NY Corr L § 401 (2021)
2021 New York Laws COR - Correction Article 16 - Provisions Relating to Mentally Ill Incarcerated Individuals 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 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.   * NB Effective until March 31, 2022   * 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.   * NB Effective March 31, 2022   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 alternative mental  health  treatment and/or  other  therapeutic programming, as determined by a mental health clinician, shall be provided.   * NB Effective until March 31, 2022    * (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 inmate 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.   * NB Effective March 31, 2022  (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, 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. 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  segregated confinement. The determination that an immediate transfer to  segregated  confinement  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 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 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 segregated confinement should be removed from  segregated confinement,  such removal shall occur as soon as practicable, and in no event  longer  than  seventy-two  hours  from  the  completion  of   the administrative process.   * NB Effective until March 31, 2022   * 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.   * NB Effective March 31, 2022   * 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.   * NB Effective until March 31, 2022   * 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.   * NB Effective March 31, 2022