Section 259-S. Release on medical parole for inmates suffering significant debilitating illnesses

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  significant  and
  permanent  non-terminal condition, disease or syndrome that has rendered
  the inmate so physically or cognitively debilitated or incapacitated  as
  to  create  a reasonable probability that he or she does not present any
  danger to society, provided, however, that no 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.
    (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. In making  this  determination,  the  board  shall
  consider: (i) the nature and seriousness of the inmate's crime; (ii) the
  inmate's   prior  criminal  record;  (iii)  the  inmate's  disciplinary,
  behavioral and rehabilitative record during  the  term  of  his  or  her
  incarceration;  (iv)  the  amount  of  time the inmate must serve before
  becoming  eligible  for  release  pursuant  to   section   two   hundred
  fifty-nine-i  of this article; (v) the current age of the inmate and his
  or her age at the time of the crime; (vi)  the  recommendations  of  the
  sentencing  court,  the district attorney and the victim or the victim's
  representative; (vii) the nature  of  the  inmate's  medical  condition,
  disease or syndrome and the extent of medical treatment or care that the
  inmate  will require as a result of that condition, disease or syndrome;
  and (viii) any other relevant factor. Except as set forth  in  paragraph
  (a)  of this subdivision, such release may be granted at any time during
  the term of an inmate's sentence, notwithstanding any other provision of
  law.
    (c) The board  shall  afford  notice  to  the  sentencing  court,  the
  district  attorney,  the  attorney  for  the inmate and, where necessary
  pursuant to subdivision two of section two hundred fifty-nine-i of  this
  article,  the  crime  victim,  that  the  inmate is being considered for
  release pursuant to this section and the parties receiving notice  shall
  have  thirty  days  to  comment on the release of the 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  significant  and  permanent   non-terminal   and
  incapacitating   condition,   disease  or  syndrome.  Any  such  medical

  diagnosis shall be made by a physician licensed to practice medicine  in
  this  state  pursuant  to  section sixty-five hundred twenty-four of the
  education law. Such physician shall either be employed by the department
  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 condition,  disease  or
  syndrome  suffered  by the inmate, a prognosis concerning the likelihood
  that the inmate  will  not  recover  from  such  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
  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  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, including a residence with family or others, that can provide
  appropriate  medical  care  as  specified  in the medical discharge plan
  required by subdivision two of this section. The medical discharge  plan
  shall  state  that the availability of the placement has been confirmed,
  and by whom.  Notwithstanding any other provision of law, when an 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  significant  and
  permanent non-terminal and debilitating condition, disease, or syndrome,
  and  to  be so debilitated or incapacitated as to be severely restricted
  in his or her ability to self-ambulate or to perform significant  normal
  activities of daily living.
    (e)  Prior to the expiration of the period of medical parole the board
  shall review the medical examination report required by paragraph (d) of
  this subdivision and may again grant medical  parole  pursuant  to  this
  section;  provided,  however,  that  the  provisions of paragraph (c) of
  subdivision one and subdivision two of this section shall not apply.
    (f) If the updated medical report presented to the board states that a
  parolee released pursuant to this section is no longer so debilitated or
  incapacitated as to create a reasonable probability that he  or  she  is
  physically  or cognitively incapable of presenting any danger to society
  or if the releasee fails to submit the updated medical report  then  the
  board  may  not make a new grant of medical parole pursuant to paragraph
  (e) of this subdivision. Where the board has not granted medical  parole
  pursuant  to such paragraph (e) the board shall promptly conduct through
  one of its members, or cause  to  be  conducted  by  a  hearing  officer
  designated  by the board, a hearing to determine whether the releasee is
  suffering  from   a   significant   and   permanent   non-terminal   and
  incapacitating  condition,  disease or syndrome and is so debilitated or
  incapacitated as to create a reasonable probability that he  or  she  is
  physically  or cognitively incapable of presenting any danger to society
  and does not present a danger to society. If  the  board  makes  such  a
  determination then it may make a new grant of medical parole pursuant to
  the  standards  of  paragraph (b) of subdivision one of this section. At
  the hearing, the releasee shall have  the  right  to  representation  by
  counsel,  including  the right, if the releasee is financially unable to
  retain  counsel,  to  have  the  appropriate  court  assign  counsel  in
  accordance  with  the  county  or city plan for representation placed in
  operation pursuant to article eighteen-B of the county law.

    (g) The hearing and determination provided for  by  paragraph  (f)  of
  this  subdivision  shall  be  concluded  within  the six month period of
  medical parole. If the board does not renew the grant of medical parole,
  it shall order that the releasee be returned immediately to the  custody
  of the department of correctional services.
    (h)  In  addition to the procedures set forth in paragraph (f) of this
  subdivision, medical parole may be revoked at any time upon any  of  the
  grounds  specified  in paragraph (a) of subdivision three of section two
  hundred fifty-nine-i  of  this  article,  and  in  accordance  with  the
  procedures  specified  in  subdivision  three  of  section  two  hundred
  fifty-nine-i of this article.
    (i) A releasee who is on medical parole and who becomes  eligible  for
  parole  pursuant  to  the  provisions  of subdivision two of section two
  hundred fifty-nine-i of  this  article  shall  be  eligible  for  parole
  consideration pursuant to such subdivision.
    5.  A  denial  of  release  on medical parole or expiration of medical
  parole in accordance with the provisions of paragraph (f) of subdivision
  four of this section shall not preclude the 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 chair 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 chair of the board shall report annually to the  governor,  the
  temporary  president  of the senate and the speaker of the assembly, the
  chairpersons  of  the  assembly  and  senate   codes   committees,   the
  chairperson  of  the  senate  crime  and  corrections committee, and the
  chairperson of the assembly corrections committee the number of  inmates
  who  have  applied for medical parole under this section; the number who
  have been granted medical parole; the  nature  of  the  illness  of  the
  applicants, the counties to which they have been released and the nature
  of  the placement pursuant to the medical discharge plan; the categories
  of reasons for denial for those who have  been  denied;  the  number  of
  releasees  who  have  been  granted  an  additional period or periods of
  medical parole and the number of such grants; the number of releasees on
  medical parole who have been returned to the custody of  the  department
  of correctional services and the reasons for return.