STATE OF NEW YORK
________________________________________________________________________
6131
2023-2024 Regular Sessions
IN SENATE
March 30, 2023
___________
Introduced by Sen. PARKER -- read twice and ordered printed, and when
printed to be committed to the Committee on Crime Victims, Crime and
Correction
AN ACT to amend the executive law, in relation to prohibiting medical
parole for persons convicted of an act of terrorism
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-l of subpart A of part C of chapter 62 of the laws of 2011, the
3 section heading and subdivisions 1, 2, paragraph (b) of subdivision 4,
4 subdivisions 5, 9, 10 and 11 as amended by section 14 of chapter 322 of
5 the laws of 2021, is amended to read as follows:
6 § 259-r. Release on medical parole for terminally ill incarcerated
7 individuals. 1. (a) The [board] commissioner shall have the power to
8 release on medical parole any incarcerated individual serving an inde-
9 terminate or determinate sentence of imprisonment who, pursuant to
10 subdivision two of this section, has been certified to be suffering from
11 a terminal condition, disease or syndrome and to be so debilitated or
12 incapacitated as to create a reasonable probability that he or she is
13 physically or cognitively incapable of presenting any danger to society,
14 provided, however, that no incarcerated individual serving a sentence
15 imposed upon a conviction for [murder in the first degree or an attempt
16 or conspiracy to commit murder in the first degree shall be eligible for
17 such release, and provided further that no incarcerated individual serv-
18 ing a sentence imposed upon a conviction for any of the following
19 offenses shall be eligible for such release unless in the case of an
20 indeterminate sentence he or she has served at least one-half of the
21 minimum period of the sentence and in the case of a determinate sentence
22 he or she has served at least one-half of the term of his or her deter-
23 minate sentence: murder in the second degree, manslaughter in the first
24 degree, any offense defined in article one hundred thirty of the penal
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07544-01-3
S. 6131 2
1 law or an attempt to commit any of these offenses. Solely for the
2 purpose of determining medical parole eligibility pursuant to this
3 section, such one-half of the minimum period of the indeterminate
4 sentence and one-half of the term of the determinate sentence shall not
5 be credited with any time served under the jurisdiction of the depart-
6 ment prior to the commencement of such sentence pursuant to the opening
7 paragraph of subdivision one of section 70.30 of the penal law or subdi-
8 vision two-a of section 70.30 of the penal law, except to the extent
9 authorized by subdivision three of section 70.30 of the penal law] an
10 act of terrorism as defined in section 490.05 of the penal law, shall be
11 eligible for release.
12 (b) Such release shall be granted only after the [board] commissioner
13 considers whether, in light of the incarcerated individual's medical
14 condition, there is a reasonable probability that the incarcerated indi-
15 vidual, if released, will live and remain at liberty without violating
16 the law, and that such release is not incompatible with the welfare of
17 society and will not so deprecate the seriousness of the crime as to
18 undermine respect for the law, and shall be subject to the limits and
19 conditions specified in subdivision four of this section. Except as set
20 forth in paragraph (a) of this subdivision, such release may be granted
21 at any time during the term of an incarcerated individual's sentence,
22 notwithstanding any other provision of law.
23 [(c) The board shall afford notice to the sentencing court, the
24 district attorney and the attorney for the incarcerated individual that
25 the incarcerated individual is being considered for release pursuant to
26 this section and the parties receiving notice shall have fifteen days to
27 comment on the release of the incarcerated individual. Release on
28 medical parole shall not be granted until the expiration of the comment
29 period provided for in this paragraph.]
