Bill Text: NY S04221 | 2019-2020 | General Assembly | Introduced

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Bill Title: Relates to prohibiting medical parole for persons convicted of an act of terrorism.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2020-01-08 - REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION [S04221 Detail]

Download: New_York-2019-S04221-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                          4221
                               2019-2020 Regular Sessions
                    IN SENATE
                                      March 5, 2019
                                       ___________
        Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
          printed to be committed to the Committee on Crime Victims,  Crime  and
          Correction
        AN  ACT  to  amend the executive law, in relation to prohibiting medical
          parole for persons convicted of an act of terrorism
          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-l 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]  commissioner  shall  have  the power to release on medical
     7  parole any inmate serving an indeterminate or  determinate  sentence  of
     8  imprisonment  who, pursuant to subdivision two of this section, has been
     9  certified to be suffering from a terminal condition, disease or syndrome
    10  and to be so debilitated or incapacitated  as  to  create  a  reasonable
    11  probability  that  he  or  she is physically or cognitively incapable of
    12  presenting any danger to society,  provided,  however,  that  no  inmate
    13  serving  a  sentence  imposed upon a conviction for [murder in the first
    14  degree or an attempt or conspiracy to commit murder in the first  degree
    15  shall  be eligible for such release, and provided further that no inmate
    16  serving a sentence imposed upon a conviction for any  of  the  following
    17  offenses  shall  be  eligible  for such release unless in the case of an
    18  indeterminate sentence he or she has served at  least  one-half  of  the
    19  minimum period of the sentence and in the case of a determinate sentence
    20  he  or she has served at least one-half of the term of his or her deter-
    21  minate sentence:  murder in the second degree, manslaughter in the first
    22  degree, any offense defined in article one hundred thirty of  the  penal
    23  law  or  an  attempt  to  commit  any  of these offenses. Solely for the
    24  purpose of determining  medical  parole  eligibility  pursuant  to  this

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09335-01-9
        S. 4221                             2

     1  section,  such  one-half  of  the  minimum  period  of the indeterminate
     2  sentence and one-half of the term of the determinate sentence shall  not
     3  be  credited  with any time served under the jurisdiction of the depart-
     4  ment  prior to the commencement of such sentence pursuant to the opening
     5  paragraph of subdivision one of section 70.30 of the penal law or subdi-
     6  vision two-a of section 70.30 of the penal law,  except  to  the  extent
     7  authorized  by  subdivision  three of section 70.30 of the penal law] an
     8  act of terrorism as defined in section 490.05 of the penal law, shall be
     9  eligible for such release.
    10    (b) Such release shall be granted only after the [board]  commissioner
    11  considers  whether, in light of the inmate's medical condition, there is
    12  a reasonable probability that the inmate, if  released,  will  live  and
    13  remain  at  liberty  without violating the law, and that such release is
    14  not incompatible with the welfare of society and will not  so  deprecate
    15  the  seriousness  of  the crime as to undermine respect for the law, and
    16  shall be subject to the limits and conditions specified  in  subdivision
    17  four  of  this  section.  Except  as  set forth in paragraph (a) of this
    18  subdivision, such release may be granted at any time during the term  of
    19  an inmate's sentence, notwithstanding any other provision of law.
    20    [(c)  The  board  shall  afford  notice  to  the sentencing court, the
    21  district attorney and the attorney for the inmate  that  the  inmate  is
    22  being  considered  for  release pursuant to this section and the parties
    23  receiving notice shall have fifteen days to comment on  the  release  of
    24  the  inmate.  Release  on  medical parole shall not be granted until the
    25  expiration of the comment period provided for in this paragraph.]
