§ 259-r. Release on medical parole for terminally ill incarcerated
individuals. 1. * (a) The board shall have the power to release on
medical parole any incarcerated individual 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 incarcerated individual 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 incarcerated individual 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.

* NB Effective until September 1, 2025

* (a) The board shall have the power to release on medical parole any
incarcerated individual 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 incarcerated individual 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 incarcerated individual 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.

* NB Effective September 1, 2025

(b) Such release shall be granted only after the board considers
whether, in light of the incarcerated individual's medical condition,
there is a reasonable probability that the incarcerated individual, 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 incarcerated individual'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 incarcerated individual that
the incarcerated individual 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 incarcerated individual. Release on
medical parole shall not be granted until the expiration of the comment
period provided for in this paragraph.

2. (a) The commissioner, on the commissioner's own initiative or at
the request of an incarcerated individual, or an incarcerated
individual'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 incarcerated
individual 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, shall render
professional services at the request of the department, or shall be
employed by a hospital or medical facility used by the department for
the medical treatment of incarcerated individuals. The diagnosis shall
be reported to the commissioner and shall include but shall not be
limited to a description of the terminal condition, disease or syndrome
suffered by the incarcerated individual, a prognosis concerning the
likelihood that the incarcerated individual will not recover from such
terminal condition, disease or syndrome, a description of the
incarcerated individual'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 incarcerated individual
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
incarcerated individual 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 incarcerated individual is suffering
from such terminal condition, disease or syndrome and that the
incarcerated individual 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 incarcerated individual 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 incarcerated
individual to the board for consideration for release on medical parole.
However, no such referral of an incarcerated individual to the board
shall be made unless the incarcerated individual 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
incarcerated individual's admission to a facility operated by the
department of correctional services.

(c) When the commissioner refers an incarcerated individual to the
board, the commissioner shall provide an appropriate medical discharge
plan established by the department. The department is authorized to
request assistance from the department of health and from the county in
which the incarcerated individual 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 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 incarcerated individual 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 incarcerated individual'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 incarcerated individual is currently
incarcerated shall be lawfully empowered to act as the incarcerated
individual'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.

(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 incarcerated individual from
reapplying for medical parole or otherwise affect an incarcerated
individual'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 and the chairman of the board 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
incarcerated individuals 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 imprisonment in the custody of
the department and the reasons for return.

10. Notwithstanding any other provision of law, in the case of an
incarcerated individual whose terminal condition, disease or syndrome
meets the criteria for medical parole as set forth in paragraph (a) of
subdivision one of this section, and who is not serving a sentence for
one or more offenses set forth in paragraph (i) of subdivision one of
section eight hundred six of the correction law which would render such
incarcerated individual ineligible for presumptive release, the granting
of medical parole shall be determined by the commissioner provided that
a release of such incarcerated individual shall be in accordance with
subdivision eleven of this section. In such case, the provisions that
would have applied to and the procedures that would have been followed
by the board of parole pursuant to this section shall apply to and be
followed by the commissioner.

11. (a) After the commissioner has made a determination to grant
medical parole pursuant to subdivision ten of this section, the
commissioner shall notify the chairperson of the board of parole, or
their designee who shall be a member of the board of parole, and provide
him or her with all relevant records, files, information and
documentation, which includes but is not limited to the criminal
history, medical diagnosis and treatment pertaining to the terminally
ill incarcerated individual no more than five days from the date of the
determination. (b) The chairperson or his or her designee shall either
accept the commissioner's grant of medical parole, in which case the
incarcerated individual may be released by the commissioner, or conduct
further review. This decision or review shall be made within five days
of the receipt of the relevant records, files, information and
documentation from the commissioner. The chairperson's further review
may include, but not be limited to, an appearance by the terminally ill
incarcerated individual before the chairperson or his or her designee.
(c) After this further review, the chairperson shall either accept the
commissioner's grant of medical parole, in which case the incarcerated
individual may be released by the commissioner, or the chairperson shall
schedule an appearance for the terminally ill incarcerated individual
before the board of parole.

In the event the terminally ill incarcerated individual is scheduled
to make an appearance before the board of parole pursuant to this
subdivision, the matter shall be heard by a panel that does not include
the chairperson or any member of the board of parole who was involved in
the review of the commissioner's determination.