2023 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.