N.Y. Correction Law § 401: Establishment of programs inside correctional facilities

§ 401. Establishment of programs inside correctional facilities. 1.

The commissioner, in cooperation with the commissioner of mental health,

shall establish programs, including but not limited to residential

mental health treatment units, in such correctional facilities as he or

she may deem appropriate for the treatment of mentally ill incarcerated

individuals confined in state correctional facilities who are in need of

psychiatric services but who do not require hospitalization for the

treatment of mental illness. Incarcerated individuals with serious

mental illness shall receive therapy and programming in settings that

are appropriate to their clinical needs while maintaining the safety and

security of the facility.

The conditions and services provided in the residential mental health

treatment units shall be at least comparable to those in all residential

rehabilitation units, and all residential mental health treatment units

shall be in compliance with all provisions of paragraphs (i), (j), (k),

and (l) of subdivision six of section one hundred thirty-seven of this

chapter. Residential mental health treatment units that are either

residential mental health unit models or behavioral health unit models

shall also be in compliance with all provisions of paragraph (m) of

subdivision six of section one hundred thirty-seven of this chapter.

The residential mental health treatment units shall also provide the

additional mental health treatment, services, and programming delineated

in this section. The administration and operation of programs

established pursuant to this section shall be the joint responsibility

of the commissioner of mental health and the commissioner. The

professional mental health care personnel, and their administrative and

support staff, for such programs shall be employees of the office of

mental health. All other personnel shall be employees of the department.

2. (a) (i) In exceptional circumstances, a mental health clinician, or

the highest ranking facility security supervisor in consultation with a

mental health clinician who has interviewed the incarcerated individual,

may determine that an incarcerated individual's access to out-of-cell

therapeutic programming and/or mental health treatment in a residential

mental health treatment unit presents an unacceptable risk to the safety

of incarcerated individuals or staff. Such determination shall be

documented in writing and such incarcerated individual may be removed to

a residential rehabilitation unit that is not a residential mental

health treatment unit where alternative mental health treatment and/or

other therapeutic programming, as determined by a mental health

clinician, shall be provided.

(ii) Any determination to restrict out-of-cell therapeutic programming

and/or mental health treatment shall be reviewed at least every fourteen

days by the joint case management committee or, if no such committee is

available, by the treatment team assigned to the incarcerated

individual's residential mental health treatment unit.

(iii) The determination whether to restrict out-of-cell therapeutic

programming and/or mental health treatment shall take into account the

incarcerated individual's mental condition and any safety and security

concerns that would be posed by the incarcerated individual's access to

such out-of-cell therapeutic programming. The joint case management

committee or treatment team shall recommend that the incarcerated

individual shall have access to out-of-cell therapeutic programming

and/or mental health treatment unless in exceptional circumstances such

access would pose an unacceptable risk to the safety of the incarcerated

individual or other persons. Such recommendation shall be reviewed by

the facility superintendent, and if the superintendent makes a

determination not to accept such recommendation, the matter shall be

referred to the joint central office review committee for resolution.

Such resolution shall be made no later than twenty-one days after the

imposition of the restriction.

(b) Incarcerated individuals in a residential mental health treatment

unit shall receive property, services and privileges similar to

incarcerated individuals confined in the general prison population,

provided however, the department may impose general limitations on the

quantity and type of property all incarcerated individuals on the unit

are permitted to have in their cells and incarcerated individual access

to programs that are more restrictive than for general population

incarcerated individuals in order to maintain security and order on the

unit. Further, in consultation with a mental health clinician, the

department may make an individual determination to impose restrictions

on property, services or privileges for an incarcerated individual on

the unit for therapeutic and/or security reasons which are not

inconsistent with the incarcerated individual's mental health needs. If

any such restrictions on property, services or privileges are imposed on

a particular incarcerated individual, they shall be documented in

writing and shall be reviewed by the joint case management committee not

less than every thirty days. A disciplinary sanction of restricted diet

shall not be imposed on any incarcerated individual who is housed in a

residential mental health treatment unit.

3. Misbehavior reports will not be issued to incarcerated individuals

with serious mental illness for refusing treatment or medication,

however, an incarcerated individual may be subject to the disciplinary

process for refusing to go to the location where treatment is provided

or medication is dispensed. In addition, there will be a presumption

against imposition and pursuit of disciplinary charges for self-harming

behavior and threats of self-harming behavior, including related charges

for the same behaviors, such as destruction of state property, except in

exceptional circumstances.

