40 by the commissioner provided that a release of such inmate shall be in
41 accordance with subdivision eleven of this section. In such case, the
42 provisions that would have applied to and the procedures that would have
43 been followed by the board of parole pursuant to this section shall
44 apply to and be followed by the commissioner.
45 11. (a) After the commissioner has made a determination to grant
46 medical parole pursuant to subdivision ten of this section, the commis-
47 sioner shall notify the chairperson of the board of parole, or their
48 designee who shall be a member of the board of parole, and provide him
49 or her with all relevant records, files, information and documentation,
50 which includes but is not limited to the criminal history, medical diag-
51 nosis and treatment pertaining to the terminally ill inmate no more than
52 five days from the date of the determination. (b) The chairperson or his
53 or her designee shall either accept the commissioner's grant of medical
54 parole, in which case the inmate may be released by the commissioner, or
55 conduct further review. This decision or review shall be made within
56 five days of the receipt of the relevant records, files, information and
A. 10343 6
1 documentation from the commissioner. The chairperson's further review
2 may include, but not be limited to, an appearance by the terminally ill
3 inmate before the chairperson or his or her designee. (c) After this
4 further review, the chairperson shall either accept the commissioner's
5 grant of medical parole, in which case the inmate may be released by the
6 commissioner, or the chairperson shall schedule an appearance for the
7 terminally ill inmate before the board of parole.
8 In the event the terminally ill inmate is scheduled to make an appear-
9 ance before the board of parole pursuant to this subdivision, the matter
10 shall be heard by a panel that does not include the chairperson or any
11 member of the board of parole who was involved in the review of the
12 commissioner's determination.
13 § 2. Paragraph (a) of subdivision 1 of section 259-r of the executive
14 law, as amended by section 38-l-1 of subpart A of part C of chapter 62
15 of the laws of 2011, is amended to read as follows:
16 (a) The board shall have the power to release on medical parole any
17 inmate serving an indeterminate or determinate sentence of imprisonment
18 who, pursuant to subdivision two of this section, has been certified to
19 be suffering from a terminal condition, disease or syndrome [and to be
20 so debilitated or incapacitated as to create a reasonable probability
21 that he or she is physically or cognitively incapable of presenting any
22 danger to society], provided, however, that no inmate serving a sentence
23 imposed upon a conviction for murder in the first degree, aggravated
24 murder or an attempt or conspiracy to commit murder in the first degree
25 or aggravated murder or a sentence of life without parole shall be
26 eligible for such release, and provided further that no inmate serving a
27 sentence imposed upon a conviction for any of the following offenses
28 shall be eligible for such release unless in the case of an indetermi-
29 nate sentence he or she has served at least one-half of the minimum
30 period of the sentence and in the case of a determinate sentence he or
31 she has served at least one-half of the term of his or her determinate
32 sentence: murder in the second degree, manslaughter in the first
33 degree, any offense defined in article one hundred thirty of the penal
34 law or an attempt to commit any of these offenses. Solely for the
35 purpose of determining medical parole eligibility pursuant to this
36 section, such one-half of the minimum period of the indeterminate
37 sentence and one-half of the term of the determinate sentence shall not
38 be credited with any time served under the jurisdiction of the depart-
39 ment prior to the commencement of such sentence pursuant to the opening
40 paragraph of subdivision one of section 70.30 of the penal law or subdi-
41 vision two-a of section 70.30 of the penal law, except to the extent
42 authorized by subdivision three of section 70.30 of the penal law.
