NY Corr L § 137 (2021)
2021 New York Laws COR - Correction Article 6 - Management of Correctional Facilities 137 - Program of Treatment, Control, Discipline at Correctional Facilities.

§  137.  Program  of  treatment,  control,  discipline at correctional facilities.  1.   The   commissioner   shall   establish   program   and classification  procedures  designed to assure the complete study of the background and condition of each incarcerated individual in the care  or custody  of  the  department  and  the  assignment  of such incarcerated individual to a program that is most likely to be  useful  in  assisting him or her to refrain from future violations of the law. Such procedures shall  be  incorporated into the rules and regulations of the department and shall require among other things:  consideration  of  the  physical, mental   and   emotional   condition  of  the  incarcerated  individual; consideration of his or her educational and vocational needs; enrollment of  each  incarcerated  individual  in  assigned  programs  as  soon  as practicable;  consideration  of  the  danger  he  or she presents to the community  or  to  other  incarcerated  individuals;  the  recording  of continuous  case histories including notations as to apparent success or failure of treatment employed; and periodic review of case histories and treatment methods used.   2. The commissioner shall provide for such measures as he or  she  may deem  necessary  or  appropriate for the safety, security and control of correctional facilities and the maintenance of order therein.   3. Each incarcerated individual shall be entitled to  clothing  suited to  the  season  and  weather conditions and to a sufficient quantity of wholesome and nutritious food. To the extent practicable,  the  clothing and  bedding  of  incarcerated  individuals  shall  be  manufactured and laundered in institutions in the department.   4. Whenever there shall be a sufficient number of cells or rooms in  a correctional  facility,  each  incarcerated  individual  shall  be given sleeping accommodations in a separate cell or room,  provided,  however, that  nothing  herein  contained  shall  be construed so as to limit the right of the department to utilize dormitory-type  accommodations  where necessary or where appropriate to a program of treatment.   5. No incarcerated individual in the care or custody of the department shall  be  subjected  to  degrading  treatment,  and no officer or other employee of the department shall inflict any  blows  whatever  upon  any incarcerated individual, unless in self defense, or to suppress a revolt or   insurrection.   When  any  incarcerated  individual,  or  group  of incarcerated individuals, shall offer violence to any person, or  do  or attempt to do any injury to property, or attempt to escape, or resist or disobey  any  lawful direction, the officers and employees shall use all suitable means to defend  themselves,  to  maintain  order,  to  enforce observation of discipline, to secure the persons of the offenders and to prevent any such attempt or escape.   6.  Except  as provided in paragraphs (d) and (e) of this subdivision, the superintendent of a correctional facility may keep any  incarcerated individual  confined  in  a  cell or room, apart from the accommodations provided for incarcerated individuals who are participating in  programs of  the facility, for such period as may be necessary for maintenance of order or discipline, but in any such case the following conditions shall be observed:   * (a) The incarcerated individual shall be supplied with a  sufficient quantity  of wholesome and nutritious food, provided, however, that such food need  not  be  the  same  as  the  food  supplied  to  incarcerated individuals who are participating in programs of the facility;   * NB Effective until March 31, 2022   * (a)  The incarcerated individual shall be supplied with a sufficient quantity of wholesome and nutritious food;   * NB Effective March 31, 2022  (b) Adequate sanitary and other conditions required for the health  of the incarcerated individual shall be maintained;  (c)  Where  such  confinement is for a period in excess of twenty-four hours, the superintendent shall arrange for the facility health services director, or a registered nurse or physician's associate approved by the facility health services director to visit such incarcerated  individual at  the  expiration  of  twenty-four  hours  and  at least once in every twenty-four  hour  period  thereafter,  during  the   period   of   such confinement,  to  examine  into  the state of health of the incarcerated individual, and the superintendent shall give full consideration to  any recommendation that may be made by the facility health services director for  measures with respect to dietary needs or conditions of confinement of such incarcerated individual required to maintain the health of  such incarcerated individual; and   * (d)  (i)  Except  as set forth in clause (E) of subparagraph (ii) of this paragraph, the  department,  in  consultation  with  mental  health clinicians, shall divert or remove incarcerated individuals with serious mental  illness,  as  defined in paragraph (e) of this subdivision, from segregated confinement, where such confinement could potentially be  for a  period  in  excess  of  thirty  days,  to a residential mental health treatment unit. Nothing in this paragraph shall be deemed to prevent the disciplinary process from proceeding in accordance with department rules and regulations for disciplinary hearings.  (ii) (A) Upon placement of an incarcerated individual into  segregated confinement  at  a level one or level two facility, a suicide prevention screening instrument shall be administered by staff from the  department or the office of mental health who has been trained for that purpose. If such  a screening instrument reveals that the incarcerated individual is at risk of suicide, a mental health clinician  shall  be  consulted  and appropriate  safety precautions shall be taken. Additionally, within one business day of the placement of such an  incarcerated  individual  into segregated  confinement  at  a  level  one  or  level  two facility, the incarcerated individual shall be assessed by a mental health clinician.  (B) Upon placement  of  an  incarcerated  individual  into  segregated confinement  at  a  level  three  or  level  four  facility,  a  suicide prevention screening instrument shall be administered by staff from  the department  or the office of mental health who has been trained for that purpose. If such a screening instrument reveals  that  the  incarcerated individual  is  at  risk  of suicide, a mental health clinician shall be consulted  and  appropriate  safety  precautions  shall  be  taken.  All incarcerated  individuals  placed  in  segregated confinement at a level three or level four facility  shall  be  assessed  by  a  mental  health clinician,  within  fourteen  days  of  such  placement  into segregated confinement.  (C) At the initial assessment, if the mental  health  clinician  finds that an incarcerated individual suffers from a serious mental illness, a recommendation  shall  be  made  whether  exceptional  circumstances, as described in clause (E) of this subparagraph, exist. In a facility  with a  joint case management committee, such recommendation shall be made by such committee. In a facility without a joint case management committee, the recommendation shall be made jointly by a  committee  consisting  of the  facility's  highest  ranking  mental  health  clinician, the deputy superintendent for security, and the deputy superintendent  for  program services,  or  their  equivalents.  Any  such  recommendation  shall  be reviewed  by  the   joint   central   office   review   committee.   The administrative  process  described  in  this  clause  shall be completed within fourteen days of the initial assessment, and  if  the  result  of such  process is that the incarcerated individual should be removed from  segregated confinement, such removal shall occur as soon as practicable, but in no event more than seventy-two hours from the completion  of  the administrative process.  (D) If an incarcerated individual with a serious mental illness is not diverted  or removed to a residential mental health treatment unit, such incarcerated individual shall be reassessed by a mental health clinician within fourteen days of the initial assessment and at least  once  every fourteen  days  thereafter.  After  each  such  additional assessment, a recommendation as to whether  such  incarcerated  individual  should  be removed from segregated confinement shall be made and reviewed according to the process set forth in clause (C) of this subparagraph.  (E)   A   recommendation   or   determination  whether  to  remove  an incarcerated individual from  segregated  confinement  shall  take  into account  the  assessing  mental  health  clinicians'  opinions as to the incarcerated individual's mental  condition  and  treatment  needs,  and shall also take into account any safety and security concerns that would be  posed  by  the incarcerated individual's removal, even if additional restrictions were placed on  the  incarcerated  individual's  access  to treatment,  property,  services  or  privileges  in a residential mental health treatment unit. A recommendation or  determination  shall  direct the incarcerated individual's removal from segregated confinement except in  the following exceptional circumstances: (1) when the reviewer finds that removal would  pose  a  substantial  risk  to  the  safety  of  the incarcerated individual or other persons, or a substantial threat to the security of the facility, even if additional restrictions were placed on the incarcerated individual's access to treatment, property, services or privileges  in  a  residential mental health treatment unit; or (2) when the assessing mental health clinician determines that such placement  is in  the  incarcerated  individual's  best  interests based on his or her mental condition and that removing such  incarcerated  individual  to  a residential  mental health treatment unit would be detrimental to his or her mental condition. Any determination not to  remove  an  incarcerated individual with serious mental illness from segregated confinement shall be documented in writing and include the reasons for the determination.  (iii) Incarcerated individuals with serious mental illness who are not diverted  or  removed  from  segregated  confinement  shall be offered a heightened level of care, involving a minimum of  two  hours  each  day, five  days a week, of out-of-cell therapeutic treatment and programming. This heightened level of care shall not be offered only in the following circumstances:  (A) The heightened level of care shall not apply when an  incarcerated individual  with  serious  mental  illness  does  not, in the reasonable judgment of a mental health clinician, require the heightened  level  of care. Such determination shall be documented with a written statement of the basis of such determination and shall be reviewed by the Central New York Psychiatric Center clinical director or his or her designee. Such a determination  is subject to change should the incarcerated individual's clinical  status  change.  