S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4036
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 31, 2017
                                ___________
 
 Introduced  by M. of A. WEPRIN, O'DONNELL, AUBRY, GOTTFRIED -- 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.
              

                                                            LBD04927-01-7

 A. 4036                             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.
   §  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.
   § 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 SEVERELY 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] CORRECTIONS AND COMMUNITY SUPERVISION.
   § 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. 4036                             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. 4036                             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.
   § 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. 4036                             5
 
 to the extent authorized by subdivision three of section  70.30  of  the
 penal law.
   §  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.
   §  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. 4036                             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.
   §  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. 4036                             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.