2010 New York Code
EXC - Executive
Article 12-B - (259 - 259-S) STATE DIVISION OF PAROLE
259-R - Release on medical parole for terminally ill inmates.

§ 259-r.  Release  on  medical  parole  for terminally ill inmates. 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  or  cognitively  incapable  of  presenting  any
  danger  to society, provided, however, that no inmate 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 inmate 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 state department of
  correctional  services  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.
    * NB Effective until September 1, 2011
    * (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  or  cognitively  incapable  of  presenting  any
  danger  to society, provided, however, that no inmate 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 inmate 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 state department of
  correctional  services  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.
    * NB Effective September 1, 2011

(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. Except as set  forth  in  paragraph  (a)  of  this
  subdivision,  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,  or  an
  inmate'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 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 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 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  inmate  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  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  or  cognitively 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 seven working days  of  receipt  of  such
  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  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 jointly
  established by the department of correctional services and the  division
  of  parole.  The department of correctional services and the division of
  parole are authorized to  request  assistance  from  the  department  of
  health and from the county in which the inmate 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 of correctional services, the
  division of parole 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  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 inmate 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
  inmate'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 inmate is currently
  incarcerated shall be lawfully empowered to act as the inmate'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  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  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  terminal  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 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.