Section 259-R. Release on medical parole for terminally ill inmates

1.
  * (a) The board shall have the power to release on  medical  parole  any
  inmate  serving an indeterminate or determinate sentence of imprisonment
  who, pursuant to subdivision two of this section, has been certified  to
  be suffering from a terminal condition, disease or syndrome and to be so
  debilitated  or incapacitated as to create a reasonable probability that
  he or she is physically  or  cognitively  incapable  of  presenting  any
  danger  to society, provided, however, that no inmate 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 inmate 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 his or her 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.
    * NB Effective until September 1, 2011
    * (a) The board shall have the power to release on medical parole  any
  inmate  serving an indeterminate or determinate sentence of imprisonment
  who, pursuant to subdivision two of this section, has been certified  to
  be suffering from a terminal condition, disease or syndrome and to be so
  debilitated  or incapacitated as to create a reasonable probability that
  he or she is physically  or  cognitively  incapable  of  presenting  any
  danger  to society, provided, however, that no inmate 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 inmate 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 his or her 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.
    * NB Effective September 1, 2011
    (b) Such release shall be  granted  only  after  the  board  considers
  whether,  in  light  of  the  inmate's  medical  condition,  there  is a
  reasonable probability that the  inmate,  if  released,  will  live  and
  remain  at  liberty  without violating the law, and that such release is
  not incompatible with the welfare of society and will not  so  deprecate
  the  seriousness  of  the crime as to undermine respect for the law, and
  shall be subject to the limits and conditions specified  in  subdivision
  four  of  this  section.  Except  as  set forth in paragraph (a) of this
  subdivision, such release may be granted at any time during the term  of
  an inmate's sentence, notwithstanding any other provision of law.
    (c)  The  board  shall  afford  notice  to  the  sentencing court, the
  district attorney and the attorney for the inmate  that  the  inmate  is
  being  considered  for  release pursuant to this section and the parties
  receiving notice shall have fifteen days to comment on  the  release  of
  the  inmate.  Release  on  medical parole shall not be granted until the
  expiration of the comment period provided for in this paragraph.
    2.  (a)  The   commissioner   of   correctional   services,   on   the
  commissioner's  own  initiative  or  at  the request of an inmate, or an
  inmate'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 inmate who appears to
  be  suffering  from  a terminal condition, disease or syndrome. Any such
  medical  diagnosis  shall  be  made  by a physician licensed to practice
  medicine  in  this  state  pursuant  to   section   sixty-five   hundred
  twenty-four  of  the  education  law.  Such  physician  shall  either be
  employed by  the  department  of  correctional  services,  shall  render
  professional  services  at the request of the department of correctional
  services, or shall be employed by a hospital or medical facility used by
  the department of correctional services for  the  medical  treatment  of
  inmates.  The  diagnosis  shall  be  reported  to  the  commissioner  of
  correctional services and shall include but shall not be  limited  to  a
  description  of  the terminal condition, disease or syndrome suffered by
  the inmate, a prognosis concerning the likelihood that the  inmate  will
  not  recover  from  such  terminal  condition,  disease  or  syndrome, a
  description of the inmate'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 inmate 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  inmate  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  inmate  is  suffering  from  such
  terminal  condition,  disease  or  syndrome  and  that  the inmate 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
  inmate  shall  not  be referred to the board of parole 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 inmate to the board of parole for consideration for
  release on medical parole. However, no such referral of an inmate to the
  board  of  parole shall be made unless the inmate has been examined by a
  physician and diagnosed as  having  a  terminal  condition,  disease  or
  syndrome  as previously described herein at some time subsequent to such
  inmate's  admission  to  a  facility  operated  by  the  department   of
  correctional services.
    (c)  When  the  commissioner  refers  an  inmate  to  the  board,  the
  commissioner shall provide an appropriate medical discharge plan jointly
  established by the department of correctional services and the  division
  of  parole.  The department of correctional services and the division of
  parole are authorized to  request  assistance  from  the  department  of
  health and from the county in which the inmate 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 of correctional services, the
  division of parole and the department of health  shall  jointly  develop
  standards  for the medical discharge plan that are appropriately adapted
  to the criminal justice setting, based on standards established  by  the
  department  of health for hospital medical discharge planning. The board
  may postpone its decision pending completion of  an  adequate  discharge
  plan, or may deny release based on inadequacy of the discharge plan.
    3.  Any  certification  by  the  commissioner  or  the  commissioner's
  designee pursuant to this section shall be deemed  a  judicial  function
  and shall not be reviewable if done in accordance with law.