30 2. (a) The commissioner, on the commissioner's own initiative or at
31 the request of an incarcerated individual, or an incarcerated individ-
32 ual's spouse, relative or attorney, may, in the exercise of the commis-
33 sioner's discretion, direct that an investigation be undertaken to
34 determine whether a diagnosis should be made of an incarcerated individ-
35 ual who appears to be suffering from a terminal condition, disease or
36 syndrome. Any such medical diagnosis shall be made by a physician
37 licensed to practice medicine in this state pursuant to section sixty-
38 five hundred twenty-four of the education law. Such physician shall
39 either be employed by the department, shall render professional services
40 at the request of the department, or shall be employed by a hospital or
41 medical facility used by the department for the medical treatment of
42 incarcerated individuals. The diagnosis shall be reported to the commis-
43 sioner and shall include but shall not be limited to a description of
44 the terminal condition, disease or syndrome suffered by the incarcerated
45 individual, a prognosis concerning the likelihood that the incarcerated
46 individual will not recover from such terminal condition, disease or
47 syndrome, a description of the incarcerated individual's physical or
48 cognitive incapacity which shall include a prediction respecting the
49 likely duration of the incapacity, and a statement by the physician of
50 whether the incarcerated individual is so debilitated or incapacitated
51 as to be severely restricted in his or her ability to self-ambulate or
52 to perform significant normal activities of daily living. This report
53 also shall include a recommendation of the type and level of services
54 and treatment the incarcerated individual would require if granted
55 medical parole and a recommendation for the types of settings in which
56 the services and treatment should be given.
S. 6131 3
1 (b) The commissioner, or the commissioner's designee, shall review the
2 diagnosis and may certify that the incarcerated individual is suffering
3 from such terminal condition, disease or syndrome and that the incarcer-
4 ated individual is so debilitated or incapacitated as to create a
5 reasonable probability that he or she is physically or cognitively inca-
6 pable of presenting [any] a danger to society. [If the commissioner does
7 not so certify then the incarcerated individual shall not be referred to
8 the board for consideration for release on medical parole.] If the
9 commissioner does so certify, then the commissioner shall, within seven
10 working days of receipt of such diagnosis, refer the incarcerated indi-
11 vidual [to the board for consideration] for release on medical parole.
12 However, no such [referral of an incarcerated individual to the board]
13 release shall be made unless the incarcerated individual has been exam-
14 ined by a physician and diagnosed as having a terminal condition,
15 disease or syndrome as previously described herein at some time subse-
16 quent to such incarcerated individual's admission to a facility operated
17 by the department of correctional services.
18 (c) [When the commissioner refers an incarcerated individual to the
19 board, the] The commissioner shall provide an appropriate medical
20 discharge plan established by the department. The department is author-
21 ized to request assistance from the department of health and from the
22 county in which the incarcerated individual resided and committed his or
23 her crime, which shall provide assistance with respect to the develop-
24 ment and implementation of a discharge plan, including potential place-
25 ments of a releasee. The department and the department of health shall
26 jointly develop standards for the medical discharge plan that are appro-
27 priately adapted to the criminal justice setting, based on standards
28 established by the department of health for hospital medical discharge
29 planning. The [board] commissioner may postpone its decision pending
30 completion of an adequate discharge plan, or may deny release based on
31 inadequacy of the discharge plan.
32 3. Any certification by the commissioner or the commissioner's desig-
33 nee pursuant to this section shall be deemed a judicial function and
34 shall not be reviewable if done in accordance with law.
35 4. (a) Medical parole granted pursuant to this section shall be for a
36 period of six months.
37 (b) The [board] commissioner shall require as a condition of release
38 on medical parole that the releasee agree to remain under the care of a
39 physician while on medical parole and in a hospital established pursuant
40 to article twenty-eight of the public health law, a hospice established
41 pursuant to article forty of the public health law or any other place-
42 ment that can provide appropriate medical care as specified in the
43 medical discharge plan required by subdivision two of this section. The
44 medical discharge plan shall state that the availability of the place-
45 ment has been confirmed, and by whom. Notwithstanding any other
46 provision of law, when an incarcerated individual who qualifies for
47 release under this section is cognitively incapable of signing the
48 requisite documentation to effectuate the medical discharge plan and,
49 after a diligent search no person has been identified who could other-
50 wise be appointed as the incarcerated individual's guardian by a court
51 of competent jurisdiction, then, solely for the purpose of implementing
52 the medical discharge plan, the facility health services director at the
53 facility where the incarcerated individual is currently incarcerated
54 shall be lawfully empowered to act as the incarcerated individual's
55 guardian for the purpose of effectuating the medical discharge.
