STATE OF NEW YORK ________________________________________________________________________ 4036 2017-2018 Regular Sessions IN ASSEMBLY 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: 1 Section 1. Paragraph (a) of subdivision 1 of section 259-r of the 2 executive law, as amended by section 38-l of subpart A of part C of 3 chapter 62 of the laws of 2011, is amended to read as follows: 4 (a) The board shall have the power to release on medical parole any 5 inmate serving an indeterminate or determinate sentence of imprisonment 6 who, pursuant to subdivision two of this section, has been certified to 7 be suffering from a terminal condition, disease or syndrome and to be so 8 debilitated or incapacitated as to create a reasonable probability that 9 he or she is physically or cognitively incapable of presenting [~~any~~] a 10 danger to society, provided, however, that no inmate serving a sentence 11 imposed upon a conviction for murder in the first degree or an attempt 12 or conspiracy to commit murder in the first degree shall be eligible for 13 such release, and provided further that no inmate serving a sentence 14 imposed upon a conviction for any of the following offenses shall be 15 eligible for such release unless in the case of an indeterminate 16 sentence he or she has served at least one-half of the minimum period of 17 the sentence and in the case of a determinate sentence he or she has 18 served at least one-half of the term of his or her determinate sentence: 19 murder in the second degree, manslaughter in the first degree, any 20 offense defined in article one hundred thirty of the penal law or an 21 attempt to commit any of these offenses. Solely for the purpose of 22 determining medical parole eligibility pursuant to this section, such 23 one-half of the minimum period of the indeterminate sentence and one- 24 half of the term of the determinate sentence shall not be credited with 25 any time served under the jurisdiction of the department prior to the 26 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 1 subdivision one of section 70.30 of the penal law or subdivision two-a 2 of section 70.30 of the penal law, except to the extent authorized by 3 subdivision three of section 70.30 of the penal law. 4 § 2. Paragraph (a) of subdivision 1 of section 259-r of the executive 5 law, as amended by section 38-l-1 of subpart A of part C of chapter 62 6 of the laws of 2011, is amended to read as follows: 7 (a) The board shall have the power to release on medical parole any 8 inmate serving an indeterminate or determinate sentence of imprisonment 9 who, pursuant to subdivision two of this section, has been certified to 10 be suffering from a terminal condition, disease or syndrome and to be so 11 debilitated or incapacitated as to create a reasonable probability that 12 he or she is physically or cognitively incapable of presenting [~~any~~] a 13 danger to society, provided, however, that no inmate serving a sentence 14 imposed upon a conviction for murder in the first degree or an attempt 15 or conspiracy to commit murder in the first degree shall be eligible for 16 such release, and provided further that no inmate serving a sentence 17 imposed upon a conviction for any of the following offenses shall be 18 eligible for such release unless in the case of an indeterminate 19 sentence he or she has served at least one-half of the minimum period of 20 the sentence and in the case of a determinate sentence he or she has 21 served at least one-half of the term of his or her determinate sentence: 22 murder in the second degree, manslaughter in the first degree, any 23 offense defined in article one hundred thirty of the penal law or an 24 attempt to commit any of these offenses. Solely for the purpose of 25 determining medical parole eligibility pursuant to this section, such 26 one-half of the minimum period of the indeterminate sentence and one- 27 half of the term of the determinate sentence shall not be credited with 28 any time served under the jurisdiction of the department prior to the 29 commencement of such sentence pursuant to the opening paragraph of 30 subdivision one of section 70.30 of the penal law or subdivision two-a 31 of section 70.30 of the penal law, except to the extent authorized by 32 subdivision three of section 70.30 of the penal law. 33 § 3. Paragraph (b) of subdivision 2 of section 259-r of the executive 34 law, as amended by section 38-l of subpart A of part C of chapter 62 of 35 the laws of 2011, is amended to read as follows: 36 (b) The commissioner, or the commissioner's designee, shall review the 37 diagnosis and may certify that the inmate is suffering from such termi- 38 nal condition, disease or syndrome and that the inmate is so debilitated 39 or incapacitated as to [~~create a reasonable probability that he or she~~ 40 ~~is physically or cognitively incapable of presenting any danger to soci-~~ 41 ~~ety~~] be severely restricted in his or her ability to self-ambulate or to 42 perform significant normal activities of daily living. If the commis- 43 sioner does not so certify then the inmate shall not be referred to the 44 board for consideration for release on medical parole. If the commis- 45 sioner does so certify, then the commissioner shall, within seven work- 46 ing days of receipt of such diagnosis, refer the inmate to the board for 47 consideration for release on medical parole. However, no such referral 48 of an inmate to the board shall be made unless the inmate has been exam- 49 ined by a physician and diagnosed as having a terminal condition, 50 disease or syndrome as previously described herein at some time subse- 51 quent to such inmate's admission to a facility operated by the depart- 52 ment of [~~correctional services~~] corrections and community supervision. 53 § 4. Subdivision 4 of section 259-r of the executive law, as amended 54 by section 38-l of subpart A of part C of chapter 62 of the laws of 55 2011, is amended to read as follows:

A. 4036 3 1 4. (a) The board shall, upon receipt of certification from the commis- 2 sioner, independently determine whether the conditions under which the 3 inmate would be released creates a reasonable probability that he or she 4 is physically or cognitively incapable of presenting a danger to socie- 5 ty. The board shall provide a determination of release within thirty 6 days upon receipt of certification from the commissioner. 7 (b) Medical parole granted pursuant to this section shall be for a 8 period of six months. 9 [~~(b)~~] (c) The board shall require as a condition of release on medical 10 parole that the releasee agree to remain under the care of a physician 11 while on medical parole and in a hospital established pursuant to arti- 12 cle twenty-eight of the public health law, a hospice established pursu- 13 ant to article forty of the public health law or any other placement 14 that can provide appropriate medical care as specified in the medical 15 discharge plan required by subdivision two of this section. The medical 16 discharge plan shall state that the availability of the placement has 17 been confirmed, and by whom. Notwithstanding any other provision of law, 18 when an inmate who qualifies for release under this section is cogni- 19 tively incapable of signing the requisite documentation to effectuate 20 the medical discharge plan and, after a diligent search no person has 21 been identified who could otherwise be appointed as the inmate's guardi- 22 an by a court of competent jurisdiction, then, solely for the purpose of 23 implementing the medical discharge plan, the facility health services 24 director at the facility where the inmate is currently incarcerated 25 shall be lawfully empowered to act as the inmate's guardian for the 26 purpose of effectuating the medical discharge. 27 [~~(c)~~] (d) Where appropriate, the board shall require as a condition of 28 release that medical parolees be supervised on intensive caseloads at 29 reduced supervision ratios. 30 [~~(d)~~] (e) The board shall require as a condition of release on medical 31 parole that the releasee undergo periodic medical examinations and a 32 medical examination at least one month prior to the expiration of the 33 period of medical parole and, for the purposes of making a decision 34 pursuant to paragraph [~~(e)~~] (f) of this subdivision, that the releasee 35 provide the board with a report, prepared by the treating physician, of 36 the results of such examination. Such report shall specifically state 37 whether or not the parolee continues to suffer from a terminal condi- 38 tion, disease, or syndrome, and to be so debilitated or incapacitated as 39 to be severely restricted in his or her ability to self-ambulate or to 40 perform significant normal activities of daily living. 41 [~~(e)~~] (f) Prior to the expiration of the period of medical parole the 42 board shall review the medical examination report required by paragraph 43 [~~(d)~~] (e) of this subdivision and may again grant medical parole pursu- 44 ant to this section; provided, however, that the provisions of paragraph 45 (c) of subdivision one and subdivision two of this section shall not 46 apply. 47 [~~(f)~~] (g) If the updated medical report presented to the board states 48 that a parolee released pursuant to this section is no longer so debili- 49 tated or incapacitated as to create a reasonable probability that he or 50 she is physically or cognitively incapable of presenting [~~any~~] a danger 51 to society or if the releasee fails to submit the updated medical report 52 then the board may not make a new grant of medical parole pursuant to 53 paragraph [~~(e)~~] (f) of this subdivision. Where the board has not granted 54 medical parole pursuant to such paragraph [~~(e)~~] (f) the board shall 55 promptly conduct through one of its members, or cause to be conducted by 56 a hearing officer designated by the board, a hearing to determine wheth-

A. 4036 4 1 er the releasee is suffering from a terminal condition, disease or 2 syndrome and is so debilitated or incapacitated as to create a reason- 3 able probability that he or she is physically or cognitively incapable 4 of presenting [~~any danger to society and does not present~~] a danger to 5 society. If the board makes such a determination then it may make a new 6 grant of medical parole pursuant to the standards of paragraph (b) of 7 subdivision one of this section. At the hearing, the releasee shall have 8 the right to representation by counsel, including the right, if the 9 releasee is financially unable to retain counsel, to have the appropri- 10 ate court assign counsel in accordance with the county or city plan for 11 representation placed in operation pursuant to article eighteen-B of the 12 county law. 13 [~~(g)~~] (h) The hearing and determination provided for by paragraph 14 [~~(f)~~] (g) of this subdivision shall be concluded within the six month 15 period of medical parole. If the board does not renew the grant of 16 medical parole, it shall order that the releasee be returned immediately 17 to the custody of the department. 