    4.  (a) Medical parole granted pursuant to this section shall be for a
  period of six months.
    (b)  The  board  shall  require  as  a condition of release on medical
  parole that the releasee agree to remain under the care of  a  physician
  while  on  medical  parole  and  in  a  hospital established pursuant to
  article twenty-eight of the public health  law,  a  hospice  established
  pursuant  to  article  forty  of  the  public  health  law  or any other
  placement that can provide appropriate medical care as specified in  the
  medical  discharge plan required by subdivision two of this section. The
  medical  discharge  plan  shall  state  that  the  availability  of  the
  placement  has  been  confirmed,  and by whom. Notwithstanding any other
  provision of law, when an inmate 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
  inmate'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 inmate  is  currently
  incarcerated shall be lawfully empowered to act as the inmate's guardian
  for the purpose of effectuating the medical discharge.
    (c)  Where  appropriate,  the  board  shall  require as a condition of
  release that medical parolees be supervised on  intensive  caseloads  at
  reduced supervision ratios.
    (d)  The  board  shall  require  as  a condition of release on medical
  parole that the releasee undergo periodic  medical  examinations  and  a
  medical  examination  at  least one month prior to the expiration of the
  period of medical parole and, for the  purposes  of  making  a  decision
  pursuant to paragraph (e) of this subdivision, that the releasee provide
  the  board  with  a  report,  prepared by the treating physician, of the
  results of  such  examination.  Such  report  shall  specifically  state
  whether  or  not  the  parolee  continues  to  suffer  from  a  terminal
  condition,  disease,  or  syndrome,  and  to  be   so   debilitated   or
  incapacitated  as  to  be  severely  restricted in his or her ability to
  self-ambulate or to  perform  significant  normal  activities  of  daily
  living.
    (e)  Prior to the expiration of the period of medical parole the board
  shall review the medical examination report required by paragraph (d) of
  this subdivision and may again grant medical  parole  pursuant  to  this
  section;  provided,  however,  that  the  provisions of paragraph (c) of
  subdivision one and subdivision two of this section shall not apply.
    (f) If the updated medical report presented to the board states that a
  parolee released pursuant to this section is no longer so debilitated or
  incapacitated as to create a reasonable probability that he  or  she  is
  physically  or cognitively incapable of presenting any danger to society
  or if the releasee fails to submit the updated medical report  then  the
  board  may  not make a new grant of medical parole pursuant to paragraph
  (e) of this subdivision. Where the board has not granted medical  parole
  pursuant  to such paragraph (e) the board shall promptly conduct through
  one of its members, or cause  to  be  conducted  by  a  hearing  officer
  designated  by the board, a hearing to determine whether the releasee is
  suffering from a terminal condition,  disease  or  syndrome  and  is  so
  debilitated  or incapacitated as to create a reasonable probability that
  he or she is physically  or  cognitively  incapable  of  presenting  any
  danger to society and does not present a danger to society. If the board
  makes  such  a  determination  then  it  may make a new grant of medical
  parole pursuant to the standards of paragraph (b) of subdivision one  of
  this  section.  At  the  hearing,  the  releasee shall have the right to
  representation by counsel, including  the  right,  if  the  releasee  is

  financially  unable  to  retain  counsel,  to have the appropriate court
  assign  counsel  in  accordance  with  the  county  or  city  plan   for
  representation placed in operation pursuant to article eighteen-B of the
  county law.
    (g)  The  hearing  and  determination provided for by paragraph (f) of
  this subdivision shall be concluded  within  the  six  month  period  of
  medical parole. If the board does not renew the grant of medical parole,
  it  shall order that the releasee be returned immediately to the custody
  of the department 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 inmate from reapplying for
  medical parole or otherwise affect an inmate'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 of correctional services and the chairman  of  the
  board  of parole shall be authorized to promulgate rules and regulations
  for their respective  agencies  to  implement  the  provisions  of  this
  section.
    8.  Any  decision  made  by  the board pursuant to this section may be
  appealed  pursuant  to  subdivision  four   of   section   two   hundred
  fifty-nine-i of this article.
    9.  The  chairman shall report annually to the governor, the temporary
  president  of  the  senate  and  the  speaker  of  the   assembly,   the
  chairpersons   of   the   assembly  and  senate  codes  committees,  the
  chairperson of the senate  crime  and  corrections  committee,  and  the
  chairperson  of the assembly corrections committee the number of inmates
  who have applied for medical parole; the number who  have  been  granted
  medical  parole;  the  nature  of  the  illness  of  the applicants, the
  counties to which  they  have  been  released  and  the  nature  of  the
  placement  pursuant  to  the  medical  discharge plan; the categories of
  reasons for denial for  those  who  have  been  denied;  the  number  of
  releasees  who  have  been  granted  an  additional period or periods of
  medical parole and the number of such grants; the number of releasees on
  medical parole who have been returned to the custody of  the  department
  of correctional services and the reasons for return.