S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  9465

                          I N  A S S E M B L Y

                              March 5, 2012
                               ___________

Introduced  by M. of A. AUBRY -- read once and referred to the Committee
  on Correction

AN ACT to amend the executive law, in relation to medical parole

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Paragraph  (a)  of  subdivision 1 of section 259-r of the
executive law, as amended by section 38-l of subpart  A  of  part  C  of
chapter 62 of the laws of 2011, is amended to read as follows:
  (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] A
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 the term of his or her determinate sentence:
murder in the second degree,  manslaughter  in  the  first  degree,  any
offense  defined  in  article  one hundred thirty of the penal law or an
attempt to commit any of these  offenses.  Solely  for  the  purpose  of
determining  medical  parole  eligibility pursuant to this section, such
one-half of the minimum period of the indeterminate  sentence  and  one-
half  of the term of the determinate sentence shall not be credited with
any time served under the jurisdiction of the department  prior  to  the
commencement  of  such  sentence  pursuant  to  the opening paragraph of
subdivision one of section 70.30 of the penal law or  subdivision  two-a
of  section  70.30  of the penal law, except to the extent authorized by
subdivision three of section 70.30 of the penal law.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD14906-01-2

A. 9465                             2

  S 2. Paragraph (a) of subdivision 1 of section 259-r of the  executive
law,  as  amended by section 38-l-1 of subpart A of part C of chapter 62
of the laws of 2011, is amended to read as follows:
  (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] A
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 the term of his or her determinate sentence:
murder in the second degree,  manslaughter  in  the  first  degree,  any
offense  defined  in  article  one hundred thirty of the penal law or an
attempt to commit any of these  offenses.  Solely  for  the  purpose  of
determining  medical  parole  eligibility pursuant to this section, such
one-half of the minimum period of the indeterminate  sentence  and  one-
half  of the term of the determinate sentence shall not be credited with
any time served under the jurisdiction of the department  prior  to  the
commencement  of  such  sentence  pursuant  to  the opening paragraph of
subdivision one of section 70.30 of the penal law or  subdivision  two-a
of  section  70.30  of the penal law, except to the extent authorized by
subdivision three of section 70.30 of the penal law.
  S 3. Paragraph (b) of subdivision 2 of section 259-r of the  executive
law,  as amended by section 38-l of subpart A of part C of chapter 62 of
the laws of 2011, is amended to read as follows:
  (b) The commissioner, or the commissioner's designee, shall review the
diagnosis and may certify that the inmate is suffering from such  termi-
nal 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 soci-
ety] BE SEVERLY RESTRICTED IN HIS OR HER ABILITY TO SELF-AMBULATE OR  TO
PERFORM  SIGNIFICANT  NORMAL ACTIVITIES OF DAILY LIVING.  If the commis-
sioner does not so certify then the inmate shall not be referred to  the
board  for  consideration  for release on medical parole. If the commis-
sioner does so certify, then the commissioner shall, within seven  work-
ing days of receipt of such diagnosis, refer the inmate to the board for
consideration  for  release on medical parole. However, no such referral
of an inmate to the board shall be made unless the inmate has been exam-
ined by a physician  and  diagnosed  as  having  a  terminal  condition,
disease  or  syndrome as previously described herein at some time subse-
quent to such inmate's admission to a facility operated by  the  depart-
ment of correctional services.
  S  4.  Subdivision 4 of section 259-r of the executive law, as amended
by section 38-l of subpart A of part C of chapter  62  of  the  laws  of
2011, is amended to read as follows:
  4. (a) THE BOARD SHALL, UPON RECEIPT OF CERTIFICATION FROM THE COMMIS-
SIONER,  INDEPENDENTLY  DETERMINE WHETHER THE CONDITIONS UNDER WHICH THE
INMATE WOULD BE RELEASED CREATES A REASONABLE PROBABILITY THAT HE OR SHE
IS PHYSICALLY OR COGNITIVELY INCAPABLE OF PRESENTING A DANGER TO  SOCIE-

A. 9465                             3

TY.  THE  BOARD  SHALL  PROVIDE A DETERMINATION OF RELEASE WITHIN THIRTY
DAYS UPON RECEIPT OF CERTIFICATION FROM THE COMMISSIONER.
  (B)  Medical  parole  granted  pursuant to this section shall be for a
period of six months.
  [(b)] (C) 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 arti-
cle twenty-eight of the public health law, a hospice established  pursu-
ant  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 cogni-
tively 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 guardi-
an 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)] (D) Where appropriate, the board shall require as a condition of
release  that  medical  parolees be supervised on intensive caseloads at
reduced supervision ratios.
  [(d)] (E) 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)] (F) 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  condi-
tion, 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)] (F) Prior to the expiration of the period of medical parole  the
board  shall review the medical examination report required by paragraph
[(d)] (E) of this subdivision and may again grant medical parole  pursu-
ant to this section; provided, however, that the provisions of paragraph
(c)  of  subdivision  one  and subdivision two of this section shall not
apply.
  [(f)] (G) If the updated medical report presented to the board  states
that a parolee released pursuant to this section is no longer so debili-
tated  or incapacitated as to create a reasonable probability that he or
she is physically or cognitively incapable of presenting [any] A  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)] (F) of this subdivision. Where the board has not granted
medical parole pursuant to such paragraph  [(e)]  (F)  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 wheth-
er  the  releasee  is  suffering  from  a terminal condition, disease or
syndrome and is so debilitated or incapacitated as to create  a  reason-
able  probability  that he or she is physically or cognitively incapable
of presenting [any danger to society and does not present] a  danger  to

