A10343 Summary:

BILL NOA10343
 
SAME ASNo Same As
 
SPONSORWeprin
 
COSPNSR
 
MLTSPNSR
 
Amd §§259-r & 259-s, Exec L
 
Relates to improving the medical parole certification and consideration process for inmates suffering from terminal or debilitating illnesses.
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A10343 Actions:

BILL NOA10343
 
04/12/2018referred to correction
05/31/2018reported referred to codes
06/11/2018reported referred to rules
06/13/2018reported
06/13/2018rules report cal.185
06/13/2018ordered to third reading rules cal.185
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A10343 Committee Votes:

CORRECTION Chair:Weprin DATE:05/31/2018AYE/NAY:8/3 Action: Favorable refer to committee Codes
WeprinAyeGiglioNay
OrtizAyeFinchNay
ColtonAyePalmesanoNay
RozicAye
DavilaAye
MosleyAye
BlakeExcused
WalkerAye
De La RosaAye

CODES Chair:Lentol DATE:06/11/2018AYE/NAY:14/6 Action: Favorable refer to committee Rules
LentolAyeCurranNay
SchimmingerAyeGiglioNay
PretlowAyeMontesanoNay
CookAyeMorinelloNay
CymbrowitzAyePalumboNay
TitusAyeGarbarinoNay
O'DonnellExcused
LavineAye
PerryAye
ZebrowskiExcused
AbinantiAye
WeprinAye
MosleyAye
HevesiAye
FahyAye
SeawrightAye

RULES Chair:Heastie DATE:06/13/2018AYE/NAY:29/0 Action: Favorable
HeastieAyeKolbAye
GottfriedAyeOaksAye
LentolAyeButlerAye
GanttExcusedCrouchAye
NolanAyeFinchAye
WeinsteinAyeBarclayAye
HooperExcusedRaiaAye
OrtizAyeHawleyAye
PretlowAye
CookAye
GlickAye
MorelleAye
AubryAye
EnglebrightAye
DinowitzAye
ColtonAye
MagnarelliAye
PerryAye
GalefAye
PaulinAye
TitusAye
Peoples-StokesAye
BenedettoAye

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A10343 Floor Votes:

There are no votes for this bill in this legislative session.
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A10343 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          10343
 
                   IN ASSEMBLY
 
                                     April 12, 2018
                                       ___________
 
        Introduced  by M. of A. WEPRIN -- (at request of the Board of Parole) --
          read once and referred to the Committee on Correction
 
        AN ACT to amend the executive law, in relation to improving the  medical
          parole certification and consideration process
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Section 259-r of the executive law, as amended  by  section
     2  38-1  of subpart A of part C of chapter 62 of the laws of 2011, subdivi-
     3  sions 10 and 11 as added by section 1 of part A of  chapter  55  of  the
     4  laws of 2015, is amended to read as follows:
     5    § 259-r.  Release on medical parole for terminally ill inmates. 1. (a)
     6  The board shall have the power to release on medical parole  any  inmate
     7  serving  an  indeterminate  or determinate sentence of imprisonment who,
     8  pursuant to subdivision two of this section, has been  certified  to  be
     9  suffering  from  a terminal condition, disease or syndrome [and to be so
    10  debilitated or incapacitated as to create a reasonable probability  that
    11  he  or  she  is  physically  or  cognitively incapable of presenting any
    12  danger to society], provided, however, that no inmate serving a sentence
    13  imposed upon a conviction for murder in  the  first  degree,  aggravated
    14  murder  or an attempt or conspiracy to commit murder in the first degree
    15  or aggravated murder or a sentence  of  life  without  parole  shall  be
    16  eligible for such release, and provided further that no inmate serving a
    17  sentence  imposed  upon  a  conviction for any of the following offenses
    18  shall be eligible for such release unless in the case of  an  indetermi-
    19  nate  sentence  he  or  she  has served at least one-half of the minimum
    20  period of the sentence and in the case of a determinate sentence  he  or
    21  she  has  served at least one-half of the term of his or her determinate
    22  sentence:   murder in the  second  degree,  manslaughter  in  the  first
    23  degree,  any  offense defined in article one hundred thirty of the penal
    24  law or an attempt to commit  any  of  these  offenses.  Solely  for  the
    25  purpose  of  determining  medical  parole  eligibility  pursuant to this
    26  section, such one-half  of  the  minimum  period  of  the  indeterminate
    27  sentence  and one-half of the term of the determinate sentence shall not
    28  be credited with any time served under the jurisdiction of  the  depart-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD14397-01-8