S. 6131 4
1 (c) Where appropriate, the [board] commissioner shall require as a
2 condition of release that medical parolees be supervised on intensive
3 caseloads at reduced supervision ratios.
4 (d) The [board] commissioner shall require as a condition of release
5 on medical parole that the releasee undergo periodic medical examina-
6 tions and a medical examination at least one month prior to the expira-
7 tion of the period of medical parole and, for the purposes of making a
8 decision pursuant to paragraph (e) of this subdivision, that the releas-
9 ee provide the board with a report, prepared by the treating physician,
10 of the results of such examination. Such report shall specifically state
11 whether or not the parolee continues to suffer from a terminal condi-
12 tion, disease, or syndrome, and to be so debilitated or incapacitated as
13 to be severely restricted in his or her ability to self-ambulate or to
14 perform significant normal activities of daily living.
15 (e) Prior to the expiration of the period of medical parole the
16 [board] commissioner shall review the medical examination report
17 required by paragraph (d) of this subdivision and may again grant
18 medical parole pursuant to this section; provided, however, that the
19 provisions of [paragraph (c) of subdivision one and] subdivision two of
20 this section shall not apply.
21 (f) If the updated medical report presented to the [board] commission-
22 er states that a parolee released pursuant to this section is no longer
23 so debilitated or incapacitated as to create a reasonable probability
24 that he or she is physically or cognitively incapable of presenting any
25 danger to society or if the releasee fails to submit the updated medical
26 report then the board may not make a new grant of medical parole pursu-
27 ant to paragraph (e) of this subdivision. Where the [board] commissioner
28 has not granted medical parole pursuant to such paragraph (e) the
29 [board] commissioner shall promptly conduct [through one of its
30 members,] or cause to be conducted by a hearing officer [designated by
31 the board,] a hearing to determine whether the releasee is suffering
32 from a terminal condition, disease or syndrome and is so debilitated or
33 incapacitated as to create a reasonable probability that he or she is
34 physically or cognitively incapable of presenting any danger to society
35 and does not present a danger to society. If the [board] commissioner
36 makes such a determination then it may make a new grant of medical
37 parole pursuant to the standards of paragraph (b) of subdivision one of
38 this section. At the hearing, the releasee shall have the right to
39 representation by counsel, including the right, if the releasee is
40 financially unable to retain counsel, to have the appropriate court
41 assign counsel in accordance with the county or city plan for represen-
42 tation placed in operation pursuant to article eighteen-B of the county
43 law.
44 (g) The hearing and determination provided for by paragraph (f) of
45 this subdivision shall be concluded within the six month period of
46 medical parole. If the [board] commissioner does not renew the grant of
47 medical parole, it shall order that the releasee be returned immediately
48 to the custody of the department.
49 (h) In addition to the procedures set forth in paragraph (f) of this
50 subdivision, medical parole may be revoked at any time upon any of the
51 grounds specified in paragraph (a) of subdivision three of section two
52 hundred fifty-nine-i of this article, and in accordance with the proce-
53 dures specified in subdivision three of section two hundred fifty-nine-i
54 of this article.
55 (i) A releasee who is on medical parole and who becomes eligible for
56 parole pursuant to the provisions of subdivision two of section two
S. 6131 5
1 hundred fifty-nine-i of this article shall be eligible for parole
2 consideration pursuant to such subdivision.
3 5. A denial of release on medical parole or expiration of medical
4 parole in accordance with the provisions of paragraph (f) of subdivision
5 four of this section shall not preclude the incarcerated individual from
6 reapplying for medical parole or otherwise affect an incarcerated indi-
7 vidual's eligibility for any other form of release provided for by law.