18 [~~(h)~~] (i) In addition to the procedures set forth in paragraph [~~(f)~~] 19 (g) of this subdivision, medical parole may be revoked at any time upon 20 any of the grounds specified in paragraph (a) of subdivision three of 21 section two hundred fifty-nine-i of this article, and in accordance with 22 the procedures specified in subdivision three of section two hundred 23 fifty-nine-i of this article. 24 [~~(i)~~] (j) A releasee who is on medical parole and who becomes eligible 25 for parole pursuant to the provisions of subdivision two of section two 26 hundred fifty-nine-i of this article shall be eligible for parole 27 consideration pursuant to such subdivision. 28 § 5. Paragraph (a) of subdivision 1 of section 259-s of the executive 29 law, as amended by section 38-m of subpart A of part C of chapter 62 of 30 the laws of 2011, is amended to read as follows: 31 (a) The board shall have the power to release on medical parole any 32 inmate serving an indeterminate or determinate sentence of imprisonment 33 who, pursuant to subdivision two of this section, has been certified to 34 be suffering from a significant and permanent non-terminal condition, 35 disease or syndrome that has rendered the inmate so physically or cogni- 36 tively debilitated or incapacitated as to create a reasonable probabili- 37 ty that he or she does not present [~~any~~] a danger to society, provided, 38 however, that no inmate serving a sentence imposed upon a conviction for 39 murder in the first degree or an attempt or conspiracy to commit murder 40 in the first degree shall be eligible for such release, and provided 41 further that no inmate serving a sentence imposed upon a conviction for 42 any of the following offenses shall be eligible for such release unless 43 in the case of an indeterminate sentence he or she has served at least 44 one-half of the minimum period of the sentence and in the case of a 45 determinate sentence he or she has served at least one-half of the term 46 of his or her determinate sentence: murder in the second degree, 47 manslaughter in the first degree, any offense defined in article one 48 hundred thirty of the penal law or an attempt to commit any of these 49 offenses. Solely for the purpose of determining medical parole eligibil- 50 ity pursuant to this section, such one-half of the minimum period of the 51 indeterminate sentence and one-half of the term of the determinate 52 sentence shall not be credited with any time served under the jurisdic- 53 tion of the department prior to the commencement of such sentence pursu- 54 ant to the opening paragraph of subdivision one of section 70.30 of the 55 penal law or subdivision two-a of section 70.30 of the penal law, except

A. 4036 5 1 to the extent authorized by subdivision three of section 70.30 of the 2 penal law. 3 § 6. Paragraph (b) of subdivision 2 of section 259-s of the executive 4 law, as amended by section 38-m of subpart A of part C of chapter 62 of 5 the laws of 2011, is amended to read as follows: 6 (b) The commissioner, or the commissioner's designee, shall review the 7 diagnosis and may certify that the inmate is suffering from such condi- 8 tion, disease or syndrome and that the inmate is so debilitated or inca- 9 pacitated as to [~~create a reasonable probability that he or she is phys-~~ 10 ~~ically or cognitively incapable of presenting any danger to society~~] be 11 severely restricted in his or her ability to self-ambulate or to perform 12 significant normal activities of daily living. If the commissioner does 13 not so certify then the inmate shall not be referred to the board for 14 consideration for release on medical parole. If the commissioner does 15 so certify, then the commissioner shall, within seven working days of 16 receipt of such diagnosis, refer the inmate to the board for consider- 17 ation for release on medical parole. However, no such referral of an 18 inmate to the board of parole shall be made unless the inmate has been 19 examined by a physician and diagnosed as having a condition, disease or 20 syndrome as previously described herein at some time subsequent to such 21 inmate's admission to a facility operated by the department. 22 § 7. Subdivision 4 of section 259-s of the executive law, as amended 23 by section 38-m of subpart A of part C of chapter 62 of the laws of 24 2011, is amended to read as follows: 25 4. (a) The board shall, upon receipt of certification from the commis- 26 sioner, independently determine whether the conditions under which the 27 inmate would be released creates a reasonable probability that he or she 28 is physically or cognitively incapable of presenting a danger to socie- 29 ty. The board shall provide a determination of release within thirty 30 days upon receipt of certification from the commissioner. 31 (b) Medical parole granted pursuant to this section shall be for a 32 period of six months. 