N.Y. Executive Law § 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.