8 6. To the extent that any provision of this section requires disclo-
9 sure of medical information for the purpose of processing an application
10 or making a decision, regarding release on medical parole or renewal of
11 medical parole, or for the purpose of appropriately supervising a person
12 released on medical parole, and that such disclosure would otherwise be
13 prohibited by article twenty-seven-F of the public health law, the
14 provisions of this section shall be controlling.
15 7. The commissioner [and the chairman of the board] shall be author-
16 ized to promulgate rules and regulations for their respective agencies
17 to implement the provisions of this section.
18 8. Any decision made by the [board] commissioner pursuant to this
19 section may be appealed pursuant to subdivision four of section two
20 hundred fifty-nine-i of this article.
21 9. The [chairman] commissioner shall report annually to the governor,
22 the temporary president of the senate and the speaker of the assembly,
23 the chairpersons of the assembly and senate codes committees, the chair-
24 person of the senate crime and corrections committee, and the chair-
25 person of the assembly corrections committee the number of incarcerated
26 individuals who have applied for medical parole; the number who have
27 been granted medical parole; the nature of the illness of the appli-
28 cants, the counties to which they have been released and the nature of
29 the placement pursuant to the medical discharge plan; the categories of
30 reasons for denial for those who have been denied; the number of
31 releases who have been granted an additional period or periods of
32 medical parole and the number of such grants; the number of releases on
33 medical parole who have been returned to imprisonment in the custody of
34 the department and the reasons for return.
35 [10. Notwithstanding any other provision of law, in the case of an
36 incarcerated individual whose terminal condition, disease or syndrome
37 meets the criteria for medical parole as set forth in paragraph (a) of
38 subdivision one of this section, and who is not serving a sentence for
39 one or more offenses set forth in paragraph (i) of subdivision one of
40 section eight hundred six of the correction law which would render such
41 incarcerated individual ineligible for presumptive release, the granting
42 of medical parole shall be determined by the commissioner provided that
43 a release of such incarcerated individual shall be in accordance with
44 subdivision eleven of this section. In such case, the provisions that
45 would have applied to and the procedures that would have been followed
46 by the board of parole pursuant to this section shall apply to and be
47 followed by the commissioner.
48 11. (a) After the commissioner has made a determination to grant
49 medical parole pursuant to subdivision ten of this section, the commis-
50 sioner shall notify the chairperson of the board of parole, or their
51 designee who shall be a member of the board of parole, and provide him
52 or her with all relevant records, files, information and documentation,
53 which includes but is not limited to the criminal history, medical diag-
54 nosis and treatment pertaining to the terminally ill incarcerated indi-
55 vidual no more than five days from the date of the determination. (b)
56 The chairperson or his or her designee shall either accept the commis-
S. 6131 6
1 sioner's grant of medical parole, in which case the incarcerated indi-
2 vidual may be released by the commissioner, or conduct further review.
3 This decision or review shall be made within five days of the receipt of
4 the relevant records, files, information and documentation from the
5 commissioner. The chairperson's further review may include, but not be
6 limited to, an appearance by the terminally ill incarcerated individual
7 before the chairperson or his or her designee. (c) After this further
8 review, the chairperson shall either accept the commissioner's grant of
9 medical parole, in which case the incarcerated individual may be
10 released by the commissioner, or the chairperson shall schedule an
11 appearance for the terminally ill incarcerated individual before the
12 board of parole.
13 In the event the terminally ill incarcerated individual is scheduled
14 to make an appearance before the board of parole pursuant to this subdi-
15 vision, the matter shall be heard by a panel that does not include the
16 chairperson or any member of the board of parole who was involved in the
17 review of the commissioner's determination.]
