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

                                  3813

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 28, 2009
                               ___________

Introduced  by  M. of A. AUBRY, BENJAMIN, ORTIZ, GREENE, MILLMAN, CLARK,
  PERALTA, GOTTFRIED, JEFFRIES, ROBINSON -- Multi-Sponsored by -- M.  of
  A.  BOYLAND,  BRADLEY, CAHILL, COOK, JACOBS, KELLNER, MAISEL, McENENY,
  REILLY, SCHIMEL  --  read  once  and  referred  to  the  Committee  on
  Correction

AN ACT to amend the executive law, in relation to the release on medical
  parole of certain inmates

  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 chapter 3 of the laws of 1995, 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, (I) has been certified
to be suffering from a terminal condition, disease or syndrome and to be
so PHYSICALLY OR COGNITIVELY debilitated or incapacitated as to create a
reasonable probability that  he  or  she  [is  physically  incapable  of
presenting]  DOES  NOT  PRESENT  any danger to society, OR (II) HAS BEEN
CERTIFIED TO BE SUFFERING FROM A SIGNIFICANT AND PERMANENT  NON-TERMINAL
CONDITION,  DISEASE  OR  SYNDROME  THAT HAS RENDERED THE INMATE SO PHYS-
ICALLY 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 any of the following offenses shall be eligible
for such release: murder in the  first  degree,  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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04437-01-9

A. 3813                             2
              

  S  2. Paragraph (a) of subdivision 1 of section 259-r of the executive
law, as added by chapter 55 of the laws of 1992, 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, (I) has been certified
to be suffering from a terminal condition, disease or syndrome and to be
so PHYSICALLY OR COGNITIVELY debilitated or incapacitated as to create a
reasonable  probability  that  he  or  she  [is  physically incapable of
presenting] DOES NOT PRESENT any danger to society,  OR  (II)  HAS  BEEN
CERTIFIED  TO BE SUFFERING FROM A SIGNIFICANT AND PERMANENT NON-TERMINAL
CONDITION, DISEASE OR SYNDROME THAT HAS RENDERED  THE  INMATE  SO  PHYS-
ICALLY  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 any of the following offenses  shall  be  eligible
for  such  release:  murder  in  the  first degree, 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.
  S 3. Subdivision 2 of section 259-r of the executive law,  as  amended
by chapter 503 of the laws of 1994, is amended to read as follows:
  2.  (a)  The commissioner of correctional services, on the commission-
er's own initiative or at the request of an inmate, AN INMATE'S  SPOUSE,
RELATIVE, ATTORNEY OR ADVOCATE OR BY DEPARTMENT OF CORRECTIONAL SERVICES
STAFF,  may,  in  the  exercise of the commissioner's discretion, direct
that a diagnosis be made of an inmate who appears to be suffering from a
terminal condition, disease or syndrome OR FROM A SIGNIFICANT AND PERMA-
NENT 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 correc-
tional services and  shall  include  but  shall  not  be  limited  to  a
description of the [terminal] condition, disease or syndrome suffered by
the  inmate,  a prognosis concerning the likelihood that the inmate will
not recover from such  [terminal]  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 [and to care for him or herself] OR TO PERFORM SIGNIFICANT
NORMAL ACTIVITIES OF DAILY LIVING.
  (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 PHYSICALLY
OR  COGNITIVELY  debilitated  or incapacitated as to create a reasonable
probability that he or she is [physically] 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  THREE WORKING DAYS OF RECEIPT OF SUCH

A. 3813                             3

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 terminal OR SIGNIFICANT AND PERMA-
NENT NON-TERMINAL AND INCAPACITATING 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 commis-
sioner shall provide an appropriate medical discharge  plan  established
by the department of correctional services. The board may [reject all or
part  of the] REVIEW, ALTER AND IMPROVE SUCH discharge plan submitted by
the department of correctional services, and may postpone  its  decision
pending  [submission of a new] COMPLETION OF AN ADEQUATE discharge plan,
or may deny release based on  inadequacy  of  the  discharge  plan.  The
department  of  correctional  services  and  the  division of parole ARE
AUTHORIZED TO REQUEST ASSISTANCE FROM  THE  DEPARTMENT  OF  HEALTH  WITH
RESPECT  TO  THE IMPLEMENTATION OF A DISCHARGE PLAN, INCLUDING POTENTIAL
PLACEMENTS OF A RELEASEE, AND 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.
  S  4. Subdivision 4 of section 259-r of the executive law, as added by
chapter 55 of the laws of 1992 and paragraphs (a) and (d) as amended  by
chapter 503 of the laws of 1994, is amended to read as follows:
  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  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.
  (c) The board shall require as a condition  of  release  that  medical
parolees  be supervised on [intensive] caseloads [at reduced supervision
ratios similar to the caseloads for parolees released  pursuant  to  the
shock  incarceration  program established by article twenty-six-A of the
correction law] AS IS APPROPRIATE FOR THE MAINTENANCE OF PUBLIC SAFETY.
  (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 wheth-
er or not the parolee continues to suffer from a terminal OR SIGNIFICANT
AND  PERMANENT  NON-TERMINAL  AND  INCAPACITATING condition, disease, or
syndrome, and to be so debilitated or incapacitated as  to  be  severely
restricted  in  his or her ability to self-ambulate [and to care for him
or herself] 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

A. 3813                             4

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 PHYSICALLY OR
COGNITIVELY debilitated or incapacitated as to create a reasonable prob-
ability that he or she  is  [physically]  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 pursu-
ant to paragraph (e) of this subdivision. Where the board has not grant-
ed medical parole pursuant to such paragraph (e) the board shall prompt-
ly 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 OR SIGNIFICANT  AND  PERMANENT
NON-TERMINAL AND INCAPACITATING condition, disease or syndrome and is so
PHYSICALLY  OR  COGNITIVELY  debilitated or incapacitated as to create a
reasonable probability that  he  or  she  [is  physically  incapable  of
presenting] DOES NOT PRESENT 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 [four] 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 proce-
dures 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.
  S  5. This act shall take effect immediately, provided that the amend-
ments to paragraph (a) of subdivision 1 of section 259-r of  the  execu-
tive law made by section one of this act shall be subject to the expira-
tion  and  reversion  of  such  subdivision 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; and
provided further that the amendments to section 259-r of  the  executive
law  made  by  sections two, three and four of this act shall not affect
the expiration of such section and shall be deemed to expire therewith.