A. 9465                             4

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  appropri-
ate  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)] (H) The hearing and  determination  provided  for  by  paragraph
[(f)]  (G)  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.
  [(h)]  (I)  In addition to the procedures set forth in paragraph [(f)]
(G) 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)] (J) 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.
  S  5. Paragraph (a) of subdivision 1 of section 259-s of the executive
law, as amended by section 38-m of subpart A of part C of chapter 62  of
the laws of 2011, is amended to read as follows:
  (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 cogni-
tively debilitated or incapacitated as to create a reasonable probabili-
ty  that he or she does not present [any] A 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 the  term
of  his  or  her  determinate  sentence:    murder in the second degree,
manslaughter in the first degree, any offense  defined  in  article  one
hundred  thirty  of  the  penal law or an attempt to commit any of these
offenses. Solely for the purpose of determining medical parole eligibil-
ity pursuant to this section, such one-half of the minimum period of the
indeterminate sentence and one-half  of  the  term  of  the  determinate
sentence  shall not be credited with any time served under the jurisdic-
tion of the department prior to the commencement of such sentence pursu-
ant to the opening paragraph of subdivision one of section 70.30 of  the
penal law or subdivision two-a of section 70.30 of the penal law, except
to  the  extent  authorized by subdivision three of section 70.30 of the
penal law.
  S 6. Paragraph (b) of subdivision 2 of section 259-s of the  executive
law,  as amended by section 38-m of subpart A of part C of chapter 62 of
the laws of 2011, is amended to read as follows:

A. 9465                             5

  (b) The commissioner, or the commissioner's designee, shall review the
diagnosis and may certify that the inmate is suffering from such  condi-
tion, disease or syndrome and that the inmate is so debilitated or inca-
pacitated as to [create a reasonable probability that he or she is phys-
ically  or cognitively incapable of presenting any danger to society] BE
SEVERELY RESTRICTED IN HIS OR HER ABILITY TO SELF-AMBULATE OR TO PERFORM
SIGNIFICANT NORMAL ACTIVITIES OF DAILY LIVING.  If the commissioner does
not so certify then the inmate shall not be referred to  the  board  for
consideration  for  release on medical parole.  If the commissioner does
so certify, then the commissioner shall, within seven  working  days  of
receipt  of  such diagnosis, refer the inmate to the board for consider-
ation 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.
  S 7. Subdivision 4 of section 259-s of the executive law,  as  amended
by  section  38-m  of  subpart  A of part C of chapter 62 of the laws of
2011, is amended to read as follows:
  4. (a) THE BOARD SHALL, UPON RECEIPT OF CERTIFICATION FROM THE COMMIS-
SIONER, INDEPENDENTLY DETERMINE WHETHER THE CONDITIONS UNDER  WHICH  THE
INMATE WOULD BE RELEASED CREATES A REASONABLE PROBABILITY THAT HE OR SHE
IS  PHYSICALLY OR COGNITIVELY INCAPABLE OF PRESENTING A DANGER TO SOCIE-
TY. THE BOARD SHALL PROVIDE A DETERMINATION  OF  RELEASE  WITHIN  THIRTY
DAYS UPON RECEIPT OF CERTIFICATION FROM THE COMMISSIONER.
  (B)  Medical  parole  granted  pursuant to this section shall be for a
period of six months.
  [(b)] (C) 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 arti-
cle twenty-eight of the public health law, a hospice established  pursu-
ant  to  article  forty of the public health law or any other placement,
including a residence with family or others, that can provide  appropri-
ate  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  other-
wise  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)] (D) Where appropriate, the board shall require as a condition of
release that medical parolees be supervised on  intensive  caseloads  at
reduced supervision ratios.
  [(d)] (E) 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)] (F) 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

A. 9465                             6

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)] (F) Prior to the expiration of the period of medical parole  the
board  shall review the medical examination report required by paragraph
[(d)] (E) of this subdivision and may again grant medical parole  pursu-
ant to this section; provided, however, that the provisions of paragraph
(c)  of  subdivision  one  and subdivision two of this section shall not
apply.
  [(f)] (G) If the updated medical report presented to the board  states
that a parolee released pursuant to this section is no longer so debili-
tated  or incapacitated as to create a reasonable probability that he or
she is physically or cognitively incapable of presenting [any] A  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)] (F) of this subdivision. Where the board has not granted
medical parole pursuant to [such] paragraph [(e)] (F) OF  THIS  SUBDIVI-
SION  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 signif-
icant 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 inca-
pable 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  para-
graph  (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)] (H) The hearing and  determination  provided  for  by  paragraph
[(f)]  (G)  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)]  (I)  In addition to the procedures set forth in paragraph [(f)]
(G) 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)] (J) 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.
  S  8.  This act shall take effect immediately; provided, however, that
the amendments to paragraph (a) of subdivision 1 of section 259-r of the
executive law made by section one of this act shall be  subject  to  the
expiration  and reversion of such paragraph pursuant to subdivision d of
section 74 of chapter 3 of the laws of 1995, as amended, when upon  such
date the provisions of section two of this act shall take effect.