2006 New York Code - Release On Medical Parole.

 
    * § 259-r. Release  on  medical parole. 1. ** (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, 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 incapable of presenting  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.
    ** NB Effective until September 1, 2009
    ** (a) The board shall have the power to release on medical parole any
  inmate  serving  an indeterminate 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 incapable of presenting  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.
    ** NB Effective September 1, 2009
    (b)  Such  release  shall  be  granted  only after the board considers
  whether, in  light  of  the  inmate's  medical  condition,  there  is  a
  reasonable  probability  that  the  inmate,  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. Such release may be granted at any time during the
  term of an inmate'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 inmate  that  the  inmate  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  inmate.  Release  on  medical parole shall not be granted until the
  expiration of the comment period provided for in this paragraph.
    2.  (a)  The   commissioner   of   correctional   services,   on   the
  commissioner's  own  initiative  or at the request of an inmate, 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. 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 correctional 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 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.
    (b) The commissioner, or the commissioner's designee, shall review the
  diagnosis  and  may  certify  that  the  inmate  is  suffering from such
  terminal condition, disease or  syndrome  and  that  the  inmate  is  so
  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
  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 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
  commissioner  shall  provide  an  appropriate  medical  discharge   plan
  established  by  the  department of correctional services. The board may
  reject all or part of the discharge plan submitted by the department  of
  correctional  services, and may postpone its decision pending submission
  of a new discharge plan, or may deny release based on inadequacy of  the
  discharge plan. The department of correctional services and the division
  of parole 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.
    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.
    (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.
    (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 and to care for him or herself.
    (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  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 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 four 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 inmate from  reapplying  for
  medical parole or otherwise affect an inmate'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 of correctional services and the chairman of the
  board of parole 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 inmates
  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 the custody of  the  department
  of correctional services and the reasons for return.
    * NB Expires September 1, 2007