Such  determination  shall  be  reviewed  and documented  by  a  mental  health  clinician  every  thirty days, and in consultation with the  Central  New  York  Psychiatric  Center  clinical director or his or her designee not less than every ninety days.  (B)  The  heightened  level  of  care  shall  not apply in exceptional circumstances when providing such care would create an unacceptable risk to the safety and security of incarcerated individuals  or  staff.  Such determination  shall  be  documented by security personnel together with the basis of such determination and shall be reviewed  by  the  facility superintendent, in consultation with a mental health clinician, not less than every seven days for as long as the incarcerated individual remains  in  segregated  confinement.  The facility shall attempt to resolve such exceptional circumstances so that the heightened level of  care  may  be provided. If such exceptional circumstances remain unresolved for thirty days,  the  matter  shall be referred to the joint central office review committee for review.  (iv) Incarcerated individuals with serious mental illness who are  not diverted or removed from segregated confinement shall not be placed on a restricted  diet, unless there has been a written determination that the restricted diet is necessary for reasons of safety and  security.  If  a restricted diet is imposed, it shall be limited to seven days, except in the  exceptional circumstances where the joint case management committee determines that limiting the restricted diet to seven days would pose an unacceptable risk to the safety and security of incarcerated individuals or staff. In such  case,  the  need  for  a  restricted  diet  shall  be reassessed by the joint case management committee every seven days.  (v)  All incarcerated individuals in segregated confinement in a level one or level two facility who are not assessed  with  a  serious  mental illness  at  the  initial  assessment  shall  be  offered  at  least one interview with a mental health clinician within fourteen days  of  their initial  mental  health  assessment,  and additional interviews at least every thirty days thereafter, unless the mental health clinician at  the most recent interview recommends an earlier interview or assessment. All incarcerated  individuals  in segregated confinement in a level three or level four facility who are not assessed with a serious  mental  illness at the initial assessment shall be offered at least one interview with a mental  health  clinician  within  thirty  days  of their initial mental health assessment, and additional interviews at least every ninety  days thereafter,  unless  the  mental  health  clinician  at  the most recent interview recommends an earlier interview or assessment.   * NB Effective until March 31, 2022   * (d) (i) Except as set forth in clause (E) of  subparagraph  (ii)  of this  paragraph,  the  department,  in  consultation  with mental health clinicians, shall divert or remove incarcerated individuals with serious mental illness, as defined in paragraph (e) of  this  subdivision,  from segregated  confinement  or  confinement in a residential rehabilitation unit, where such confinement could potentially be for a period in excess of thirty days, to a residential mental health treatment  unit.  Nothing in  this  paragraph  shall be deemed to prevent the disciplinary process from proceeding in accordance with department rules and regulations  for disciplinary hearings.  (ii)  (A) Upon placement of an incarcerated individual into segregated confinement or a residential rehabilitation unit at a level one or level two  facility,  a  suicide  prevention  screening  instrument  shall  be administered by staff from the department or the office of mental health who  has  been  trained for that purpose. If such a screening instrument reveals that the incarcerated individual is at risk of suicide, a mental health clinician shall be consulted and appropriate  safety  precautions shall  be  taken. Additionally, within one business day of the placement of such an incarcerated individual  into  segregated  confinement  at  a level  one  or  level two facility or a residential rehabilitation unit, the incarcerated  individual  shall  be  assessed  by  a  mental  health clinician.  (B)  Upon  placement  of  an  incarcerated  individual into segregated confinement or a residential rehabilitation unit at  a  level  three  or level  four facility, a suicide prevention screening instrument shall be administered by staff from the department or the office of mental health who has been trained for that purpose. If such  a  screening  instrument reveals that the incarcerated individual is at risk of suicide, a mental  health  clinician  shall be consulted and appropriate safety precautions shall be  taken.  All  incarcerated  individuals  placed  in  segregated confinement  or  a  residential  rehabilitation unit at a level three or level  four  facility  shall  be  assessed by a mental health clinician, within seven days of such placement into segregated confinement.  (C) At the initial assessment, if the mental  health  clinician  finds that  an  incarcerated individual suffers from a serious mental illness, that person shall be diverted or removed from segregated confinement  or a  residential  rehabilitation  unit  and a recommendation shall be made whether exceptional circumstances, as described in clause  (E)  of  this subparagraph,  exist.  In  a  facility  with  a  joint  case  management committee, such recommendation shall be made by  such  committee.  