NY Exec L § 259-S (2021)
2021 New York Laws EXC - Executive Article 12-B - State Board of Parole 259-S - Release on Medical Parole for Incarcerated Individuals Suffering Significant Debilitating Illnesses.

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