        A. 10343                            2
 
     1  ment  prior to the commencement of such sentence pursuant to the opening
     2  paragraph of subdivision one of section 70.30 of the penal law or subdi-
     3  vision two-a of section 70.30 of the penal law,  except  to  the  extent
     4  authorized by subdivision three of section 70.30 of the penal law.
     5    (b)  Such  release  shall  be  granted  only after the board considers
     6  whether, in light of the inmate's medical condition, there is a  reason-
     7  able  probability  that the inmate, if released, will live and remain at
     8  liberty without violating the law, and that such release is  not  incom-
     9  patible  with the welfare of society and will not so deprecate the seri-
    10  ousness of the crime as to undermine respect for the law, and  shall  be
    11  subject  to  the  limits and conditions specified in subdivision four of
    12  this section. In making this determination, the  board  shall  consider:
    13  (i)  the  factors  described  in  subdivision two of section two hundred
    14  fifty-nine-i of this article; (ii) the nature of  the  inmate's  medical
    15  condition,  disease  or  syndrome and the extent of medical treatment or
    16  care that the inmate will require as a result of that condition, disease
    17  or syndrome; (iii) the amount of  time  the  inmate  must  serve  before
    18  becoming  eligible  for  release  pursuant to section two hundred fifty-
    19  nine-i of this article; (iv) the current age of the inmate  and  his  or
    20  her  age  at  the  time of the crime; and (v) any other relevant factor.
    21  Except as set forth in paragraph (a) of this subdivision,  such  release
    22  may  be  granted  at  any  time during the term of an inmate's sentence,
    23  notwithstanding any other provision of law.
    24    (c) The board  shall  afford  notice  to  the  sentencing  court,  the
    25  district  attorney  [and], the attorney for the inmate and, where neces-
    26  sary pursuant to subdivision two of section two hundred fifty-nine-i  of
    27  this  article, the crime victim, that the inmate is being considered for
    28  release pursuant to this section and the parties receiving notice  shall
    29  have  fifteen  days  to comment on the release of the inmate. Release on
    30  medical parole shall not be granted until the expiration of the  comment
    31  period provided for in this paragraph.
    32    2.  (a)  The  commissioner, on the commissioner's own initiative or at
    33  the request of an inmate, or an inmate's spouse, relative  or  attorney,
    34  may,  in  the  exercise of the commissioner's discretion, direct that an
    35  investigation be undertaken to determine whether a diagnosis  should  be
    36  made of an inmate who appears to be suffering from a terminal condition,
    37  disease  or  syndrome.  Any  such  medical  diagnosis shall be made by a
    38  physician licensed to  practice  medicine  in  this  state  pursuant  to
    39  section sixty-five hundred twenty-four of the education law. Such physi-
    40  cian  shall  either  be employed by the department, shall render profes-
    41  sional services at the request of the department, or shall  be  employed
    42  by a hospital or medical facility used by the department for the medical
    43  treatment of inmates. The diagnosis shall be reported to the commission-
    44  er  and  shall  include but shall not be limited to a description of the
    45  terminal condition, disease or syndrome suffered by the inmate, a  prog-
    46  nosis  concerning  the  likelihood that the inmate will not recover from
    47  such terminal condition, disease  or  syndrome,  a  description  of  the
    48  inmate's  physical or cognitive incapacity which shall include a predic-
    49  tion respecting the likely duration of the incapacity, and  a  statement
    50  by  the  physician  of whether the inmate is so debilitated or incapaci-
    51  tated as to be severely restricted in his or her ability  to  self-ambu-
    52  late  or  to perform significant normal activities of daily living. This
    53  report also shall include a recommendation of  the  type  and  level  of
    54  services  and  treatment  the  inmate  would  require if granted medical
    55  parole and a recommendation for the  types  of  settings  in  which  the
    56  services and treatment should be given.

