STATE OF NEW YORK ________________________________________________________________________ 7190 2023-2024 Regular Sessions IN ASSEMBLY May 12, 2023 ___________ Introduced by M. of A. DILAN -- 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 14 of chapter 322 of the laws of 3 2021, is amended to read as follows: 4 (a) The board shall have the power to release on medical parole any 5 incarcerated individual serving an indeterminate or determinate sentence 6 of imprisonment who, pursuant to subdivision two of this section, has 7 been certified to be suffering from a terminal condition, disease or 8 syndrome and to be so debilitated or incapacitated as to create a 9 reasonable probability that he or she is physically or cognitively inca- 10 pable of presenting [~~any~~] a danger to society, provided, however, that 11 no incarcerated individual serving a sentence imposed upon a conviction 12 for murder in the first degree or an attempt or conspiracy to commit 13 murder in the first degree shall be eligible for such release, and 14 provided further that no incarcerated individual serving a sentence 15 imposed upon a conviction for any of the following offenses shall be 16 eligible for such release unless in the case of an indeterminate 17 sentence he or she has served at least one-half of the minimum period of 18 the sentence and in the case of a determinate sentence he or she has 19 served at least one-half of the term of his or her determinate sentence: 20 murder in the second degree, manslaughter in the first degree, any 21 offense defined in article one hundred thirty of the penal law or an 22 attempt to commit any of these offenses. Solely for the purpose of 23 determining medical parole eligibility pursuant to this section, such 24 one-half of the minimum period of the indeterminate sentence and one- 25 half of the term of the determinate sentence shall not be credited with 26 any time served under the jurisdiction of the department prior to the EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00263-01-3

A. 7190 2 1 commencement of such sentence pursuant to the opening paragraph of 2 subdivision one of section 70.30 of the penal law or subdivision two-a 3 of section 70.30 of the penal law, except to the extent authorized by 4 subdivision three of section 70.30 of the penal law. 5 § 2. Paragraph (a) of subdivision 1 of section 259-r of the executive 6 law, as amended by section 14-a of chapter 322 of the laws of 2021, is 7 amended to read as follows: 8 (a) The board shall have the power to release on medical parole any 9 incarcerated individual serving an indeterminate or determinate sentence 10 of imprisonment who, pursuant to subdivision two of this section, has 11 been certified to be suffering from a terminal condition, disease or 12 syndrome and to be so debilitated or incapacitated as to create a 13 reasonable probability that he or she is physically or cognitively inca- 14 pable of presenting [~~any~~] a danger to society, provided, however, that 15 no incarcerated individual serving a sentence imposed upon a conviction 16 for murder in the first degree or an attempt or conspiracy to commit 17 murder in the first degree shall be eligible for such release, and 18 provided further that no incarcerated individual serving a sentence 19 imposed upon a conviction for any of the following offenses shall be 20 eligible for such release unless in the case of an indeterminate 21 sentence he or she has served at least one-half of the minimum period of 22 the sentence and in the case of a determinate sentence he or she has 23 served at least one-half of the term of his or her determinate sentence: 24 murder in the second degree, manslaughter in the first degree, any 25 offense defined in article one hundred thirty of the penal law or an 26 attempt to commit any of these offenses. Solely for the purpose of 27 determining medical parole eligibility pursuant to this section, such 28 one-half of the minimum period of the indeterminate sentence and one- 29 half of the term of the determinate sentence shall not be credited with 30 any time served under the jurisdiction of the department prior to the 31 commencement of such sentence pursuant to the opening paragraph of 32 subdivision one of section 70.30 of the penal law or subdivision two-a 33 of section 70.30 of the penal law, except to the extent authorized by 34 subdivision three of section 70.30 of the penal law. 35 § 3. Paragraph (b) of subdivision 2 of section 259-r of the executive 36 law, as amended by chapter 322 of the laws of 2021, is amended to read 37 as follows: 38 (b) The commissioner, or the commissioner's designee, shall review the 39 diagnosis and may certify that the incarcerated individual is suffering 40 from such terminal condition, disease or syndrome and that the incarcer- 41 ated individual is so debilitated or incapacitated as to [~~create a~~ 42 ~~reasonable probability that he or she is physically or cognitively inca-~~ 43 ~~pable of presenting any danger to society~~] be severely restricted in his 44 or her ability to self-ambulate or to perform significant normal activ- 45 ities of daily living. If the commissioner does not so certify then the 46 incarcerated individual shall not be referred to the board for consider- 47 ation for release on medical parole. If the commissioner does so certi- 48 fy, then the commissioner shall, within seven working days of receipt of 49 such diagnosis, refer the incarcerated individual to the board for 50 consideration for release on medical parole. However, no such referral 51 of an incarcerated individual to the board shall be made unless the 52 incarcerated individual has been examined by a physician and diagnosed 53 as having a terminal condition, disease or syndrome as previously 54 described herein at some time subsequent to such incarcerated individ- 55 ual's admission to a facility operated by the department of [~~correction-~~ 56 ~~al services~~] corrections and community supervision.