43 § 3. Section 259-s the executive law, as amended by section 38-m of
44 subpart A of part C of chapter 62 of the laws of 2011, is amended to
45 read as follows:
46 § 259-s. Release on medical parole for inmates suffering significant
47 debilitating illnesses. 1. (a) The board shall have the power to release
48 on medical parole any inmate serving an indeterminate or determinate
49 sentence of imprisonment who, pursuant to subdivision two of this
50 section, has been certified to be suffering from a significant and
51 permanent non-terminal condition, disease or syndrome that has rendered
52 the inmate [so] significantly physically or cognitively debilitated or
53 incapacitated [as to create a reasonable probability that he or she does
54 not present any danger to society], provided, however, that no inmate
55 serving a sentence imposed upon a conviction for murder in the first
56 degree, aggravated murder or an attempt or conspiracy to commit murder
A. 10343 7
1 in the first degree or aggravated murder or a sentence of life without
2 parole shall be eligible for such release, and provided further that no
3 inmate serving a sentence imposed upon a conviction for any of the
4 following offenses shall be eligible for such release unless in the case
5 of an indeterminate sentence he or she has served at least one-half of
6 the minimum period of the sentence and in the case of a determinate
7 sentence he or she has served at least one-half of the term of his or
8 her determinate sentence: murder in the second degree, manslaughter in
9 the first degree, any offense defined in article one hundred thirty of
10 the penal law or an attempt to commit any of these offenses. Solely for
11 the purpose of determining medical parole eligibility pursuant to this
12 section, such one-half of the minimum period of the indeterminate
13 sentence and one-half of the term of the determinate sentence shall not
14 be credited with any time served under the jurisdiction of the depart-
15 ment prior to the commencement of such sentence pursuant to the opening
16 paragraph of subdivision one of section 70.30 of the penal law or subdi-
17 vision two-a of section 70.30 of the penal law, except to the extent
18 authorized by subdivision three of section 70.30 of the penal law.
19 (b) Such release shall be granted only after the board considers
20 whether, in light of the inmate's medical condition, there is a reason-
21 able probability that the inmate, if released, will live and remain at
22 liberty without violating the law, and that such release is not incom-
23 patible with the welfare of society and will not so deprecate the seri-
24 ousness of the crime as to undermine respect for the law, and shall be
25 subject to the limits and conditions specified in subdivision four of
26 this section. In making this determination, the board shall consider:
27 (i) [the nature and seriousness of the inmate's crime; (ii) the inmate's
28 prior criminal record; (iii) the inmate's disciplinary, behavioral and
29 rehabilitative record during the term of his or her incarceration; (iv)]
30 the factors described in subdivision two of section two hundred fifty-
31 nine-i of this article; (ii) the nature of the inmate's medical condi-
32 tion, disease or syndrome and the extent of medical treatment or care
33 that the inmate will require as a result of that condition, disease or
34 syndrome; (iii) the amount of time the inmate must serve before becoming
35 eligible for release pursuant to section two hundred fifty-nine-i of
36 this article; [(v)] (iv) the current age of the inmate and his or her
37 age at the time of the crime; [(vi) the recommendations of the sentenc-
38 ing court, the district attorney and the victim or the victim's repre-
39 sentative; (vii) the nature of the inmate's medical condition, disease
40 or syndrome and the extent of medical treatment or care that the inmate
41 will require as a result of that condition, disease or syndrome;] and
42 [(viii)] (v) any other relevant factor. Except as set forth in paragraph
43 (a) of this subdivision, such release may be granted at any time during
44 the term of an inmate's sentence, notwithstanding any other provision of
45 law.
46 (c) The board shall afford notice to the sentencing court, the
47 district attorney, the attorney for the inmate and, where necessary
48 pursuant to subdivision two of section two hundred fifty-nine-i of this
49 article, the crime victim, that the inmate is being considered for
50 release pursuant to this section and the parties receiving notice shall
51 have thirty days to comment on the release of the inmate. Release on
52 medical parole shall not be granted until the expiration of the comment
53 period provided for in this paragraph.
54 2. (a) The commissioner, on the commissioner's own initiative or at
55 the request of an inmate, or an inmate's spouse, relative or attorney,
56 may, in the exercise of the commissioner's discretion, direct that an
A. 10343 8
1 investigation be undertaken to determine whether a diagnosis should be
2 made of an inmate who appears to be suffering from a significant and
3 permanent non-terminal and incapacitating condition, disease or
4 syndrome. Any such medical diagnosis shall be made by a physician
5 licensed to practice medicine in this state pursuant to section sixty-
6 five hundred twenty-four of the education law. Such physician shall
7 either be employed by the department, shall render professional services
8 at the request of the department, or shall be employed by a hospital or
9 medical facility used by the department for the medical treatment of
10 inmates. The diagnosis shall be reported to the commissioner and shall
11 include but shall not be limited to a description of the condition,
12 disease or syndrome suffered by the inmate, a prognosis concerning the
13 likelihood that the inmate will not recover from such condition, disease
14 or syndrome, a description of the inmate's physical or cognitive inca-
15 pacity which shall include a prediction respecting the likely duration
16 of the incapacity, and a statement by the physician of whether the
17 inmate is so debilitated or incapacitated as to be severely restricted
18 in his or her ability to self-ambulate or to perform significant normal
19 activities of daily living. This report also shall include a recommenda-
20 tion of the type and level of services and treatment the inmate would
21 require if granted medical parole and a recommendation for the types of
22 settings in which the services and treatment should be given.
