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

                                  4726

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            February 8, 2013
                               ___________

Introduced by M. of A. O'DONNELL, 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06251-01-3
              

A. 4726                             2

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  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:

A. 4726                             3

  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
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-

A. 4726                             4

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
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

A. 4726                             5

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:
  (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

A. 4726                             6

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 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

A. 4726                             7

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.