    26    2. (a) The commissioner, on the commissioner's own  initiative  or  at
    27  the  request  of an inmate, or an inmate's spouse, relative or attorney,
    28  may, in the exercise of the commissioner's discretion,  direct  that  an
    29  investigation  be  undertaken to determine whether a diagnosis should be
    30  made of an inmate who appears to be suffering from a terminal condition,
    31  disease or syndrome. Any such medical  diagnosis  shall  be  made  by  a
    32  physician  licensed  to  practice  medicine  in  this  state pursuant to
    33  section sixty-five hundred twenty-four of the education law. Such physi-
    34  cian shall either be employed by the department,  shall  render  profes-
    35  sional  services  at the request of the department, or shall be employed
    36  by a hospital or medical facility used by the department for the medical
    37  treatment of inmates. The diagnosis shall be reported to the commission-
    38  er and shall include but shall not be limited to a  description  of  the
    39  terminal  condition, disease or syndrome suffered by the inmate, a prog-
    40  nosis concerning the likelihood that the inmate will  not  recover  from
    41  such  terminal  condition,  disease  or  syndrome,  a description of the
    42  inmate's physical or cognitive incapacity which shall include a  predic-
    43  tion  respecting  the likely duration of the incapacity, and a statement
    44  by the physician of whether the inmate is so  debilitated  or  incapaci-
    45  tated  as  to be severely restricted in his or her ability to self-ambu-
    46  late or to perform significant normal activities of daily  living.  This
    47  report  also  shall  include  a  recommendation of the type and level of
    48  services and treatment the  inmate  would  require  if  granted  medical
    49  parole  and  a  recommendation  for  the  types of settings in which the
    50  services and treatment should be given.
    51    (b) The commissioner, or the commissioner's designee, shall review the
    52  diagnosis and may certify that the inmate is suffering from such  termi-
    53  nal condition, disease or syndrome and that the inmate is so debilitated
    54  or incapacitated as to create a reasonable probability that he or she is
    55  physically  or  cognitively  incapable  of  presenting [any] a danger to
    56  society. [If the commissioner does not so certify then the inmate  shall
        S. 4221                             3

     1  not  be  referred  to the board for consideration for release on medical
     2  parole.] If the commissioner does  so  certify,  then  the  commissioner
     3  shall, within seven working days of receipt of such diagnosis, refer the
     4  inmate  [to  the board for consideration] for release on medical parole.
     5  However, no [such referral of an inmate to the board] release  shall  be
     6  made unless the inmate has been examined by a physician and diagnosed as
     7  having a terminal condition, disease or syndrome as previously described
     8  herein  at some time subsequent to such inmate's admission to a facility
     9  operated by the department of correctional services.
    10    (c) [When the commissioner refers an inmate to  the  board,  the]  The
    11  commissioner  shall provide an appropriate medical discharge plan estab-
    12  lished by the  department.  The  department  is  authorized  to  request
    13  assistance  from  the  department of health and from the county in which
    14  the inmate resided and committed his or her crime, which  shall  provide
    15  assistance  with  respect  to  the  development  and implementation of a
    16  discharge plan,  including  potential  placements  of  a  releasee.  The
    17  department  and the department of health shall jointly develop standards
    18  for the medical discharge plan that are  appropriately  adapted  to  the
    19  criminal  justice setting, based on standards established by the depart-
    20  ment of health for hospital  medical  discharge  planning.  The  [board]
    21  commissioner may postpone its decision pending completion of an adequate
    22  discharge plan, or may deny release based on inadequacy of the discharge
    23  plan.
    24    3.  Any certification by the commissioner or the commissioner's desig-
    25  nee pursuant to this section shall be deemed  a  judicial  function  and
    26  shall not be reviewable if done in accordance with law.
    27    4.  (a) Medical parole granted pursuant to this section shall be for a
    28  period of six months.
    29    (b) The [board] commissioner shall require as a condition  of  release
    30  on  medical parole that the releasee agree to remain under the care of a
    31  physician while on medical parole and in a hospital established pursuant
    32  to article twenty-eight of the public health law, a hospice  established
    33  pursuant  to  article forty of the public health law or any other place-
    34  ment that can provide appropriate  medical  care  as  specified  in  the
    35  medical  discharge plan required by subdivision two of this section. The
    36  medical discharge plan shall state that the availability of  the  place-
    37  ment  has  been  confirmed,  and  by  whom.  Notwithstanding  any  other
    38  provision of law, when an inmate who qualifies for  release  under  this
    39  section  is cognitively incapable of signing the requisite documentation
    40  to effectuate the medical discharge plan and, after a diligent search no
    41  person has been identified who  could  otherwise  be  appointed  as  the
    42  inmate's guardian by a court of competent jurisdiction, then, solely for
    43  the  purpose  of  implementing  the medical discharge plan, the facility
    44  health services director at the facility where the inmate  is  currently
    45  incarcerated shall be lawfully empowered to act as the inmate's guardian
    46  for the purpose of effectuating the medical discharge.