18 § 2. Paragraph (a) of subdivision 1 of section 259-r of the executive
19 law, as amended by section 14-a of the chapter 322 of the laws of 2021,
20 is amended to read as follows,
21 (a) The [board] commissioner shall have the power to release on
22 medical parole any incarcerated individual serving an indeterminate or
23 determinate sentence of imprisonment who, pursuant to subdivision two of
24 this section, has been certified to be suffering from a terminal condi-
25 tion, disease or syndrome and to be so debilitated or incapacitated as
26 to create a reasonable probability that he or she is physically or
27 cognitively incapable of presenting any danger to society, provided,
28 however, that no incarcerated individual serving a sentence imposed upon
29 a conviction for [murder in the first degree or an attempt or conspiracy
30 to commit murder in the first degree shall be eligible for such release,
31 and provided further that no incarcerated individual serving a sentence
32 imposed upon a conviction for any of the following offenses shall be
33 eligible for such release unless in the case of an indeterminate
34 sentence he or she has served at least one-half of the minimum period of
35 the sentence and in the case of a determinate sentence he or she has
36 served at least one-half of the term of his or her determinate sentence:
37 murder in the second degree, manslaughter in the first degree, any
38 offense defined in article one hundred thirty of the penal law or an
39 attempt to commit any of these offenses. Solely for the purpose of
40 determining medical parole eligibility pursuant to this section, such
41 one-half of the minimum period of the indeterminate sentence and one-
42 half of the term of the determinate sentence shall not be credited with
43 any time served under the jurisdiction of the department prior to the
44 commencement of such sentence pursuant to the opening paragraph of
45 subdivision one of section 70.30 of the penal law or subdivision two-a
46 of section 70.30 of the penal law, except to the extent authorized by
47 subdivision three of section 70.30 of the penal law] an act of terrorism
48 as defined in section 490.04 of the penal law, shall be eligible for
49 such release.
50 § 3. Section 259-s of the executive law, as amended by chapter 322 of
51 the laws of 2021, is amended to read as follows:
52 § 259-s. Release on medical parole for incarcerated individuals
53 suffering significant debilitating illnesses. 1. (a) The [board] commis-
54 sioner shall have the power to release on medical parole any incarcerat-
55 ed individual serving an indeterminate or determinate sentence of impri-
56 sonment who, pursuant to subdivision two of this section, has been
S. 6131 7
1 certified to be suffering from a significant and permanent non-terminal
2 condition, disease or syndrome that has rendered the incarcerated indi-
3 vidual so physically or cognitively debilitated or incapacitated as to
4 create a reasonable probability that he or she does not present any
5 danger to society, provided, however, that no incarcerated individual
6 serving a sentence imposed upon a conviction for [murder in the first
7 degree or an attempt or conspiracy to commit murder in the first degree
8 shall be eligible for such release, and provided further that no incar-
9 cerated individual serving a sentence imposed upon a conviction for any
10 of the following offenses shall be eligible for such release unless in
11 the case of an indeterminate sentence he or she has served at least
12 one-half of the minimum period of the sentence and in the case of a
13 determinate sentence he or she has served at least one-half of the term
14 of his or her determinate sentence: murder in the second degree,
15 manslaughter in the first degree, any offense defined in article one
16 hundred thirty of the penal law or an attempt to commit any of these
17 offenses. Solely for the purpose of determining medical parole eligibil-
18 ity pursuant to this section, such one-half of the minimum period of the
19 indeterminate sentence and one-half of the term of the determinate
20 sentence shall not be credited with any time served under the jurisdic-
21 tion of the department prior to the commencement of such sentence pursu-
22 ant to the opening paragraph of subdivision one of section 70.30 of the
23 penal law or subdivision two-a of section 70.30 of the penal law, except
24 to the extent authorized by subdivision three of section 70.30 of the
25 penal law] an act of terrorism as defined in section 490.05 of the penal
26 law, shall be eligible for such release.
