NY Exec L § 259-R (2021)
2021 New York Laws EXC - Executive Article 12-B - State Board of Parole 259-R - Release on Medical Parole for Terminally Ill Incarcerated Individuals.

§ 259-r.  Release  on  medical  parole for terminally ill incarcerated individuals. 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  terminal condition, disease or syndrome and to be 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,  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.   * NB Effective until September 1, 2023   * (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  terminal  condition,  disease  or syndrome  and  to  be  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, 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.   * NB Effective September 1, 2023  (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. 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 and the attorney for the incarcerated individual  that the  incarcerated individual is being considered for release pursuant to this section and the parties receiving notice shall have fifteen 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  terminal  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 terminal condition, disease or syndrome suffered by the incarcerated  individual,  a  prognosis  concerning  the likelihood  that  the incarcerated individual will not recover from such terminal  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  terminal  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  shall  be made unless the incarcerated individual has been examined by a physician and diagnosed as  having  a  terminal  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 of correctional services.  (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 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  terminal 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 terminal 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.  (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 chairman 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  chairman 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; 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.   10.  Notwithstanding  any  other  provision  of law, in the case of an incarcerated individual whose terminal condition,  disease  or  syndrome meets  the  criteria for medical parole as set forth in paragraph (a) of subdivision one of this section, and who is not serving a  sentence  for one  or  more  offenses set forth in paragraph (i) of subdivision one of section eight hundred six of the correction law which would render  such incarcerated individual ineligible for presumptive release, the granting of  medical parole shall be determined by the commissioner provided that a release of such incarcerated individual shall be  in  accordance  with subdivision  eleven  of  this section. In such case, the provisions that would have applied to and the procedures that would have  been  followed by  the  board  of parole pursuant to this section shall apply to and be followed by the commissioner.   11. (a) After the commissioner  has  made  a  determination  to  grant medical  parole  pursuant  to  subdivision  ten  of  this  section,  the commissioner shall notify the chairperson of the  board  of  parole,  or their designee who shall be a member of the board of parole, and provide him   or   her   with  all  relevant  records,  files,  information  and documentation, which  includes  but  is  not  limited  to  the  criminal history,  medical  diagnosis  and treatment pertaining to the terminally ill incarcerated individual no more than five days from the date of  the determination.  (b)  The chairperson or his or her designee shall either accept the commissioner's grant of medical parole,  in  which  case  the incarcerated  individual may be released by the commissioner, or conduct further review. This decision or review shall be made within  five  days of   the  receipt  of  the  relevant  records,  files,  information  and documentation from the commissioner. The  chairperson's  further  review may  include, but not be limited to, an appearance by the terminally ill incarcerated individual before the chairperson or his or  her  designee. (c)  After  this further review, the chairperson shall either accept the commissioner's grant of medical parole, in which case  the  incarcerated individual may be released by the commissioner, or the chairperson shall schedule  an  appearance  for the terminally ill incarcerated individual before the board of parole.   In the event the terminally ill incarcerated individual  is  scheduled to  make  an  appearance  before  the  board  of parole pursuant to this subdivision, the matter shall be heard by a panel that does not  include  the chairperson or any member of the board of parole who was involved in the review of the commissioner's determination.