        A. 10343                            3
 
     1    (b) The commissioner, or the commissioner's designee, shall review the
     2  diagnosis  and may certify that the inmate is suffering from such termi-
     3  nal condition, disease or syndrome [and that the inmate  is  so  debili-
     4  tated  or incapacitated as to create a reasonable probability that he or
     5  she  is  physically or cognitively incapable of presenting any danger to
     6  society]. If the commissioner does not so certify then the inmate  shall
     7  not  be  referred  to the board for consideration for release on medical
     8  parole. If the commissioner  does  so  certify,  then  the  commissioner
     9  shall, within seven working days of receipt of such diagnosis, refer the
    10  inmate  to  the  board  for consideration for release on medical parole.
    11  However, no such referral of an inmate to the board shall be made unless
    12  the inmate has been examined by a physician and diagnosed  as  having  a
    13  terminal  condition,  disease or syndrome as previously described herein
    14  at some time subsequent to such inmate's admission to a  facility  oper-
    15  ated by the department of correctional services.
    16    (c)  When  the commissioner refers an inmate to the board, the commis-
    17  sioner shall provide an appropriate medical discharge  plan  established
    18  by  the  department.  The department is authorized to request assistance
    19  from the department of health and from the county in  which  the  inmate
    20  resided  and  committed his or her crime, which shall provide assistance
    21  with respect to the development and implementation of a discharge  plan,
    22  including  potential  placements  of  a releasee. The department and the
    23  department of health shall jointly develop  standards  for  the  medical
    24  discharge  plan  that  are appropriately adapted to the criminal justice
    25  setting, based on standards established by the department of health  for
    26  hospital medical discharge planning. The board may postpone its decision
    27  pending  completion  of  an adequate discharge plan, or may deny release
    28  based on inadequacy of the discharge plan.
    29    3. Any certification by the commissioner or the commissioner's  desig-
    30  nee  pursuant to this section shall be [deeemed] deemed a judicial func-
    31  tion and shall not be reviewable if done in accordance with law.
    32    4. (a) [Medical parole granted pursuant to this section shall be for a
    33  period of six months.] Once an inmate is  released  on  medical  parole,
    34  that  inmate will then be supervised by the department pursuant to para-
    35  graph (b) of subdivision two of section two hundred fifty-nine-i of this
    36  article.
    37    (b) The board [shall] may require as a condition of release on medical
    38  parole that the releasee agree to remain under the care of  a  physician
    39  while  on medical parole and in a hospital established pursuant to arti-
    40  cle twenty-eight of the public health law, a hospice established  pursu-
    41  ant  to  article  forty  of the public health law or any other placement
    42  that can provide appropriate medical care as specified  in  the  medical
    43  discharge  plan required by subdivision two of this section. The medical
    44  discharge plan shall state that the availability of  the  placement  has
    45  been confirmed, and by whom. Notwithstanding any other provision of law,
    46  when  an  inmate  who qualifies for release under this section is cogni-
    47  tively incapable of signing the requisite  documentation  to  effectuate
    48  the  medical  discharge  plan and, after a diligent search no person has
    49  been identified who could otherwise be appointed as the inmate's guardi-
    50  an by a court of competent jurisdiction, then, solely for the purpose of
    51  implementing the medical discharge plan, the  facility  health  services
    52  director  at  the  facility  where  the inmate is currently incarcerated
    53  shall be lawfully empowered to act as  the  inmate's  guardian  for  the
    54  purpose of effectuating the medical discharge.

        A. 10343                            4
 
     1    (c)  Where  appropriate,  the  board  shall  require as a condition of
     2  release that medical parolees be supervised on  intensive  caseloads  at
     3  reduced supervision ratios.
     4    (d)  [The  board  shall  require  as a condition of release on medical
     5  parole that the releasee undergo periodic  medical  examinations  and  a
     6  medical  examination  at  least one month prior to the expiration of the
     7  period of medical parole and, for the  purposes  of  making  a  decision
     8  pursuant to paragraph (e) of this subdivision, that the releasee provide
     9  the  board  with  a  report,  prepared by the treating physician, of the
    10  results of such examination. Such report shall specifically state wheth-
    11  er or not the parolee continues to suffer  from  a  terminal  condition,
    12  disease, or syndrome, and to be so debilitated or incapacitated as to be
    13  severely restricted in his or her ability to self-ambulate or to perform
    14  significant normal activities of daily living.
    15    (e)  Prior to the expiration of the period of medical parole the board
    16  shall review the medical examination report required by paragraph (d) of
    17  this subdivision and may again grant medical  parole  pursuant  to  this
    18  section;  provided,  however,  that  the  provisions of paragraph (c) of
    19  subdivision one and subdivision two of this section shall not apply.
    20    (f) If the updated medical report presented to the board states that a
    21  parolee released pursuant to this section is no longer so debilitated or
    22  incapacitated as to create a reasonable probability that he  or  she  is
    23  physically  or cognitively incapable of presenting any danger to society
    24  or if the releasee fails to submit the updated medical report  then  the
    25  board  may  not make a new grant of medical parole pursuant to paragraph
    26  (e) of this subdivision. Where the board has not granted medical  parole
    27  pursuant  to such paragraph (e) the board shall promptly conduct through
    28  one of its members, or cause to be conducted by a hearing officer desig-
    29  nated by the board, a hearing  to  determine  whether  the  releasee  is
    30  suffering  from  a  terminal  condition,  disease  or syndrome and is so
    31  debilitated or incapacitated as to create a reasonable probability  that
    32  he  or  she  is  physically  or  cognitively incapable of presenting any
    33  danger to society and does not present a danger to society. If the board
    34  makes such a determination then it may  make  a  new  grant  of  medical
    35  parole  pursuant to the standards of paragraph (b) of subdivision one of
    36  this section. At the hearing, the  releasee  shall  have  the  right  to
    37  representation  by  counsel,  including  the  right,  if the releasee is
    38  financially unable to retain counsel,  to  have  the  appropriate  court
    39  assign  counsel in accordance with the county or city plan for represen-
    40  tation placed in operation pursuant to article eighteen-B of the  county
    41  law.
    42    (g)  The  hearing  and  determination provided for by paragraph (f) of
    43  this subdivision shall be concluded  within  the  six  month  period  of
    44  medical parole. If the board does not renew the grant of medical parole,
    45  it  shall order that the releasee be returned immediately to the custody
    46  of the department.
    47    (h) In addition to the procedures set forth in paragraph (f)  of  this
    48  subdivision, medical] Medical parole may be revoked at any time upon any
    49  of  the  grounds  specified  in  paragraph  (a)  of subdivision three of
    50  section two hundred fifty-nine-i of this article, and in accordance with
    51  the procedures specified in subdivision three  of  section  two  hundred
    52  fifty-nine-i of this article.
    53    [(i)  A releasee who is on medical parole and who becomes eligible for
    54  parole pursuant to the provisions of  subdivision  two  of  section  two
    55  hundred  fifty-nine-i  of  this  article  shall  be  eligible for parole
    56  consideration pursuant to such subdivision.]