33 [~~(b)~~] (c) The board shall require as a condition of release on medical 34 parole that the releasee agree to remain under the care of a physician 35 while on medical parole and in a hospital established pursuant to arti- 36 cle twenty-eight of the public health law, a hospice established pursu- 37 ant to article forty of the public health law or any other placement, 38 including a residence with family or others, that can provide appropri- 39 ate medical care as specified in the medical discharge plan required by 40 subdivision two of this section. The medical discharge plan shall state 41 that the availability of the placement has been confirmed, and by whom. 42 Notwithstanding any other provision of law, when an inmate who qualifies 43 for release under this section is cognitively incapable of signing the 44 requisite documentation to effectuate the medical discharge plan and, 45 after a diligent search no person has been identified who could other- 46 wise be appointed as the inmate's guardian by a court of competent 47 jurisdiction, then, solely for the purpose of implementing the medical 48 discharge plan, the facility health services director at the facility 49 where the inmate is currently incarcerated shall be lawfully empowered 50 to act as the inmate's guardian for the purpose of effectuating the 51 medical discharge. 52 [~~(c)~~] (d) Where appropriate, the board shall require as a condition of 53 release that medical parolees be supervised on intensive caseloads at 54 reduced supervision ratios. 55 [~~(d)~~] (e) The board shall require as a condition of release on medical 56 parole that the releasee undergo periodic medical examinations and a

A. 4036 6 1 medical examination at least one month prior to the expiration of the 2 period of medical parole and, for the purposes of making a decision 3 pursuant to paragraph [~~(e)~~] (f) of this subdivision, that the releasee 4 provide the board with a report, prepared by the treating physician, of 5 the results of such examination. Such report shall specifically state 6 whether or not the parolee continues to suffer from a significant and 7 permanent non-terminal and debilitating condition, disease, or syndrome, 8 and to be so debilitated or incapacitated as to be severely restricted 9 in his or her ability to self-ambulate or to perform significant normal 10 activities of daily living. 11 [~~(e)~~] (f) Prior to the expiration of the period of medical parole the 12 board shall review the medical examination report required by paragraph 13 [~~(d)~~] (e) of this subdivision and may again grant medical parole pursu- 14 ant to this section; provided, however, that the provisions of paragraph 15 (c) of subdivision one and subdivision two of this section shall not 16 apply. 17 [~~(f)~~] (g) If the updated medical report presented to the board states 18 that a parolee released pursuant to this section is no longer so debili- 19 tated or incapacitated as to create a reasonable probability that he or 20 she is physically or cognitively incapable of presenting [~~any~~] a danger 21 to society or if the releasee fails to submit the updated medical report 22 then the board may not make a new grant of medical parole pursuant to 23 paragraph [~~(e)~~] (f) of this subdivision. Where the board has not granted 24 medical parole pursuant to [~~such~~] paragraph [~~(e)~~] (f) of this subdivi- 25 sion the board shall promptly conduct through one of its members, or 26 cause to be conducted by a hearing officer designated by the board, a 27 hearing to determine whether the releasee is suffering from a signif- 28 icant and permanent non-terminal and incapacitating condition, disease 29 or syndrome and is so debilitated or incapacitated as to create a 30 reasonable probability that he or she is physically or cognitively inca- 31 pable of presenting [~~any danger to society and does not present~~] a 32 danger to society. If the board makes such a determination then it may 33 make a new grant of medical parole pursuant to the standards of para- 34 graph (b) of subdivision one of this section. At the hearing, the 35 releasee shall have the right to representation by counsel, including 36 the right, if the releasee is financially unable to retain counsel, to 37 have the appropriate court assign counsel in accordance with the county 38 or city plan for representation placed in operation pursuant to article 39 eighteen-B of the county law. 40 [~~(g)~~] (h) The hearing and determination provided for by paragraph 41 [~~(f)~~] (g) of this subdivision shall be concluded within the six month 42 period of medical parole. If the board does not renew the grant of 43 medical parole, it shall order that the releasee be returned immediately 44 to the custody of the department of correctional services. 45 [~~(h)~~] (i) In addition to the procedures set forth in paragraph [~~(f)~~] 46 (g) of this subdivision, medical parole may be revoked at any time upon 47 any of the grounds specified in paragraph (a) of subdivision three of 48 section two hundred fifty-nine-i of this article, and in accordance with 49 the procedures specified in subdivision three of section two hundred 50 fifty-nine-i of this article. 51 [~~(i)~~] (j) A releasee who is on medical parole and who becomes eligible 52 for parole pursuant to the provisions of subdivision two of section two 53 hundred fifty-nine-i of this article shall be eligible for parole 54 consideration pursuant to such subdivision. 55 § 8. This act shall take effect immediately; provided, however, that 56 the amendments to paragraph (a) of subdivision 1 of section 259-r of the

A. 4036 7 1 executive law made by section one of this act shall be subject to the 2 expiration and reversion of such paragraph pursuant to subdivision d of 3 section 74 of chapter 3 of the laws of 1995, as amended, when upon such 4 date the provisions of section two of this act shall take effect.

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