    47    (c)  Where  appropriate,  the  [board] commissioner shall require as a
    48  condition of release that medical parolees be  supervised  on  intensive
    49  caseloads at reduced supervision ratios.
    50    (d)  The  [board] commissioner shall require as a condition of release
    51  on medical parole that the releasee undergo  periodic  medical  examina-
    52  tions  and a medical examination at least one month prior to the expira-
    53  tion of the period of medical parole and, for the purposes of  making  a
    54  decision pursuant to paragraph (e) of this subdivision, that the releas-
    55  ee  provide the board with a report, prepared by the treating physician,
    56  of the results of such examination. Such report shall specifically state
        S. 4221                             4
     1  whether or not the parolee continues to suffer from  a  terminal  condi-
     2  tion, disease, or syndrome, and to be so debilitated or incapacitated as
     3  to  be  severely restricted in his or her ability to self-ambulate or to
     4  perform significant normal activities of daily living.
     5    (e)  Prior  to  the  expiration  of  the  period of medical parole the
     6  [board]  commissioner  shall  review  the  medical  examination   report
     7  required  by  paragraph  (d)  of  this  subdivision  and may again grant
     8  medical parole pursuant to this section;  provided,  however,  that  the
     9  provisions  of [paragraph (c) of subdivision one and] subdivision two of
    10  this section shall not apply.
    11    (f) If the updated medical report presented to the [board] commission-
    12  er states that a parolee released pursuant to this section is no  longer
    13  so  debilitated  or  incapacitated as to create a reasonable probability
    14  that he or she is physically or cognitively incapable of presenting  any
    15  danger to society or if the releasee fails to submit the updated medical
    16  report  then the board may not make a new grant of medical parole pursu-
    17  ant to paragraph (e) of this subdivision. Where the [board] commissioner
    18  has not granted medical  parole  pursuant  to  such  paragraph  (e)  the
    19  [board]   commissioner  shall  promptly  conduct  [through  one  of  its
    20  members,] or cause to be conducted by a hearing officer  [designated  by
    21  the  board,]  a  hearing  to determine whether the releasee is suffering
    22  from a terminal condition, disease or syndrome and is so debilitated  or
    23  incapacitated  as  to  create a reasonable probability that he or she is
    24  physically or cognitively incapable of presenting any danger to  society
    25  and  does  not  present a danger to society. If the [board] commissioner
    26  makes such a determination then it may  make  a  new  grant  of  medical
    27  parole  pursuant to the standards of paragraph (b) of subdivision one of
    28  this section. At the hearing, the  releasee  shall  have  the  right  to
    29  representation  by  counsel,  including  the  right,  if the releasee is
    30  financially unable to retain counsel,  to  have  the  appropriate  court
    31  assign  counsel in accordance with the county or city plan for represen-
    32  tation placed in operation pursuant to article eighteen-B of the  county
    33  law.
    34    (g)  The  hearing  and  determination provided for by paragraph (f) of
    35  this subdivision shall be concluded  within  the  six  month  period  of
    36  medical  parole. If the [board] commissioner does not renew the grant of
    37  medical parole, it shall order that the releasee be returned immediately
    38  to the custody of the department.
    39    (h) In addition to the procedures set forth in paragraph (f)  of  this
    40  subdivision,  medical  parole may be revoked at any time upon any of the
    41  grounds specified in paragraph (a) of subdivision three of  section  two
    42  hundred  fifty-nine-i of this article, and in accordance with the proce-
    43  dures specified in subdivision three of section two hundred fifty-nine-i
    44  of this article.
    45    (i) A releasee who is on medical parole and who becomes  eligible  for
    46  parole  pursuant  to  the  provisions  of subdivision two of section two
    47  hundred fifty-nine-i of  this  article  shall  be  eligible  for  parole
    48  consideration pursuant to such subdivision.
    49    5.  A  denial  of  release  on medical parole or expiration of medical
    50  parole in accordance with the provisions of paragraph (f) of subdivision
    51  four of this section shall not preclude the inmate from  reapplying  for
    52  medical parole or otherwise affect an inmate's eligibility for any other
    53  form of release provided for by law.
    54    6.  To  the extent that any provision of this section requires disclo-
    55  sure of medical information for the purpose of processing an application
    56  or making a decision, regarding release on medical parole or renewal  of
        S. 4221                             5
     1  medical parole, or for the purpose of appropriately supervising a person
     2  released  on medical parole, and that such disclosure would otherwise be
     3  prohibited by article twenty-seven-F  of  the  public  health  law,  the
     4  provisions of this section shall be controlling.