A. 7190 3 1 § 4. Subdivision 4 of section 259-r of the executive law, as amended 2 by section 38-l of subpart A of part C of chapter 62 of the laws of 3 2011, paragraph (b) as amended by chapter 322 of the laws of 2021, is 4 amended to read as follows: 5 4. (a) The board shall, upon receipt of certification from the commis- 6 sioner, independently determine whether the conditions under which the 7 incarcerated individual would be released creates a reasonable probabil- 8 ity that he or she is physically or cognitively incapable of presenting 9 a danger to society. The board shall provide a determination of release 10 within thirty days upon receipt of certification from the commissioner. 11 (b) Medical parole granted pursuant to this section shall be for a 12 period of six months. 13 [~~(b)~~] (c) The board shall require as a condition of release on medical 14 parole that the releasee agree to remain under the care of a physician 15 while on medical parole and in a hospital established pursuant to arti- 16 cle twenty-eight of the public health law, a hospice established pursu- 17 ant to article forty of the public health law or any other placement 18 that can provide appropriate medical care as specified in the medical 19 discharge plan required by subdivision two of this section. The medical 20 discharge plan shall state that the availability of the placement has 21 been confirmed, and by whom. Notwithstanding any other provision of law, 22 when an incarcerated individual who qualifies for release under this 23 section is cognitively incapable of signing the requisite documentation 24 to effectuate the medical discharge plan and, after a diligent search no 25 person has been identified who could otherwise be appointed as the 26 incarcerated individual's guardian by a court of competent jurisdiction, 27 then, solely for the purpose of implementing the medical discharge plan, 28 the facility health services director at the facility where the incar- 29 cerated individual is currently incarcerated shall be lawfully empowered 30 to act as the incarcerated individual's guardian for the purpose of 31 effectuating the medical discharge. 32 [~~(c)~~] (d) Where appropriate, the board shall require as a condition of 33 release that medical parolees be supervised on intensive caseloads at 34 reduced supervision ratios. 35 [~~(d)~~] (e) The board shall require as a condition of release on medical 36 parole that the releasee undergo periodic medical examinations and a 37 medical examination at least one month prior to the expiration of the 38 period of medical parole and, for the purposes of making a decision 39 pursuant to paragraph [~~(e)~~] (f) of this subdivision, that the releasee 40 provide the board with a report, prepared by the treating physician, of 41 the results of such examination. Such report shall specifically state 42 whether or not the parolee continues to suffer from a terminal condi- 43 tion, disease, or syndrome, and to be so debilitated or incapacitated as 44 to be severely restricted in his or her ability to self-ambulate or to 45 perform significant normal activities of daily living. 46 [~~(e)~~] (f) Prior to the expiration of the period of medical parole the 47 board shall review the medical examination report required by paragraph 48 [~~(d)~~] (e) of this subdivision and may again grant medical parole pursu- 49 ant to this section; provided, however, that the provisions of paragraph 50 (c) of subdivision one and subdivision two of this section shall not 51 apply. 52 [~~(f)~~] (g) If the updated medical report presented to the board states 53 that a parolee released pursuant to this section is no longer so debili- 54 tated or incapacitated as to create a reasonable probability that he or 55 she is physically or cognitively incapable of presenting [~~any~~] a danger 56 to society or if the releasee fails to submit the updated medical report