        A. 10343                            5

     1    5. A denial of release on medical parole  [or  expiration  of  medical
     2  parole in accordance with the provisions of paragraph (f) of subdivision
     3  four  of this section] shall not preclude the inmate from reapplying for
     4  medical parole or otherwise affect an inmate's eligibility for any other
     5  form of release provided for by law.
     6    6.  To  the extent that any provision of this section requires disclo-
     7  sure of medical information for the purpose of processing an application
     8  or making a decision, regarding release on medical parole [or renewal of
     9  medical parole,] or for  the  purpose  of  appropriately  supervising  a
    10  person released on medical parole, and that such disclosure would other-
    11  wise  be  prohibited by article twenty-seven-F of the public health law,
    12  the provisions of this section shall be controlling.
    13    7. The commissioner and the chairman of the board shall be  authorized
    14  to  promulgate  rules  and  regulations for their respective agencies to
    15  implement the provisions of this section.
    16    8. Any decision made by the board pursuant  to  this  section  may  be
    17  appealed   pursuant   to   subdivision   four  of  section  two  hundred
    18  fifty-nine-i of this article.
    19    9. The chairman shall report annually to the governor,  the  temporary
    20  president  of  the  senate  and  the speaker of the assembly, the chair-
    21  persons of the assembly and senate codes committees, the chairperson  of
    22  the  senate  crime and corrections committee, and the chairperson of the
    23  assembly corrections committee the number of inmates  who  have  applied
    24  for medical parole; the number who have been granted medical parole; the
    25  nature of the illness of the applicants, the counties to which they have
    26  been  released  and  the nature of the placement pursuant to the medical
    27  discharge plan; the categories of reasons for denial for those who  have
    28  been  denied;  [the  number  of releasees who have been granted an addi-
    29  tional period or periods of  medical  parole  and  the  number  of  such
    30  grants;]  the  number  of  releasees  on  medical  parole  who have been
    31  returned to imprisonment in  the  custody  of  the  department  and  the
    32  reasons for return.
    33    10.  Notwithstanding  any  other  provision  of law, in the case of an
    34  inmate whose terminal condition, disease or syndrome meets the  criteria
    35  for  medical  parole as set forth in paragraph (a) of subdivision one of
    36  this section, and who is not serving a sentence for one or more offenses
    37  set forth in paragraph (i) of subdivision one of section  eight  hundred
    38  six  of the correction law which would render such inmate ineligible for
    39  presumptive release, the granting of medical parole shall be  determined
    40  by  the  commissioner provided that a release of such inmate shall be in
    41  accordance with subdivision eleven of this section. In  such  case,  the
    42  provisions that would have applied to and the procedures that would have
    43  been  followed  by  the  board  of parole pursuant to this section shall
    44  apply to and be followed by the commissioner.
    45    11. (a) After the commissioner  has  made  a  determination  to  grant
    46  medical  parole pursuant to subdivision ten of this section, the commis-
    47  sioner shall notify the chairperson of the board  of  parole,  or  their
    48  designee  who  shall be a member of the board of parole, and provide him
    49  or her with all relevant records, files, information and  documentation,
    50  which includes but is not limited to the criminal history, medical diag-
    51  nosis and treatment pertaining to the terminally ill inmate no more than
    52  five days from the date of the determination. (b) The chairperson or his
    53  or  her designee shall either accept the commissioner's grant of medical
    54  parole, in which case the inmate may be released by the commissioner, or
    55  conduct further review. This decision or review  shall  be  made  within
    56  five days of the receipt of the relevant records, files, information and