     5    7.  The  commissioner [and the chairman of the board] shall be author-
     6  ized to promulgate rules and regulations for their  respective  agencies
     7  to implement the provisions of this section.
     8    8.  Any  decision  made  by  the [board] commissioner pursuant to this
     9  section may be appealed pursuant to  subdivision  four  of  section  two
    10  hundred fifty-nine-i of this article.
    11    9.  The [chairman] commissioner shall report annually to the governor,
    12  the temporary president of the senate and the speaker of  the  assembly,
    13  the chairpersons of the assembly and senate codes committees, the chair-
    14  person  of  the  senate  crime and corrections committee, and the chair-
    15  person of the assembly corrections committee the number of  inmates  who
    16  have  applied  for  medical  parole;  the  number  who have been granted
    17  medical parole; the nature of the illness of the applicants,  the  coun-
    18  ties  to  which  they have been released and the nature of the placement
    19  pursuant to the medical discharge plan; the categories  of  reasons  for
    20  denial  for those who have been denied; the number of releasees who have
    21  been granted an additional period or periods of medical parole  and  the
    22  number  of  such  grants;  the number of releasees on medical parole who
    23  have been returned to imprisonment in the custody of the department  and
    24  the reasons for return.
    25    [10.  Notwithstanding  any  other  provision of law, in the case of an
    26  inmate whose terminal condition, disease or syndrome meets the  criteria
    27  for  medical  parole as set forth in paragraph (a) of subdivision one of
    28  this section, and who is not serving a sentence for one or more offenses
    29  set forth in paragraph (i) of subdivision one of section  eight  hundred
    30  six  of the correction law which would render such inmate ineligible for
    31  presumptive release, the granting of medical parole shall be  determined
    32  by  the  commissioner provided that a release of such inmate shall be in
    33  accordance with subdivision eleven of this section. In  such  case,  the
    34  provisions that would have applied to and the procedures that would have
    35  been  followed  by  the  board  of parole pursuant to this section shall
    36  apply to and be followed by the commissioner.
    37    11. (a) After the commissioner  has  made  a  determination  to  grant
    38  medical  parole pursuant to subdivision ten of this section, the commis-
    39  sioner shall notify the chairperson of the board  of  parole,  or  their
    40  designee  who  shall be a member of the board of parole, and provide him
    41  or her with all relevant records, files, information and  documentation,
    42  which includes but is not limited to the criminal history, medical diag-
    43  nosis and treatment pertaining to the terminally ill inmate no more than
    44  five days from the date of the determination. (b) The chairperson or his
    45  or  her designee shall either accept the commissioner's grant of medical
    46  parole, in which case the inmate may be released by the commissioner, or
    47  conduct further review. This decision or review  shall  be  made  within
    48  five days of the receipt of the relevant records, files, information and
    49  documentation  from  the  commissioner. The chairperson's further review
    50  may include, but not be limited to, an appearance by the terminally  ill
    51  inmate  before  the  chairperson  or his or her designee. (c) After this
    52  further review, the chairperson shall either accept  the  commissioner's
    53  grant of medical parole, in which case the inmate may be released by the
    54  commissioner,  or  the  chairperson shall schedule an appearance for the
    55  terminally ill inmate before the board of parole.
        S. 4221                             6

     1    In the event the terminally ill inmate is scheduled to make an appear-
     2  ance before the board of parole pursuant to this subdivision, the matter
     3  shall be heard by a panel that does not include the chairperson  or  any
     4  member  of  the  board  of  parole who was involved in the review of the
     5  commissioner's determination.]