A. 7190 4 1 then the board may not make a new grant of medical parole pursuant to 2 paragraph [~~(e)~~] (f) of this subdivision. Where the board has not granted 3 medical parole pursuant to such paragraph [~~(e)~~] (f) the board shall 4 promptly conduct through one of its members, or cause to be conducted by 5 a hearing officer designated by the board, a hearing to determine wheth- 6 er the releasee is suffering from a terminal condition, disease or 7 syndrome and is so debilitated or incapacitated as to create a reason- 8 able probability that he or she is physically or cognitively incapable 9 of presenting [~~any danger to society and does not present~~] a danger to 10 society. If the board makes such a determination then it may make a new 11 grant of medical parole pursuant to the standards of paragraph (b) of 12 subdivision one of this section. At the hearing, the releasee shall have 13 the right to representation by counsel, including the right, if the 14 releasee is financially unable to retain counsel, to have the appropri- 15 ate court assign counsel in accordance with the county or city plan for 16 representation placed in operation pursuant to article eighteen-B of the 17 county law. 18 [~~(g)~~] (h) The hearing and determination provided for by paragraph 19 [~~(f)~~] (g) of this subdivision shall be concluded within the six month 20 period of medical parole. If the board does not renew the grant of 21 medical parole, it shall order that the releasee be returned immediately 22 to the custody of the department. 23 [~~(h)~~] (i) In addition to the procedures set forth in paragraph [~~(f)~~] 24 (g) of this subdivision, medical parole may be revoked at any time upon 25 any of the grounds specified in paragraph (a) of subdivision three of 26 section two hundred fifty-nine-i of this article, and in accordance with 27 the procedures specified in subdivision three of section two hundred 28 fifty-nine-i of this article. 29 [~~(i)~~] (j) A releasee who is on medical parole and who becomes eligible 30 for parole pursuant to the provisions of subdivision two of section two 31 hundred fifty-nine-i of this article shall be eligible for parole 32 consideration pursuant to such subdivision. 33 § 5. Paragraph (a) of subdivision 1 of section 259-s of the executive 34 law, as amended by chapter 322 of the laws of 2021, is amended to read 35 as follows: 36 (a) The board shall have the power to release on medical parole any 37 incarcerated individual serving an indeterminate or determinate sentence 38 of imprisonment who, pursuant to subdivision two of this section, has 39 been certified to be suffering from a significant and permanent non-ter- 40 minal condition, disease or syndrome that has rendered the incarcerated 41 individual so physically or cognitively debilitated or incapacitated as 42 to create a reasonable probability that he or she does not present [~~any~~] 43 a danger to society, provided, however, that no incarcerated individual 44 serving a sentence imposed upon a conviction for murder in the first 45 degree or an attempt or conspiracy to commit murder in the first degree 46 shall be eligible for such release, and provided further that no incar- 47 cerated individual serving a sentence imposed upon a conviction for any 48 of the following offenses shall be eligible for such release unless in 49 the case of an indeterminate sentence he or she has served at least 50 one-half of the minimum period of the sentence and in the case of a 51 determinate sentence he or she has served at least one-half of the term 52 of his or her determinate sentence: murder in the second degree, 53 manslaughter in the first degree, any offense defined in article one 54 hundred thirty of the penal law or an attempt to commit any of these 55 offenses. Solely for the purpose of determining medical parole eligibil- 56 ity pursuant to this section, such one-half of the minimum period of the

A. 7190 5 1 indeterminate sentence and one-half of the term of the determinate 2 sentence shall not be credited with any time served under the jurisdic- 3 tion of the department prior to the commencement of such sentence pursu- 4 ant to the opening paragraph of subdivision one of section 70.30 of the 5 penal law or subdivision two-a of section 70.30 of the penal law, except 6 to the extent authorized by subdivision three of section 70.30 of the 7 penal law. 8 § 6. Paragraph (b) of subdivision 2 of section 259-s of the executive 9 law, as amended by chapter 322 of the laws of 2021, is amended to read 10 as follows: 11 (b) The commissioner, or the commissioner's designee, shall review the 12 diagnosis and may certify that the incarcerated individual is suffering 13 from such condition, disease or syndrome and that the incarcerated indi- 14 vidual is so debilitated or incapacitated as to [~~create a reasonable~~ 15 ~~probability that he or she is physically or cognitively incapable of~~ 16 ~~presenting any danger to society~~] be severely restricted in his or her 17 ability to self-ambulate or to perform significant normal activities of 18 daily living. If the commissioner does not so certify then the incarcer- 19 ated individual shall not be referred to the board for consideration for 20 release on medical parole. If the commissioner does so certify, then the 21 commissioner shall, within seven working days of receipt of such diagno- 22 sis, refer the incarcerated individual to the board for consideration 23 for release on medical parole. However, no such referral of an incar- 24 cerated individual to the board of parole shall be made unless the 25 incarcerated individual has been examined by a physician and diagnosed 26 as having a condition, disease or syndrome as previously described here- 27 in at some time subsequent to such incarcerated individual's admission 28 to a facility operated by the department. 29 § 7. Subdivision 4 of section 259-s of the executive law, as amended 30 by chapter 322 of the laws of 2021, is amended to read as follows: 31 4. (a) The board shall, upon receipt of certification from the commis- 32 sioner, independently determine whether the conditions under which the 33 incarcerated individual would be released creates a reasonable probabil- 34 ity that he or she is physically or cognitively incapable of presenting 35 a danger to society. The board shall provide a determination of release 36 within thirty days upon receipt of certification from the commissioner. 37 (b) Medical parole granted pursuant to this section shall be for a 38 period of six months. 39 [~~(b)~~] (c) The board shall require as a condition of release on medical 40 parole that the releasee agree to remain under the care of a physician 41 while on medical parole and in a hospital established pursuant to arti- 42 cle twenty-eight of the public health law, a hospice established pursu- 43 ant to article forty of the public health law or any other placement, 44 including a residence with family or others, that can provide appropri- 45 ate medical care as specified in the medical discharge plan required by 46 subdivision two of this section. The medical discharge plan shall state 47 that the availability of the placement has been confirmed, and by whom. 48 Notwithstanding any other provision of law, when an incarcerated indi- 49 vidual who qualifies for release under this section is cognitively inca- 50 pable of signing the requisite documentation to effectuate the medical 51 discharge plan and, after a diligent search no person has been identi- 52 fied who could otherwise be appointed as the incarcerated individual's 53 guardian by a court of competent jurisdiction, then, solely for the 54 purpose of implementing the medical discharge plan, the facility health 55 services director at the facility where the incarcerated individual is 56 currently incarcerated shall be lawfully empowered to act as the incar-