        A. 10343                            6
 
     1  documentation  from  the  commissioner. The chairperson's further review
     2  may include, but not be limited to, an appearance by the terminally  ill
     3  inmate  before  the  chairperson  or his or her designee. (c) After this
     4  further  review,  the chairperson shall either accept the commissioner's
     5  grant of medical parole, in which case the inmate may be released by the
     6  commissioner, or the chairperson shall schedule an  appearance  for  the
     7  terminally ill inmate before the board of parole.
     8    In the event the terminally ill inmate is scheduled to make an appear-
     9  ance before the board of parole pursuant to this subdivision, the matter
    10  shall  be  heard by a panel that does not include the chairperson or any
    11  member of the board of parole who was involved  in  the  review  of  the
    12  commissioner's determination.
    13    §  2. Paragraph (a) of subdivision 1 of section 259-r of the executive
    14  law, as amended by section 38-l-1 of subpart A of part C of  chapter  62
    15  of the laws of 2011, is amended to read as follows:
    16    (a)  The  board  shall have the power to release on medical parole any
    17  inmate serving an indeterminate or determinate sentence of  imprisonment
    18  who,  pursuant to subdivision two of this section, has been certified to
    19  be suffering from a terminal condition, disease or syndrome [and  to  be
    20  so  debilitated  or  incapacitated as to create a reasonable probability
    21  that he or she is physically or cognitively incapable of presenting  any
    22  danger to society], provided, however, that no inmate serving a sentence
    23  imposed  upon  a  conviction  for murder in the first degree, aggravated
    24  murder or an attempt or conspiracy to commit murder in the first  degree
    25  or  aggravated  murder  or  a  sentence  of life without parole shall be
    26  eligible for such release, and provided further that no inmate serving a
    27  sentence imposed upon a conviction for any  of  the  following  offenses
    28  shall  be  eligible for such release unless in the case of an indetermi-
    29  nate sentence he or she has served at  least  one-half  of  the  minimum
    30  period  of  the sentence and in the case of a determinate sentence he or
    31  she has served at least one-half of the term of his or  her  determinate
    32  sentence:    murder  in  the  second  degree,  manslaughter in the first
    33  degree, any offense defined in article one hundred thirty of  the  penal
    34  law  or  an  attempt  to  commit  any  of these offenses. Solely for the
    35  purpose of determining  medical  parole  eligibility  pursuant  to  this
    36  section,  such  one-half  of  the  minimum  period  of the indeterminate
    37  sentence and one-half of the term of the determinate sentence shall  not
    38  be  credited  with any time served under the jurisdiction of the depart-
    39  ment prior to the commencement of such sentence pursuant to the  opening
    40  paragraph of subdivision one of section 70.30 of the penal law or subdi-
    41  vision  two-a  of  section  70.30 of the penal law, except to the extent
    42  authorized by subdivision three of section 70.30 of the penal law.
    43    § 3. Section 259-s the executive law, as amended by  section  38-m  of
    44  subpart  A  of  part  C of chapter 62 of the laws of 2011, is amended to
    45  read as follows:
    46    § 259-s. Release on medical parole for inmates  suffering  significant
    47  debilitating illnesses. 1. (a) The board shall have the power to release
    48  on  medical  parole  any  inmate serving an indeterminate or determinate
    49  sentence of imprisonment  who,  pursuant  to  subdivision  two  of  this
    50  section,  has  been  certified  to  be  suffering from a significant and
    51  permanent non-terminal condition, disease or syndrome that has  rendered
    52  the  inmate  [so] significantly physically or cognitively debilitated or
    53  incapacitated [as to create a reasonable probability that he or she does
    54  not present any danger to society], provided, however,  that  no  inmate
    55  serving  a  sentence  imposed  upon a conviction for murder in the first
    56  degree, aggravated murder or an attempt or conspiracy to  commit  murder