4. A disciplinary sanction imposed on an incarcerated individual

requiring confinement to a cell or room shall continue to run while the

incarcerated individual is placed in residential mental health treatment

in a residential mental health unit model or a behavioral health unit

model. Such disciplinary sanction shall be reviewed by the joint case

management committee or, if no such committee is available, by the

treatment team assigned to the incarcerated individual's residential

mental health treatment unit at least once every three months to

determine whether based upon the incarcerated individual's mental health

status and safety and security concerns, the incarcerated individual's

disciplinary sanction should be reduced and/or the incarcerated

individual should be transferred to a less restrictive setting. Nothing

in this subdivision shall be deemed to preclude the department from

granting reductions of disciplinary sanctions to incarcerated

individuals in other residential mental health treatment unit models.

5. (a) An incarcerated individual in a residential mental health

treatment unit shall not be sanctioned with segregated confinement for

misconduct on the unit, or removed from the unit and placed in

segregated confinement or a residential rehabilitation unit, except in

exceptional circumstances where such incarcerated individual's conduct

poses a significant and unreasonable risk to the safety of incarcerated

individuals or staff, or to the security of the facility and he or she

has been found to have committed an act or acts defined in subparagraph

(ii) of paragraph (k) of subdivision six of section one hundred

thirty-seven of this chapter. Further, in the event that such a sanction

is imposed, an incarcerated individual shall not be required to begin

serving such sanction until the reviews required by paragraph (b) of

this subdivision have been completed; provided, however that in

extraordinary circumstances where an incarcerated individual's conduct

poses an immediate unacceptable threat to the safety of incarcerated

individuals or staff, or to the security of the facility an incarcerated

individual may be immediately moved to a residential rehabilitation

unit. The determination that an immediate transfer to a residential

rehabilitation unit is necessary shall be made by the highest ranking

facility security supervisor in consultation with a mental health

clinician.

(b) The joint case management committee shall review any disciplinary

disposition imposing a sanction of segregated confinement at its next

scheduled meeting. Such review shall take into account the incarcerated

individual's mental condition and safety and security concerns. The

joint case management committee may only thereafter recommend the

removal of the incarcerated individual in exceptional circumstances

where the incarcerated individual commits an act or acts defined in

subparagraph (ii) of paragraph (k) of subdivision six of section one

hundred thirty-seven of this chapter and poses a significant and

unreasonable risk to the safety of incarcerated individuals or staff or

to the security of the facility. In the event that the incarcerated

individual was immediately moved to segregated confinement, the joint

case management committee may recommend that the incarcerated individual

continue to serve such sanction only in exceptional circumstances where

the incarcerated individual commits an act or acts defined in

subparagraph (ii) of paragraph (k) of subdivision six of section one

hundred thirty-seven of this chapter and poses a significant and

unreasonable risk to the safety of incarcerated individuals or staff or

to the security of the facility. If a determination is made that the

incarcerated individual shall not be required to serve all or any part

of the segregated confinement sanction, the joint case management

committee may instead recommend that a less restrictive sanction should

be imposed. The recommendations made by the joint case management

committee under this paragraph shall be documented in writing and

referred to the superintendent for review and if the superintendent

disagrees, the matter shall be referred to the joint central office

review committee for a final determination. The administrative process

described in this paragraph shall be completed within fourteen days. If

the result of such process is that an incarcerated individual who was

immediately transferred to a residential rehabilitation unit should be

removed from such unit, such removal shall occur as soon as practicable,

and in no event longer than seventy-two hours from the completion of the

administrative process.

6. The department shall ensure that the curriculum for new correction

officers, and other new department staff who will regularly work in

programs providing mental health treatment for incarcerated individuals,

shall include at least eight hours of training about the types and

symptoms of mental illnesses, the goals of mental health treatment, the

prevention of suicide and training in how to effectively and safely

manage incarcerated individuals with mental illness. Such training may

be provided by the office of mental health or the justice center for the

protection of people with special needs. All department staff who are

transferring into a residential mental health treatment unit shall

receive a minimum of eight additional hours of such training, and eight

hours of annual training as long as they work in such a unit. All

security, program services, mental health and medical staff with direct

incarcerated individual contact shall receive training each year

regarding identification of, and care for, incarcerated individuals with

mental illnesses. The department shall provide additional training on

these topics on an ongoing basis as it deems appropriate. All staff

working in a residential mental health treatment unit shall also receive

the training mandated in paragraph (n) of subdivision six of section one

hundred thirty-seven of this chapter.