27 (b) Such release shall be granted only after the [board] commissioner
28 considers whether, in light of the incarcerated individual's medical
29 condition, there is a reasonable probability that the incarcerated indi-
30 vidual, if released, will live and remain at liberty without violating
31 the law, and that such release is not incompatible with the welfare of
32 society and will not so deprecate the seriousness of the crime as to
33 undermine respect for the law, and shall be subject to the limits and
34 conditions specified in subdivision four of this section. In making this
35 determination, the [board] commissioner shall consider: (i) the nature
36 and seriousness of the incarcerated individual's crime; (ii) the incar-
37 cerated individual's prior criminal record; (iii) the incarcerated indi-
38 vidual's disciplinary, behavioral and rehabilitative record during the
39 term of his or her incarceration; (iv) [the amount of time the incarcer-
40 ated individual must serve before becoming eligible for release pursuant
41 to section two hundred fifty-nine-i of this article; (v)] the current
42 age of the incarcerated individual and his or her age at the time of the
43 crime; [(vi) the recommendations of the sentencing court, the district
44 attorney and the victim or the victim's representative; (vii)] (v) the
45 nature of the incarcerated individual's medical condition, disease or
46 syndrome and the extent of medical treatment or care that the incarcer-
47 ated individual will require as a result of that condition, disease or
48 syndrome; and [(viii)] (vi) any other relevant factor. Except as set
49 forth in paragraph (a) of this subdivision, such release may be granted
50 at any time during the term of an incarcerated individual's sentence,
51 notwithstanding any other provision of law.
52 [(c) The board shall afford notice to the sentencing court, the
53 district attorney, the attorney for the incarcerated individual and,
54 where necessary pursuant to subdivision two of section two hundred
55 fifty-nine-i of this article, the crime victim, that the incarcerated
56 individual is being considered for release pursuant to this section and
S. 6131 8
1 the parties receiving notice shall have thirty days to comment on the
2 release of the incarcerated individual. Release on medical parole shall
3 not be granted until the expiration of the comment period provided for
4 in this paragraph.]
5 2. (a) The commissioner, on the commissioner's own initiative or at
6 the request of an incarcerated individual, or an incarcerated individ-
7 ual's spouse, relative or attorney, may, in the exercise of the commis-
8 sioner's discretion, direct that an investigation be undertaken to
9 determine whether a diagnosis should be made of an incarcerated individ-
10 ual who appears to be suffering from a significant and permanent non-
11 terminal and incapacitating condition, disease or syndrome. Any such
12 medical diagnosis shall be made by a physician licensed to practice
13 medicine in this state pursuant to section sixty-five hundred twenty-
14 four of the education law. Such physician shall either be employed by
15 the department, shall render professional services at the request of the
16 department, or shall be employed by a hospital or medical facility used
17 by the department for the medical treatment of incarcerated individuals.
18 The diagnosis shall be reported to the commissioner and shall include
19 but shall not be limited to a description of the condition, disease or
20 syndrome suffered by the incarcerated individual, a prognosis concerning
21 the likelihood that the incarcerated individual will not recover from
22 such condition, disease or syndrome, a description of the incarcerated
23 individual's physical or cognitive incapacity which shall include a
24 prediction respecting the likely duration of the incapacity, and a
25 statement by the physician of whether the incarcerated individual is so
26 debilitated or incapacitated as to be severely restricted in his or her
27 ability to self-ambulate or to perform significant normal activities of
28 daily living. This report also shall include a recommendation of the
29 type and level of services and treatment the incarcerated individual
30 would require if granted medical parole and a recommendation for the
31 types of settings in which the services and treatment should be given.
32 (b) The commissioner, or the commissioner's designee, shall review the
33 diagnosis and may certify that the incarcerated individual is suffering
34 from such condition, disease or syndrome and that the incarcerated indi-
35 vidual is so debilitated or incapacitated as to create a reasonable
36 probability that he or she is physically or cognitively incapable of
37 presenting any danger to society. If the commissioner does not so certi-
38 fy then the incarcerated individual shall not be referred to the board
39 for consideration for release on medical parole. If the commissioner
40 does so certify, then the commissioner shall, within seven working days
41 of receipt of such diagnosis, [refer the incarcerated individual to the
42 board for consideration for] release the incarcerated individual on
43 medical parole. However, no such referral of an incarcerated individual
44 to the [board of parole] commissioner shall be made unless the incarcer-
45 ated individual has been examined by a physician and diagnosed as having
46 a condition, disease or syndrome as previously described herein at some
47 time subsequent to such incarcerated individual's admission to a facili-
48 ty operated by the department.