        A. 10343                            7
 
     1  in  the  first degree or aggravated murder or a sentence of life without
     2  parole shall be eligible for such release, and provided further that  no
     3  inmate  serving  a  sentence  imposed  upon  a conviction for any of the
     4  following offenses shall be eligible for such release unless in the case
     5  of  an  indeterminate sentence he or she has served at least one-half of
     6  the minimum period of the sentence and in  the  case  of  a  determinate
     7  sentence  he  or  she has served at least one-half of the term of his or
     8  her determinate sentence:  murder in the second degree, manslaughter  in
     9  the  first  degree, any offense defined in article one hundred thirty of
    10  the penal law or an attempt to commit any of these offenses. Solely  for
    11  the  purpose  of determining medical parole eligibility pursuant to this
    12  section, such one-half  of  the  minimum  period  of  the  indeterminate
    13  sentence  and one-half of the term of the determinate sentence shall not
    14  be credited with any time served under the jurisdiction of  the  depart-
    15  ment  prior to the commencement of such sentence pursuant to the opening
    16  paragraph of subdivision one of section 70.30 of the penal law or subdi-
    17  vision two-a of section 70.30 of the penal law,  except  to  the  extent
    18  authorized by subdivision three of section 70.30 of the penal law.
    19    (b)  Such  release  shall  be  granted  only after the board considers
    20  whether, in light of the inmate's medical condition, there is a  reason-
    21  able  probability  that the inmate, if released, will live and remain at
    22  liberty without violating the law, and that such release is  not  incom-
    23  patible  with the welfare of society and will not so deprecate the seri-
    24  ousness of the crime as to undermine respect for the law, and  shall  be
    25  subject  to  the  limits and conditions specified in subdivision four of
    26  this section. In making this determination, the  board  shall  consider:
    27  (i) [the nature and seriousness of the inmate's crime; (ii) the inmate's
    28  prior  criminal  record; (iii) the inmate's disciplinary, behavioral and
    29  rehabilitative record during the term of his or her incarceration; (iv)]
    30  the factors described in subdivision two of section two  hundred  fifty-
    31  nine-i  of  this article; (ii) the nature of the inmate's medical condi-
    32  tion, disease or syndrome and the extent of medical  treatment  or  care
    33  that  the  inmate will require as a result of that condition, disease or
    34  syndrome; (iii) the amount of time the inmate must serve before becoming
    35  eligible for release pursuant to section  two  hundred  fifty-nine-i  of
    36  this  article;  [(v)]  (iv) the current age of the inmate and his or her
    37  age at the time of the crime; [(vi) the recommendations of the  sentenc-
    38  ing  court,  the district attorney and the victim or the victim's repre-
    39  sentative; (vii) the nature of the inmate's medical  condition,  disease
    40  or  syndrome and the extent of medical treatment or care that the inmate
    41  will require as a result of that condition, disease  or  syndrome;]  and
    42  [(viii)] (v) any other relevant factor. Except as set forth in paragraph
    43  (a)  of this subdivision, such release may be granted at any time during
    44  the term of an inmate's sentence, notwithstanding any other provision of
    45  law.
    46    (c) The board  shall  afford  notice  to  the  sentencing  court,  the
    47  district  attorney,  the  attorney  for  the inmate and, where necessary
    48  pursuant to subdivision two of section two hundred fifty-nine-i of  this
    49  article,  the  crime  victim,  that  the  inmate is being considered for
    50  release pursuant to this section and the parties receiving notice  shall
    51  have  thirty  days  to  comment on the release of the inmate. Release on
    52  medical parole shall not be granted until the expiration of the  comment
    53  period provided for in this paragraph.
    54    2.  (a)  The  commissioner, on the commissioner's own initiative or at
    55  the request of an inmate, or an inmate's spouse, relative  or  attorney,
    56  may,  in  the  exercise of the commissioner's discretion, direct that an

