N.Y. Executive Law § 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, 2027

* (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, 2027

(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.