     6    §  2. Paragraph (a) of subdivision 1 of section 259-r of the executive
     7  law, as amended by section 38-l-1 of subpart A of part C of  chapter  62
     8  of the laws of 2011, is amended to read as follows:
     9    (a)  The  [board]  commissioner  shall  have  the  power to release on
    10  medical parole  any  inmate  serving  an  indeterminate  or  determinate
    11  sentence  of  imprisonment  who,  pursuant  to  subdivision  two of this
    12  section, has been certified to be suffering from a  terminal  condition,
    13  disease  or  syndrome  and  to  be so debilitated or incapacitated as to
    14  create a reasonable probability that he or she is physically  or  cogni-
    15  tively incapable of presenting any danger to society, provided, however,
    16  that  no inmate serving a sentence imposed upon a conviction for [murder
    17  in the first degree or an attempt or conspiracy to commit murder in  the
    18  first  degree  shall  be eligible for such release, and provided further
    19  that no inmate serving a sentence imposed upon a conviction for  any  of
    20  the  following offenses shall be eligible for such release unless in the
    21  case of an indeterminate sentence he or she has served at least one-half
    22  of the minimum period of the sentence and in the case of  a  determinate
    23  sentence  he  or  she has served at least one-half of the term of his or
    24  her determinate sentence:  murder in the second degree, manslaughter  in
    25  the  first  degree, any offense defined in article one hundred thirty of
    26  the penal law or an attempt to commit any of these offenses. Solely  for
    27  the  purpose  of determining medical parole eligibility pursuant to this
    28  section, such one-half  of  the  minimum  period  of  the  indeterminate
    29  sentence  and one-half of the term of the determinate sentence shall not
    30  be credited with any time served under the jurisdiction of  the  depart-
    31  ment  prior to the commencement of such sentence pursuant to the opening
    32  paragraph of subdivision one of section 70.30 of the penal law or subdi-
    33  vision two-a of section 70.30 of the penal law,  except  to  the  extent
    34  authorized  by  subdivision  three of section 70.30 of the penal law] an
    35  act of terrorism as defined in section 490.05 of the penal law, shall be
    36  eligible for such release.
    37    § 3. Section 259-s of the executive law, as amended by section 38-m of
    38  subpart A of part C of chapter 62 of the laws of  2011,  is  amended  to
    39  read as follows:
    40    §  259-s.  Release on medical parole for inmates suffering significant
    41  debilitating illnesses. 1. (a) The [board] commissioner shall  have  the
    42  power  to  release on medical parole any inmate serving an indeterminate
    43  or determinate sentence of imprisonment who, pursuant to subdivision two
    44  of this section, has been certified to be suffering from  a  significant
    45  and  permanent  non-terminal  condition,  disease  or  syndrome that has
    46  rendered the inmate so physically or cognitively debilitated or incapac-
    47  itated as to create a reasonable probability that he  or  she  does  not
    48  present any danger to society, provided, however, that no inmate serving
    49  a  sentence imposed upon a conviction for [murder in the first degree or
    50  an attempt or conspiracy to commit murder in the first degree  shall  be
    51  eligible for such release, and provided further that no inmate serving a
    52  sentence  imposed  upon  a  conviction for any of the following offenses
    53  shall be eligible for such release unless in the case of  an  indetermi-
    54  nate  sentence  he  or  she  has served at least one-half of the minimum
    55  period of the sentence and in the case of a determinate sentence  he  or
    56  she  has  served at least one-half of the term of his or her determinate
        S. 4221                             7

     1  sentence:   murder in the  second  degree,  manslaughter  in  the  first
     2  degree,  any  offense defined in article one hundred thirty of the penal
     3  law or an attempt to commit  any  of  these  offenses.  Solely  for  the
     4  purpose  of  determining  medical  parole  eligibility  pursuant to this
     5  section, such one-half  of  the  minimum  period  of  the  indeterminate
     6  sentence  and one-half of the term of the determinate sentence shall not
     7  be credited with any time served under the jurisdiction of  the  depart-
     8  ment  prior to the commencement of such sentence pursuant to the opening
     9  paragraph of subdivision one of section 70.30 of the penal law or subdi-
    10  vision two-a of section 70.30 of the penal law,  except  to  the  extent
    11  authorized  by  subdivision  three of section 70.30 of the penal law] an
    12  act of terrorism as defined in section 490.05 of the penal law, shall be
    13  eligible for such release.