A. 7190 6 1 cerated individual's guardian for the purpose of effectuating the 2 medical discharge. 3 [~~(c)~~] (d) Where appropriate, the board shall require as a condition of 4 release that medical parolees be supervised on intensive caseloads at 5 reduced supervision ratios. 6 [~~(d)~~] (e) The board shall require as a condition of release on medical 7 parole that the releasee undergo periodic medical examinations and a 8 medical examination at least one month prior to the expiration of the 9 period of medical parole and, for the purposes of making a decision 10 pursuant to paragraph [~~(e)~~] (f) of this subdivision, that the releasee 11 provide the board with a report, prepared by the treating physician, of 12 the results of such examination. Such report shall specifically state 13 whether or not the parolee continues to suffer from a significant and 14 permanent non-terminal and debilitating condition, disease, or syndrome, 15 and to be so debilitated or incapacitated as to be severely restricted 16 in his or her ability to self-ambulate or to perform significant normal 17 activities of daily living. 18 [~~(e)~~] (f) Prior to the expiration of the period of medical parole the 19 board shall review the medical examination report required by paragraph 20 [~~(d)~~] (e) of this subdivision and may again grant medical parole pursu- 21 ant to this section; provided, however, that the provisions of paragraph 22 (c) of subdivision one and subdivision two of this section shall not 23 apply. 24 [~~(f)~~] (g) If the updated medical report presented to the board states 25 that a parolee released pursuant to this section is no longer so debili- 26 tated or incapacitated as to create a reasonable probability that he or 27 she is physically or cognitively incapable of presenting [~~any~~] a danger 28 to society or if the releasee fails to submit the updated medical report 29 then the board may not make a new grant of medical parole pursuant to 30 paragraph [~~(e)~~] (f) of this subdivision. Where the board has not granted 31 medical parole pursuant to [~~such~~] paragraph [~~(e)~~] (f) of this subdivi- 32 sion the board shall promptly conduct through one of its members, or 33 cause to be conducted by a hearing officer designated by the board, a 34 hearing to determine whether the releasee is suffering from a signif- 35 icant and permanent non-terminal and incapacitating condition, disease 36 or syndrome and is so debilitated or incapacitated as to create a 37 reasonable probability that he or she is physically or cognitively inca- 38 pable of presenting [~~any danger to society and does not present~~] a 39 danger to society. If the board makes such a determination then it may 40 make a new grant of medical parole pursuant to the standards of para- 41 graph (b) of subdivision one of this section. At the hearing, the 42 releasee shall have the right to representation by counsel, including 43 the right, if the releasee is financially unable to retain counsel, to 44 have the appropriate court assign counsel in accordance with the county 45 or city plan for representation placed in operation pursuant to article 46 eighteen-B of the county law. 47 [~~(g)~~] (h) The hearing and determination provided for by paragraph 48 [~~(f)~~] (g) of this subdivision shall be concluded within the six month 49 period of medical parole. If the board does not renew the grant of 50 medical parole, it shall order that the releasee be returned immediately 51 to the custody of the department of correctional services. 52 [~~(h)~~] (i) In addition to the procedures set forth in paragraph [~~(f)~~] 53 (g) of this subdivision, medical parole may be revoked at any time upon 54 any of the grounds specified in paragraph (a) of subdivision three of 55 section two hundred fifty-nine-i of this article, and in accordance with

A. 7190 7 1 the procedures specified in subdivision three of section two hundred 2 fifty-nine-i of this article. 3 [~~(i)~~] (j) A releasee who is on medical parole and who becomes eligible 4 for parole pursuant to the provisions of subdivision two of section two 5 hundred fifty-nine-i of this article shall be eligible for parole 6 consideration pursuant to such subdivision. 7 § 8. This act shall take effect immediately; provided, however, that 8 the amendments to paragraph (a) of subdivision 1 of section 259-r of the 9 executive law made by section one of this act shall be subject to the 10 expiration and reversion of such paragraph pursuant to subdivision d of 11 section 74 of chapter 3 of the laws of 1995, as amended, when upon such 12 date the provisions of section two of this act shall take effect.

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