        A. 10343                            8
 
     1  investigation be undertaken to determine whether a diagnosis  should  be
     2  made  of  an  inmate  who appears to be suffering from a significant and
     3  permanent  non-terminal  and  incapacitating   condition,   disease   or
     4  syndrome.  Any  such  medical  diagnosis  shall  be  made by a physician
     5  licensed to practice medicine in this state pursuant to  section  sixty-
     6  five  hundred  twenty-four  of  the  education law. Such physician shall
     7  either be employed by the department, shall render professional services
     8  at the request of the department, or shall be employed by a hospital  or
     9  medical  facility  used  by  the department for the medical treatment of
    10  inmates. The diagnosis shall be reported to the commissioner  and  shall
    11  include  but  shall  not  be  limited to a description of the condition,
    12  disease or syndrome suffered by the inmate, a prognosis  concerning  the
    13  likelihood that the inmate will not recover from such condition, disease
    14  or  syndrome,  a description of the inmate's physical or cognitive inca-
    15  pacity which shall include a prediction respecting the  likely  duration
    16  of  the  incapacity,  and  a  statement  by the physician of whether the
    17  inmate is so debilitated or incapacitated as to be  severely  restricted
    18  in  his or her ability to self-ambulate or to perform significant normal
    19  activities of daily living. This report also shall include a recommenda-
    20  tion of the type and level of services and treatment  the  inmate  would
    21  require  if granted medical parole and a recommendation for the types of
    22  settings in which the services and treatment should be given.
    23    (b) The commissioner, or the commissioner's designee, shall review the
    24  diagnosis and may certify that the inmate is suffering from such signif-
    25  icant and permanent non-terminal condition,  disease  or  syndrome  [and
    26  that  the  inmate  is  so  debilitated  or  incapacitated as to create a
    27  reasonable probability that he or she is physically or cognitively inca-
    28  pable of presenting any danger  to  society]  and  that  the  inmate  is
    29  significantly  physically  or  cognitively debilitated or incapacitated.
    30  If the commissioner does not so certify then the  inmate  shall  not  be
    31  referred  to  the board for consideration for release on medical parole.
    32  If the commissioner does so certify, then the commissioner shall, within
    33  seven working days of receipt of such diagnosis, refer the inmate to the
    34  board for consideration for release on medical parole. However, no  such
    35  referral  of  an  inmate to the board of parole shall be made unless the
    36  inmate has been examined by a physician and diagnosed as having a condi-
    37  tion, disease or syndrome as previously described herein  at  some  time
    38  subsequent  to  such  inmate's  admission  to a facility operated by the
    39  department.
    40    (c) When the commissioner refers an inmate to the board,  the  commis-
    41  sioner  shall  provide an appropriate medical discharge plan established
    42  by the department. The department is authorized  to  request  assistance
    43  from  the  department  of health and from the county in which the inmate
    44  resided and committed his or her crime, which shall  provide  assistance
    45  with  respect to the development and implementation of a discharge plan,
    46  including potential placements of a releasee.  The  department  and  the
    47  department  of  health  shall  jointly develop standards for the medical
    48  discharge plan that are appropriately adapted to  the  criminal  justice
    49  setting,  based on standards established by the department of health for
    50  hospital medical discharge planning. The board may postpone its decision
    51  pending completion of an adequate discharge plan, or  may  deny  release
    52  based on inadequacy of the discharge plan.
    53    3.  Any certification by the commissioner or the commissioner's desig-
    54  nee pursuant to this section shall be deemed  a  judicial  function  and
    55  shall not be reviewable if done in accordance with law.

        A. 10343                            9
 
     1    4. (a) [Medical parole granted pursuant to this section shall be for a
     2  period  of  six  months.]  Once an inmate is released on medical parole,
     3  that inmate will then be supervised by the department pursuant to  para-
     4  graph (b) of subdivision two of section two hundred fifty-nine-i of this
     5  article.
     6    (b) The board [shall] may require as a condition of release on medical
     7  parole  that  the releasee agree to remain under the care of a physician
     8  while on medical parole and in a hospital established pursuant to  arti-
     9  cle  twenty-eight of the public health law, a hospice established pursu-
    10  ant to article forty of the public health law or  any  other  placement,
    11  including  a residence with family or others, that can provide appropri-
    12  ate medical care as specified in the medical discharge plan required  by
    13  subdivision  two of this section. The medical discharge plan shall state
    14  that the availability of the placement has been confirmed, and by  whom.
    15  Notwithstanding any other provision of law, when an inmate who qualifies
    16  for  release  under this section is cognitively incapable of signing the
    17  requisite documentation to effectuate the medical  discharge  plan  and,
    18  after  a  diligent search no person has been identified who could other-
    19  wise be appointed as the inmate's  guardian  by  a  court  of  competent
    20  jurisdiction,  then,  solely for the purpose of implementing the medical
    21  discharge plan, the facility health services director  at  the  facility
    22  where  the  inmate is currently incarcerated shall be lawfully empowered
    23  to act as the inmate's guardian for  the  purpose  of  effectuating  the
    24  medical discharge.
    25    (c)  Where  appropriate,  the  board  shall  require as a condition of
    26  release that medical parollees be supervised on intensive  caseloads  at
    27  reduced supervision ratios.
    28    (d)  [The  board  shall  require  as a condition of release on medical
    29  parole that the releasee undergo periodic  medical  examinations  and  a
    30  medical  examination  at  least one month prior to the expiration of the
    31  period of medical parole and, for the  purposes  of  making  a  decision
    32  pursuant to paragraph (e) of this subdivision, that the releasee provide
    33  the  board  with  a  report,  prepared by the treating physician, of the
    34  results of such examination. Such report shall specifically state wheth-
    35  er or not the parolee continues to suffer from a significant and  perma-
    36  nent  non-terminal and debilitating condition, disease, or syndrome, and
    37  to be so debilitated or incapacitated as to be  severely  restricted  in
    38  his  or  her  ability  to self-ambulate or to perform significant normal
    39  activities of daily living.
    40    (e) Prior to the expiration of the period of medical parole the  board
    41  shall review the medical examination report required by paragraph (d) of
    42  this  subdivision  and  may  again grant medical parole pursuant to this
    43  section; provided, however, that the  provisions  of  paragraph  (c)  of
    44  subdivision one and subdivision two of this section shall not apply.
    45    (f) If the updated medical report presented to the board states that a
    46  parolee released pursuant to this section is no longer so debilitated or
    47  incapacitated  as  to  create a reasonable probability that he or she is
    48  physically or cognitively incapable of presenting any danger to  society
    49  or  if  the releasee fails to submit the updated medical report then the
    50  board may not make a new grant of medical parole pursuant  to  paragraph
    51  (e)  of this subdivision. Where the board has not granted medical parole
    52  pursuant to such paragraph (e) the board shall promptly conduct  through
    53  one of its members, or cause to be conducted by a hearing officer desig-
    54  nated  by  the  board,  a  hearing  to determine whether the releasee is
    55  suffering from a significant and permanent non-terminal and incapacitat-
    56  ing condition, disease or syndrome and is so  debilitated  or  incapaci-