49 (c) [When the commissioner refers an incarcerated individual to the
50 board, the] The commissioner shall provide an appropriate medical
51 discharge plan established by the department. The department is author-
52 ized to request assistance from the department of health and from the
53 county in which the incarcerated individual resided and committed his or
54 her crime, which shall provide assistance with respect to the develop-
55 ment and implementation of a discharge plan, including potential place-
56 ments of a releasee. The department and the department of health shall
S. 6131 9
1 jointly develop standards for the medical discharge plan that are appro-
2 priately adapted to the criminal justice setting, based on standards
3 established by the department of health for hospital medical discharge
4 planning. [The board may postpone its decision pending completion of an
5 adequate discharge plan, or may deny release based on inadequacy of the
6 discharge plan.]
7 3. Any certification by the commissioner or the commissioner's desig-
8 nee pursuant to this section shall be deemed a judicial function and
9 shall not be reviewable if done in accordance with law.
10 4. (a) Medical parole granted pursuant to this section shall be for a
11 period of six months.
12 (b) The [board] commissioner shall require as a condition of release
13 on medical parole that the releasee agree to remain under the care of a
14 physician while on medical parole and in a hospital established pursuant
15 to article twenty-eight of the public health law, a hospice established
16 pursuant to article forty of the public health law or any other place-
17 ment, including a residence with family or others, that can provide
18 appropriate medical care as specified in the medical discharge plan
19 required by subdivision two of this section. The medical discharge plan
20 shall state that the availability of the placement has been confirmed,
21 and by whom. Notwithstanding any other provision of law, when an incar-
22 cerated individual who qualifies for release under this section is
23 cognitively incapable of signing the requisite documentation to effectu-
24 ate the medical discharge plan and, after a diligent search no person
25 has been identified who could otherwise be appointed as the incarcerated
26 individual's guardian by a court of competent jurisdiction, then, solely
27 for the purpose of implementing the medical discharge plan, the facility
28 health services director at the facility where the incarcerated individ-
29 ual is currently incarcerated shall be lawfully empowered to act as the
30 incarcerated individual's guardian for the purpose of effectuating the
31 medical discharge.
32 (c) Where appropriate, the [board] commissioner shall require as a
33 condition of release that medical parolees be supervised on intensive
34 caseloads at reduced supervision ratios.
35 (d) The [board] commissioner shall require as a condition of release
36 on medical parole that the releasee undergo periodic medical examina-
37 tions and a medical examination at least one month prior to the expira-
38 tion of the period of medical parole and, for the purposes of making a
39 decision pursuant to paragraph (e) of this subdivision, that the releas-
40 ee provide the [board] commissioner with a report, prepared by the
41 treating physician, of the results of such examination. Such report
42 shall specifically state whether or not the parolee continues to suffer
43 from a significant and permanent non-terminal and debilitating condi-
44 tion, disease, or syndrome, and to be so debilitated or incapacitated as
45 to be severely restricted in his or her ability to self-ambulate or to
46 perform significant normal activities of daily living.
47 (e) Prior to the expiration of the period of medical parole the
48 [board] commissioner shall review the medical examination report
49 required by paragraph (d) of this subdivision and may again grant
50 medical parole pursuant to this section; provided, however, that the
51 provisions of paragraph (c) of subdivision one and subdivision two of
52 this section shall not apply.