23 (b) The commissioner, or the commissioner's designee, shall review the
24 diagnosis and may certify that the inmate is suffering from such signif-
25 icant and permanent non-terminal condition, disease or syndrome [and
26 that the inmate is so debilitated or incapacitated as to create a
27 reasonable probability that he or she is physically or cognitively inca-
28 pable of presenting any danger to society] and that the inmate is
29 significantly physically or cognitively debilitated or incapacitated.
30 If the commissioner does not so certify then the inmate shall not be
31 referred to the board for consideration for release on medical parole.
32 If the commissioner does so certify, then the commissioner shall, within
33 seven working days of receipt of such diagnosis, refer the inmate to the
34 board for consideration for release on medical parole. However, no such
35 referral of an inmate to the board of parole shall be made unless the
36 inmate has been examined by a physician and diagnosed as having a condi-
37 tion, disease or syndrome as previously described herein at some time
38 subsequent to such inmate's admission to a facility operated by the
39 department.
40 (c) When the commissioner refers an inmate to the board, the commis-
41 sioner shall provide an appropriate medical discharge plan established
42 by the department. The department is authorized to request assistance
43 from the department of health and from the county in which the inmate
44 resided and committed his or her crime, which shall provide assistance
45 with respect to the development and implementation of a discharge plan,
46 including potential placements of a releasee. The department and the
47 department of health shall jointly develop standards for the medical
48 discharge plan that are appropriately adapted to the criminal justice
49 setting, based on standards established by the department of health for
50 hospital medical discharge planning. The board may postpone its decision
51 pending completion of an adequate discharge plan, or may deny release
52 based on inadequacy of the discharge plan.
53 3. Any certification by the commissioner or the commissioner's desig-
54 nee pursuant to this section shall be deemed a judicial function and
55 shall not be reviewable if done in accordance with law.
A. 10343 9
1 4. (a) [Medical parole granted pursuant to this section shall be for a
2 period of six months.] Once an inmate is released on medical parole,
3 that inmate will then be supervised by the department pursuant to para-
4 graph (b) of subdivision two of section two hundred fifty-nine-i of this
5 article.
6 (b) The board [shall] may require as a condition of release on medical
7 parole that the releasee agree to remain under the care of a physician
8 while on medical parole and in a hospital established pursuant to arti-
9 cle twenty-eight of the public health law, a hospice established pursu-
10 ant to article forty of the public health law or any other placement,
11 including a residence with family or others, that can provide appropri-
12 ate medical care as specified in the medical discharge plan required by
13 subdivision two of this section. The medical discharge plan shall state
14 that the availability of the placement has been confirmed, and by whom.
15 Notwithstanding any other provision of law, when an inmate who qualifies
16 for release under this section is cognitively incapable of signing the
17 requisite documentation to effectuate the medical discharge plan and,
18 after a diligent search no person has been identified who could other-
19 wise be appointed as the inmate's guardian by a court of competent
20 jurisdiction, then, solely for the purpose of implementing the medical
21 discharge plan, the facility health services director at the facility
22 where the inmate is currently incarcerated shall be lawfully empowered
23 to act as the inmate's guardian for the purpose of effectuating the
24 medical discharge.
25 (c) Where appropriate, the board shall require as a condition of
26 release that medical parollees be supervised on intensive caseloads at
27 reduced supervision ratios.
28 (d) [The board shall require as a condition of release on medical
29 parole that the releasee undergo periodic medical examinations and a
30 medical examination at least one month prior to the expiration of the
31 period of medical parole and, for the purposes of making a decision
32 pursuant to paragraph (e) of this subdivision, that the releasee provide
33 the board with a report, prepared by the treating physician, of the
34 results of such examination. Such report shall specifically state wheth-
35 er or not the parolee continues to suffer from a significant and perma-
36 nent non-terminal and debilitating condition, disease, or syndrome, and
37 to be so debilitated or incapacitated as to be severely restricted in
38 his or her ability to self-ambulate or to perform significant normal
39 activities of daily living.