    14    (b) Such release shall be granted only after the [board]  commissioner
    15  considers  whether, in light of the inmate's medical condition, there is
    16  a reasonable probability that the inmate, if  released,  will  live  and
    17  remain  at  liberty  without violating the law, and that such release is
    18  not incompatible with the welfare of society and will not  so  deprecate
    19  the  seriousness  of  the crime as to undermine respect for the law, and
    20  shall be subject to the limits and conditions specified  in  subdivision
    21  four  of this section. In making this determination, the [board] commis-
    22  sioner shall consider: (i) the nature and seriousness  of  the  inmate's
    23  crime;  (ii)  the  inmate's  prior  criminal  record; (iii) the inmate's
    24  disciplinary, behavioral and rehabilitative record during  the  term  of
    25  his or her incarceration; (iv) [the amount of time the inmate must serve
    26  before  becoming  eligible  for  release pursuant to section two hundred
    27  fifty-nine-i of this article; (v)] the current age of the inmate and his
    28  or her age at the time of the crime; [(vi) the  recommendations  of  the
    29  sentencing  court,  the district attorney and the victim or the victim's
    30  representative; (vii)] (v) the nature of the inmate's medical condition,
    31  disease or syndrome and the extent of medical treatment or care that the
    32  inmate will require as a result of that condition, disease or  syndrome;
    33  and  [(viii)]  (vi)  any  other  relevant factor. Except as set forth in
    34  paragraph (a) of this subdivision, such release may be  granted  at  any
    35  time  during the term of an inmate's sentence, notwithstanding any other
    36  provision of law.
    37    [(c) The board shall  afford  notice  to  the  sentencing  court,  the
    38  district  attorney,  the  attorney  for  the inmate and, where necessary
    39  pursuant to subdivision two of section two hundred fifty-nine-i of  this
    40  article,  the  crime  victim,  that  the  inmate is being considered for
    41  release pursuant to this section and the parties receiving notice  shall
    42  have  thirty  days  to  comment on the release of the inmate. Release on
    43  medical parole shall not be granted until the expiration of the  comment
    44  period provided for in this paragraph.]
    45    2.  (a)  The  commissioner, on the commissioner's own initiative or at
    46  the request of an inmate, or an inmate's spouse, relative  or  attorney,
    47  may,  in  the  exercise of the commissioner's discretion, direct that an
    48  investigation be undertaken to determine whether a diagnosis  should  be
    49  made  of  an  inmate  who appears to be suffering from a significant and
    50  permanent  non-terminal  and  incapacitating   condition,   disease   or
    51  syndrome.  Any  such  medical  diagnosis  shall  be  made by a physician
    52  licensed to practice medicine in this state pursuant to  section  sixty-
    53  five  hundred  twenty-four  of  the  education law. Such physician shall
    54  either be employed by the department, shall render professional services
    55  at the request of the department, or shall be employed by a hospital  or
    56  medical  facility  used  by  the department for the medical treatment of
        S. 4221                             8
     1  inmates. The diagnosis shall be reported to the commissioner  and  shall
     2  include  but  shall  not  be  limited to a description of the condition,
     3  disease or syndrome suffered by the inmate, a prognosis  concerning  the
     4  likelihood that the inmate will not recover from such condition, disease
     5  or  syndrome,  a description of the inmate's physical or cognitive inca-
     6  pacity which shall include a prediction respecting the  likely  duration
     7  of  the  incapacity,  and  a  statement  by the physician of whether the
     8  inmate is so debilitated or incapacitated as to be  severely  restricted
     9  in  his or her ability to self-ambulate or to perform significant normal
    10  activities of daily living. This report also shall include a recommenda-
    11  tion of the type and level of services and treatment  the  inmate  would
    12  require  if granted medical parole and a recommendation for the types of
    13  settings in which the services and treatment should be given.
    14    (b) The commissioner, or the commissioner's designee, shall review the
    15  diagnosis and may certify that the inmate is suffering from such  condi-
    16  tion, disease or syndrome and that the inmate is so debilitated or inca-
    17  pacitated  as to create a reasonable probability that he or she is phys-
    18  ically or cognitively incapable of presenting any danger to society.  If
    19  the commissioner does not so  certify  then  the  inmate  shall  not  be
    20  referred  to  the board for consideration for release on medical parole.
    21  If the commissioner does so certify, then the commissioner shall, within
    22  seven working days of receipt of such diagnosis, [refer  the  inmate  to
    23  the  board  for consideration for] release the inmate on medical parole.
    24  However, no such referral of an inmate to the [board of parole]  commis-
    25  sioner  shall be made unless the inmate has been examined by a physician
    26  and diagnosed as having a condition, disease or syndrome  as  previously
    27  described herein at some time subsequent to such inmate's admission to a
    28  facility operated by the department.
