§ 259-s. Release on medical parole for incarcerated individuals
suffering significant debilitating illnesses. 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 significant and permanent non-terminal condition,
disease or syndrome that has rendered the incarcerated individual so
physically 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 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.

(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. In making this
determination, the board shall consider: (i) the nature and seriousness
of the incarcerated individual's crime; (ii) the incarcerated
individual's prior criminal record; (iii) the incarcerated individual's
disciplinary, behavioral and rehabilitative record during the term of
his or her incarceration; (iv) the amount of time the incarcerated
individual must serve before becoming eligible for release pursuant to
section two hundred fifty-nine-i of this article; (v) the current age of
the incarcerated individual and his or her age at the time of the crime;
(vi) the recommendations of the sentencing court, the district attorney
and the victim or the victim's representative; (vii) the nature of the
incarcerated individual's medical condition, disease or syndrome and the
extent of medical treatment or care that the incarcerated individual
will require as a result of that condition, disease or syndrome; and
(viii) any other relevant factor. 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, the attorney for the incarcerated individual and,
where necessary pursuant to subdivision two of section two hundred
fifty-nine-i of this article, the crime victim, that the incarcerated
individual is being considered for release pursuant to this section and
the parties receiving notice shall have thirty 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 significant and permanent
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, 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 condition, disease or syndrome suffered by the incarcerated
individual, a prognosis concerning the likelihood that the incarcerated
individual will not recover from such 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 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 of
parole shall be made unless the incarcerated individual 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
incarcerated individual's admission to a facility operated by the
department.

(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, including a residence with family or others, 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 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) 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 significant 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 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 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
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 chair 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 chair of the board 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 under this
section; 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.