40 (e) Prior to the expiration of the period of medical parole the board
41 shall review the medical examination report required by paragraph (d) of
42 this subdivision and may again grant medical parole pursuant to this
43 section; provided, however, that the provisions of paragraph (c) of
44 subdivision one and subdivision two of this section shall not apply.
45 (f) If the updated medical report presented to the board states that a
46 parolee released pursuant to this section is no longer so debilitated or
47 incapacitated as to create a reasonable probability that he or she is
48 physically or cognitively incapable of presenting any danger to society
49 or if the releasee fails to submit the updated medical report then the
50 board may not make a new grant of medical parole pursuant to paragraph
51 (e) of this subdivision. Where the board has not granted medical parole
52 pursuant to such paragraph (e) the board shall promptly conduct through
53 one of its members, or cause to be conducted by a hearing officer desig-
54 nated by the board, a hearing to determine whether the releasee is
55 suffering from a significant and permanent non-terminal and incapacitat-
56 ing condition, disease or syndrome and is so debilitated or incapaci-
A. 10343 10
1 tated as to create a reasonable probability that he or she is physically
2 or cognitively incapable of presenting any danger to society and does
3 not present a danger to society. If the board makes such a determination
4 then it may make a new grant of medical parole pursuant to the standards
5 of paragraph (b) of subdivision one of this section. At the hearing, the
6 releasee shall have the right to representation by counsel, including
7 the right, if the releasee is financially unable to retain counsel, to
8 have the appropriate court assign counsel in accordance with the county
9 or city plan for representation placed in operation pursuant to article
10 eighteen-B of the county law.
11 (g) The hearing and determination provided for by paragraph (f) of
12 this subdivision shall be concluded within the six month period of
13 medical parole. If the board does not renew the grant of medical parole,
14 it shall order that the releasee be returned immediately to the custody
15 of the department of correctional services.
16 (h) In addition to the procedures set forth in paragraph (f) of this
17 subdivision, medical] Medical parole may be revoked at any time upon any
18 of the grounds specified in paragraph (a) of subdivision three of
19 section two hundred fifty-nine-i of this article, and in accordance with
20 the procedures specified in subdivision three of section two hundred
21 fifty-nine-i of this article.
22 [(i) A releasee who is on medical parole and who becomes eligible for
23 parole pursuant to the provisions of subdivision two of section two
24 hundred fifty-nine-i of this article shall be eligible for parole
25 consideration pursuant to such subdivision.]
26 5. A denial of release on medical parole [or expiration of medical
27 parole in accordance with the provisions of paragraph (f) of subdivision
28 four of this section] shall not preclude the inmate from reapplying for
29 medical parole or otherwise affect an inmate's eligibility for any other
30 form of release provided for by law.
31 6. To the extent that any provision of this section requires disclo-
32 sure of medical information for the purpose of processing an application
33 or making a decision, regarding release on medical parole [or renewal of
34 medical parole,] or for the purpose of appropriately supervising a
35 person released on medical parole, and that such disclosure would other-
36 wise be prohibited by article twenty-seven-F of the public health law,
37 the provisions of this section shall be controlling.
38 7. The commissioner and the chair of the board shall be authorized to
39 promulgate rules and regulations for their respective agencies to imple-
40 ment the provisions of this section.
41 8. Any decision made by the board pursuant to this section may be
42 appealed pursuant to subdivision four of section two hundred
43 fifty-nine-i of this article.
44 9. The chair of the board shall report annually to the governor, the
45 temporary president of the senate and the speaker of the assembly, the
46 chairpersons of the assembly and senate codes committees, the chair-
47 person of the senate crime and corrections committee, and the chair-
48 person of the assembly corrections committee the number of inmates who
49 have applied for medical parole under this section; the number who have
50 been granted medical parole; the nature of the illness of the appli-
51 cants, the counties to which they have been released and the nature of
52 the placement pursuant to the medical discharge plan; the categories of
53 reasons for denial for those who have been denied; [the number of
54 releasees who have been granted an additional period or periods of
55 medical parole and the number of such grants;] the number of releasees
A. 10343 11
1 on medical parole who have been returned to imprisonment in the custody
2 of the department and the reasons for return.
3 § 4. This act shall take effect immediately; provided, however, that
4 the amendments made to paragraph (a) of subdivision 1 of section 259-r
5 of the executive law by section one of this act shall not affect the
6 expiration of such paragraph pursuant to chapter 3 of the laws of 1995,
7 when upon such date the provisions of section two of this act shall take
8 effect.