    29    (c)  [When  the  commissioner  refers an inmate to the board, the] The
    30  commissioner shall provide an appropriate medical discharge plan  estab-
    31  lished  by  the  department.  The  department  is  authorized to request
    32  assistance from the department of health and from the  county  in  which
    33  the  inmate  resided and committed his or her crime, which shall provide
    34  assistance with respect to  the  development  and  implementation  of  a
    35  discharge  plan,  including  potential  placements  of  a  releasee. The
    36  department and the department of health shall jointly develop  standards
    37  for  the  medical  discharge  plan that are appropriately adapted to the
    38  criminal justice setting, based on standards established by the  depart-
    39  ment  of  health for hospital medical discharge planning. [The board may
    40  postpone its decision pending completion of an adequate discharge  plan,
    41  or may deny release based on inadequacy of the discharge plan.]
    42    3.  Any certification by the commissioner or the commissioner's desig-
    43  nee pursuant to this section shall be deemed  a  judicial  function  and
    44  shall not be reviewable if done in accordance with law.
    45    4.  (a) Medical parole granted pursuant to this section shall be for a
    46  period of six months.
    47    (b) The [board] commissioner shall require as a condition  of  release
    48  on  medical parole that the releasee agree to remain under the care of a
    49  physician while on medical parole and in a hospital established pursuant
    50  to article twenty-eight of the public health law, a hospice  established
    51  pursuant  to  article forty of the public health law or any other place-
    52  ment, including a residence with family  or  others,  that  can  provide
    53  appropriate  medical  care  as  specified  in the medical discharge plan
    54  required by subdivision two of this section. The medical discharge  plan
    55  shall  state  that the availability of the placement has been confirmed,
    56  and by whom.  Notwithstanding any other provision of law, when an inmate
        S. 4221                             9
     1  who qualifies for release under this section is cognitively incapable of
     2  signing the requisite documentation to effectuate the medical  discharge
     3  plan  and,  after  a  diligent  search no person has been identified who
     4  could  otherwise  be  appointed  as  the inmate's guardian by a court of
     5  competent jurisdiction, then, solely for the purpose of implementing the
     6  medical discharge plan, the facility health  services  director  at  the
     7  facility  where  the  inmate is currently incarcerated shall be lawfully
     8  empowered to act as the inmate's guardian for the purpose of  effectuat-
     9  ing the medical discharge.
    10    (c)  Where  appropriate,  the  [board] commissioner shall require as a
    11  condition of release that medical parolees be  supervised  on  intensive
    12  caseloads at reduced supervision ratios.
    13    (d)  The  [board] commissioner shall require as a condition of release
    14  on medical parole that the releasee undergo  periodic  medical  examina-
    15  tions  and a medical examination at least one month prior to the expira-
    16  tion of the period of medical parole and, for the purposes of  making  a
    17  decision pursuant to paragraph (e) of this subdivision, that the releas-
    18  ee  provide  the  [board]  commissioner  with  a report, prepared by the
    19  treating physician, of the results  of  such  examination.  Such  report
    20  shall  specifically state whether or not the parolee continues to suffer
    21  from a significant and permanent non-terminal  and  debilitating  condi-
    22  tion, disease, or syndrome, and to be so debilitated or incapacitated as
    23  to  be  severely restricted in his or her ability to self-ambulate or to
    24  perform significant normal activities of daily living.
    25    (e) Prior to the expiration  of  the  period  of  medical  parole  the
    26  [board]   commissioner  shall  review  the  medical  examination  report
    27  required by paragraph (d)  of  this  subdivision  and  may  again  grant
    28  medical  parole  pursuant  to  this section; provided, however, that the
    29  provisions of paragraph (c) of subdivision one and  subdivision  two  of
    30  this section shall not apply.