53 (f) If the updated medical report presented to the [board] commission-
54 er states that a parolee released pursuant to this section is no longer
55 so debilitated or incapacitated as to create a reasonable probability
56 that he or she is physically or cognitively incapable of presenting
S. 6131 10
1 [any] a danger to society or if the releasee fails to submit the updated
2 medical report then the [board] commissioner may not make a new grant of
3 medical parole pursuant to paragraph (e) of this subdivision. Where the
4 [board] commissioner has not granted medical parole pursuant to such
5 paragraph (e) the [board] commissioner shall promptly conduct [through
6 one of its members,] or cause to be conducted by a hearing officer
7 [designated by the board,] a hearing to determine whether the releasee
8 is suffering from a significant and permanent non-terminal and incapaci-
9 tating condition, disease or syndrome and is so debilitated or incapaci-
10 tated as to create a reasonable probability that he or she is physically
11 or cognitively incapable of presenting any danger to society and does
12 not present a danger to society. If the [board] commissioner makes such
13 a determination then [it] he or she may make a new grant of medical
14 parole pursuant to the standards of paragraph (b) of subdivision one of
15 this section. At the hearing, the releasee shall have the right to
16 representation by counsel, including the right, if the releasee is
17 financially unable to retain counsel, to have the appropriate court
18 assign counsel in accordance with the county or city plan for represen-
19 tation placed in operation pursuant to article eighteen-B of the county
20 law.
21 (g) The hearing and determination provided for by paragraph (f) of
22 this subdivision shall be concluded within the six month period of
23 medical parole. If the [board] commissioner does not renew the grant of
24 medical parole, [it] he or she shall order that the releasee be returned
25 immediately to the custody of the department of correctional services.
26 (h) In addition to the procedures set forth in paragraph (f) of this
27 subdivision, medical parole may be revoked at any time upon any of the
28 grounds specified in paragraph (a) of subdivision three of section two
29 hundred fifty-nine-i of this article, and in accordance with the proce-
30 dures specified in subdivision three of section two hundred fifty-nine-i
31 of this article.
32 (i) A releasee who is on medical parole and who becomes eligible for
33 parole pursuant to the provisions of subdivision two of section two
34 hundred fifty-nine-i of this article shall be eligible for parole
35 consideration pursuant to such subdivision.
36 5. A denial of release on medical parole or expiration of medical
37 parole in accordance with the provisions of paragraph (f) of subdivision
38 four of this section shall not preclude the incarcerated individual from
39 reapplying for medical parole or otherwise affect an incarcerated indi-
40 vidual's eligibility for any other form of release provided for by law.
41 6. To the extent that any provision of this section requires disclo-
42 sure of medical information for the purpose of processing an application
43 or making a decision, regarding release on medical parole or renewal of
44 medical parole, or for the purpose of appropriately supervising a person
45 released on medical parole, and that such disclosure would otherwise be
46 prohibited by article twenty-seven-F of the public health law, the
47 provisions of this section shall be controlling.
48 7. The commissioner [and the chair of the board] shall be authorized
49 to promulgate rules and regulations for [their] his or her respective
50 [agencies] agency to implement the provisions of this section.
51 8. Any decision made by the [board] commissioner pursuant to this
52 section may be appealed pursuant to subdivision four of section two
53 hundred fifty-nine-i of this article.
54 9. The [chair of the board] commissioner shall report annually to the
55 governor, the temporary president of the senate and the speaker of the
56 assembly, the chairpersons of the assembly and senate codes committees,
S. 6131 11
1 the chairperson of the senate crime and corrections committee, and the
2 chairperson of the assembly corrections committee the number of incar-
3 cerated individuals who have applied for medical parole under this
4 section; the number who have been granted medical parole; the nature of
5 the illness of the applicants, the counties to which they have been
6 released and the nature of the placement pursuant to the medical
7 discharge plan; the categories of reasons for denial for those who have
8 been denied; the number of releasees who have been granted an additional
9 period or periods of medical parole and the number of such grants; the
10 number of releasees on medical parole who have been returned to impri-
11 sonment in the custody of the department and the reasons for return.
12 § 4. This act shall take effect immediately; provided, however, that
13 the amendments to paragraph (a) of subdivision 1 of section 259-r of the
14 executive law made by section one of this act shall be subject to the
15 expiration and reversion of such paragraph pursuant to subdivision d of
16 section 74 of chapter 3 of the laws of 1995, as amended, when upon such
17 date the provisions of section two of this act shall take effect.