        A. 10343                           10

     1  tated as to create a reasonable probability that he or she is physically
     2  or  cognitively  incapable  of presenting any danger to society and does
     3  not present a danger to society. If the board makes such a determination
     4  then it may make a new grant of medical parole pursuant to the standards
     5  of paragraph (b) of subdivision one of this section. At the hearing, the
     6  releasee  shall  have  the right to representation by counsel, including
     7  the right, if the releasee is financially unable to retain  counsel,  to
     8  have  the appropriate court assign counsel in accordance with the county
     9  or city plan for representation placed in operation pursuant to  article
    10  eighteen-B of the county law.
    11    (g)  The  hearing  and  determination provided for by paragraph (f) of
    12  this subdivision shall be concluded  within  the  six  month  period  of
    13  medical parole. If the board does not renew the grant of medical parole,
    14  it  shall order that the releasee be returned immediately to the custody
    15  of the department of correctional services.
    16    (h) In addition to the procedures set forth in paragraph (f)  of  this
    17  subdivision, medical] Medical parole may be revoked at any time upon any
    18  of  the  grounds  specified  in  paragraph  (a)  of subdivision three of
    19  section two hundred fifty-nine-i of this article, and in accordance with
    20  the procedures specified in subdivision three  of  section  two  hundred
    21  fifty-nine-i of this article.
    22    [(i)  A releasee who is on medical parole and who becomes eligible for
    23  parole pursuant to the provisions of  subdivision  two  of  section  two
    24  hundred  fifty-nine-i  of  this  article  shall  be  eligible for parole
    25  consideration pursuant to such subdivision.]
    26    5. A denial of release on medical parole  [or  expiration  of  medical
    27  parole in accordance with the provisions of paragraph (f) of subdivision
    28  four  of this section] shall not preclude the inmate from reapplying for
    29  medical parole or otherwise affect an inmate's eligibility for any other
    30  form of release provided for by law.
    31    6. To the extent that any provision of this section  requires  disclo-
    32  sure of medical information for the purpose of processing an application
    33  or making a decision, regarding release on medical parole [or renewal of
    34  medical  parole,]  or  for  the  purpose  of appropriately supervising a
    35  person released on medical parole, and that such disclosure would other-
    36  wise be prohibited by article twenty-seven-F of the public  health  law,
    37  the provisions of this section shall be controlling.
    38    7.  The commissioner and the chair of the board shall be authorized to
    39  promulgate rules and regulations for their respective agencies to imple-
    40  ment the provisions of this section.
    41    8. Any decision made by the board pursuant  to  this  section  may  be
    42  appealed   pursuant   to   subdivision   four  of  section  two  hundred
    43  fifty-nine-i of this article.
    44    9. The chair of the board shall report annually to the  governor,  the
    45  temporary  president  of the senate and the speaker of the assembly, the
    46  chairpersons of the assembly and senate  codes  committees,  the  chair-
    47  person  of  the  senate  crime and corrections committee, and the chair-
    48  person of the assembly corrections committee the number of  inmates  who
    49  have  applied for medical parole under this section; the number who have
    50  been granted medical parole; the nature of the  illness  of  the  appli-
    51  cants,  the  counties to which they have been released and the nature of
    52  the placement pursuant to the medical discharge plan; the categories  of
    53  reasons  for  denial  for  those  who  have  been denied; [the number of
    54  releasees who have been granted  an  additional  period  or  periods  of
    55  medical  parole  and the number of such grants;] the number of releasees

        A. 10343                           11
 
     1  on medical parole who have been returned to imprisonment in the  custody
     2  of the department and the reasons for return.
     3    §  4.  This act shall take effect immediately; provided, however, that
     4  the amendments made to paragraph (a) of subdivision 1 of  section  259-r
     5  of  the  executive  law  by section one of this act shall not affect the
     6  expiration of such paragraph pursuant to chapter 3 of the laws of  1995,
     7  when upon such date the provisions of section two of this act shall take
     8  effect.
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