    31    (f) If the updated medical report presented to the [board] commission-
    32  er  states that a parolee released pursuant to this section is no longer
    33  so debilitated or incapacitated as to create  a  reasonable  probability
    34  that  he  or  she  is  physically or cognitively incapable of presenting
    35  [any] a danger to society or if the releasee fails to submit the updated
    36  medical report then the [board] commissioner may not make a new grant of
    37  medical parole pursuant to paragraph (e) of this subdivision. Where  the
    38  [board]  commissioner  has  not  granted medical parole pursuant to such
    39  paragraph (e) the [board] commissioner shall promptly  conduct  [through
    40  one  of  its  members,]  or  cause  to be conducted by a hearing officer
    41  [designated by the board,] a hearing to determine whether  the  releasee
    42  is suffering from a significant and permanent non-terminal and incapaci-
    43  tating condition, disease or syndrome and is so debilitated or incapaci-
    44  tated as to create a reasonable probability that he or she is physically
    45  or  cognitively  incapable  of presenting any danger to society and does
    46  not present a danger to society. If the [board] commissioner makes  such
    47  a  determination  then  [it]  he  or she may make a new grant of medical
    48  parole pursuant to the standards of paragraph (b) of subdivision one  of
    49  this  section.  At  the  hearing,  the  releasee shall have the right to
    50  representation by counsel, including  the  right,  if  the  releasee  is
    51  financially  unable  to  retain  counsel,  to have the appropriate court
    52  assign counsel in accordance with the county or city plan for  represen-
    53  tation  placed in operation pursuant to article eighteen-B of the county
    54  law.
    55    (g) The hearing and determination provided for  by  paragraph  (f)  of
    56  this  subdivision  shall  be  concluded  within  the six month period of
        S. 4221                            10
     1  medical parole. If the [board] commissioner does not renew the grant  of
     2  medical parole, [it] he or she shall order that the releasee be returned
     3  immediately to the custody of the department of correctional services.
     4    (h)  In  addition to the procedures set forth in paragraph (f) of this
     5  subdivision, medical parole may be revoked at any time upon any  of  the
     6  grounds  specified  in paragraph (a) of subdivision three of section two
     7  hundred fifty-nine-i of this article, and in accordance with the  proce-
     8  dures specified in subdivision three of section two hundred fifty-nine-i
     9  of this article.
    10    (i)  A  releasee who is on medical parole and who becomes eligible for
    11  parole pursuant to the provisions of  subdivision  two  of  section  two
    12  hundred  fifty-nine-i  of  this  article  shall  be  eligible for parole
    13  consideration pursuant to such subdivision.
    14    5. A denial of release on medical  parole  or  expiration  of  medical
    15  parole in accordance with the provisions of paragraph (f) of subdivision
    16  four  of  this section shall not preclude the inmate from reapplying for
    17  medical parole or otherwise affect an inmate's eligibility for any other
    18  form of release provided for by law.
    19    6. To the extent that any provision of this section  requires  disclo-
    20  sure of medical information for the purpose of processing an application
    21  or  making a decision, regarding release on medical parole or renewal of
    22  medical parole, or for the purpose of appropriately supervising a person
    23  released on medical parole, and that such disclosure would otherwise  be
    24  prohibited  by  article  twenty-seven-F  of  the  public health law, the
    25  provisions of this section shall be controlling.
    26    7. The commissioner [and the chair of the board] shall  be  authorized
    27  to  promulgate  rules  and regulations for [their] his or her respective
    28  [agencies] agency to implement the provisions of this section.
    29    8. Any decision made by the  [board]  commissioner  pursuant  to  this
    30  section  may  be  appealed  pursuant  to subdivision four of section two
    31  hundred fifty-nine-i of this article.
    32    9. The [chair of the board] commissioner shall report annually to  the
    33  governor,  the  temporary president of the senate and the speaker of the
    34  assembly, the chairpersons of the assembly and senate codes  committees,
    35  the  chairperson  of the senate crime and corrections committee, and the
    36  chairperson of the assembly corrections committee the number of  inmates
    37  who  have  applied for medical parole under this section; the number who
    38  have been granted medical parole; the  nature  of  the  illness  of  the
    39  applicants, the counties to which they have been released and the nature
    40  of  the placement pursuant to the medical discharge plan; the categories
    41  of reasons for denial for those who have  been  denied;  the  number  of
    42  releasees  who  have  been  granted  an  additional period or periods of
    43  medical parole and the number of such grants; the number of releasees on
    44  medical parole who have been returned to imprisonment in the custody  of
    45  the department and the reasons for return.
    46    §  4.  This act shall take effect immediately, provided, however, that
    47  the amendments to paragraph (a) of subdivision 1 of section 259-r of the
    48  executive law made by section one of this act shall be  subject  to  the
    49  expiration  and reversion of such paragraph pursuant to subdivision d of
    50  section 74 of chapter 3 of the laws of 1995, as amended, when upon  such
    51  date the provisions of section two of this act shall take effect.