In  a facility  without  a joint case management committee, the recommendation shall be made jointly  by  a  committee  consisting  of  the  facility's highest  ranking  mental health clinician, the deputy superintendent for security, and the deputy superintendent for program services,  or  their equivalents.  Any  such  recommendation  shall  be reviewed by the joint central office review committee. The administrative process described in this clause  shall  be  completed  within  seven  days  of  the  initial assessment,  and  if the result of such process is that the incarcerated individual  should  be  removed  from  segregated   confinement   or   a residential  rehabilitation  unit,  such  removal shall occur as soon as practicable, but in no  event  more  than  seventy-two  hours  from  the completion  of  the administrative process. Pursuant to paragraph (h) of this subdivision, nothing in this section shall permit the placement  of an  incarcerated  person  with  serious  mental  illness into segregated confinement at any time, even for the purposes of assessment.  (D) If an incarcerated individual with a serious mental illness is not diverted or removed to a residential mental health treatment unit,  such incarcerated   individual   shall   be   diverted   to   a   residential rehabilitation unit and reassessed by a mental health  clinician  within fourteen days of the initial assessment and at least once every fourteen days thereafter. After each such additional assessment, a recommendation as  to  whether  such  incarcerated  individual should be removed from a residential rehabilitation unit shall be made and reviewed according  to the process set forth in clause (C) of this subparagraph.  (E)   A   recommendation   or   determination  whether  to  remove  an incarcerated individual from segregated  confinement  or  a  residential rehabilitation  unit shall take into account the assessing mental health clinicians'  opinions  as  to  the  incarcerated   individual's   mental condition  and  treatment  needs,  and  shall also take into account any safety and security concerns that would be  posed  by  the  incarcerated individual's removal, even if additional restrictions were placed on the incarcerated  individual's  access  to  treatment, property, services or privileges  in  a  residential   mental   health   treatment   unit.   A recommendation   or   determination   shall   direct   the  incarcerated individual's  removal  from  segregated  confinement  or  a  residential rehabilitation  unit  except in the following exceptional circumstances: (1) when the reviewer finds that removal would pose a  substantial  risk to  the  safety  of  the  incarcerated individual or other persons, or a substantial threat to the security of the facility, even  if  additional restrictions  were  placed  on  the  incarcerated individual's access to treatment, property, services or  privileges  in  a  residential  mental health treatment unit; or (2) when the assessing mental health clinician determines  that such placement is in the incarcerated individual's best interests based on his or her mental condition and  that  removing  such incarcerated  individual  to  a residential mental health treatment unit would be detrimental to his or her mental condition.  Any  determination  not  to  remove  an  incarcerated individual with serious mental illness from a residential rehabilitation unit shall be  documented  in  writing and include the reasons for the determination.  (iii) Incarcerated individuals with serious mental illness who are not diverted  or  removed  from  a  residential rehabilitation unit shall be offered a heightened level of mental health care, involving a minimum of three hours daily of out-of-cell therapeutic treatment and  programming. This heightened level of care shall not be offered only in the following circumstances:  (A)  The heightened level of care shall not apply when an incarcerated individual with serious mental  illness  does  not,  in  the  reasonable judgment  of  a mental health clinician, require the heightened level of care. Such determination shall be documented with a written statement of the basis of such determination and shall be reviewed by the Central New York Psychiatric Center clinical director or his or her designee. Such a determination is subject to change should the incarcerated  individual's clinical  status  change.  Such  determination  shall  be  reviewed  and documented by a mental  health  clinician  every  thirty  days,  and  in consultation  with  the  Central  New  York  Psychiatric Center clinical director or his or her designee not less than every ninety days.  (B) The heightened level  of  care  shall  not  apply  in  exceptional circumstances when providing such care would create an unacceptable risk to  the  safety  and security of incarcerated individuals or staff. Such determination shall be documented by security  personnel  together  with the  basis  of  such determination and shall be reviewed by the facility superintendent, in consultation with a mental health clinician, not less than every seven days for as long as the incarcerated individual remains in a residential rehabilitation unit.  The  facility  shall  attempt  to resolve  such  exceptional circumstances so that the heightened level of care  may  be  provided.  If  such  exceptional   circumstances   remain unresolved  for  thirty  days, the matter shall be referred to the joint central office review committee for review.  (iv) All incarcerated individuals in segregated confinement in a level one or level two facility or a residential rehabilitation unit  who  are not  assessed  with  a  serious mental illness at the initial assessment shall be offered at least one interview with a mental  health  clinician within  seven days of their initial mental health assessment, unless the mental health clinician at  the  most  recent  interview  recommends  an earlier  interview  or  assessment.  All  incarcerated  individuals in a residential rehabilitation unit in a level three or level four  facility who  are  not  assessed  with  a  serious  mental illness at the initial assessment shall be offered at least one interview with a mental  health clinician  within thirty days of their initial mental health assessment, and additional interviews at least every ninety days thereafter,  unless the  mental  health clinician at the most recent interview recommends an earlier interview or assessment.   * NB Effective March 31, 2022  (e) An incarcerated individual has a serious mental illness when he or she has been determined by a mental health clinician to  meet  at  least one of the following criteria:  (i)  he  or  she  has  a  current diagnosis of, or is diagnosed at the initial or any subsequent assessment conducted during  the  incarcerated individual's  segregated  confinement with, one or more of the following types of Axis I diagnoses, as described in the most  recent  edition  of the  Diagnostic  and  Statistical  Manual  of Mental Disorders, and such diagnoses shall be  made  based  upon  all  relevant  clinical  factors, including but not limited to symptoms related to such diagnoses:  (A) schizophrenia (all sub-types),  (B) delusional disorder,  (C) schizophreniform disorder,  (D) schizoaffective disorder,  (E) brief psychotic disorder,  (F)  substance-induced  psychotic disorder (excluding intoxication and withdrawal),  (G) psychotic disorder not otherwise specified,  (H) major depressive disorders, or  (I) bipolar disorder I and II;  (ii) he or she is actively  suicidal  or  has  engaged  in  a  recent, serious suicide attempt;  (iii)  he  or  she  has been diagnosed with a mental condition that is frequently characterized by  breaks  with  reality,  or  perceptions  of reality,  that  lead the individual to experience significant functional impairment involving acts of self-harm or other  behavior  that  have  a seriously adverse effect on life or on mental or physical health;  (iv)  he or she has been diagnosed with an organic brain syndrome that results  in  a  significant  functional  impairment  involving  acts  of self-harm or other behavior that have a seriously adverse effect on life or on mental or physical health;  (v)  he  or  she has been diagnosed with a severe personality disorder that is manifested by frequent episodes of psychosis or depression,  and results  in  a  significant  functional  impairment  involving  acts  of self-harm or other behavior that have a seriously adverse effect on life or on mental or physical health; or  (vi) he or she has been determined by a  mental  health  clinician  to have  otherwise substantially deteriorated mentally or emotionally while confined in  segregated  confinement  and  is  experiencing  significant functional  impairment  indicating a diagnosis of serious mental illness and involving acts of self-harm or other behavior that  have  a  serious adverse effect on life or on mental or physical health.  (f) The superintendent shall make a full report to the commissioner at least  once  a  week  concerning  the  condition  of  such  incarcerated individual  and  shall  forthwith  report  to   the   commissioner   any recommendation  relative  to  health maintenance or health care delivery made by the facility health services  director  and  any  recommendation relative  to  mental  health treatment or confinement of an incarcerated individual with a serious mental  illness  made  by  the  mental  health clinician pursuant to paragraphs (d) and (e) of this subdivision that is not endorsed or carried out, as the case may be, by the superintendent.  (g)  Within  twenty-four  hours  of disciplinary confinement, keeplock pending a disciplinary hearing, placement in  a  segregated  confinement unit  for  administrative purposes, or placement in a residential mental health treatment unit,  and  at  weekly  intervals  thereafter  for  the duration  of  such  confinement,  an  incarcerated  individual  shall be permitted to make at least one personal phone call, except when to do so would create  an  unacceptable  risk  to  the  safety  and  security  of incarcerated individuals or staff.   * (h)  Persons  in  a  special  population  as  defined in subdivision thirty-three of section two of this  chapter  shall  not  be  placed  in segregated  confinement for any length of time, except in keeplock for a period prior to a disciplinary hearing pursuant to paragraph (l) of this subdivision. Individuals in a special population  who  are  in  keeplock prior  to  a  disciplinary  hearing  shall  be  given  seven hours a day out-of-cell time or shall be transferred to a residential rehabilitation unit or residential mental health treatment  unit  as  expeditiously  as possible,  but in no case longer than forty-eight hours from the time an individual is admitted to keeplock.    * NB Effective March 31, 2022   * (i) (i) No person may be placed in segregated confinement for longer than  necessary and no more than fifteen consecutive days. Nor shall any person be placed in segregated confinement for more  than  twenty  total days  within  any  sixty  day  period  except  as  otherwise provided in subparagraph (ii) of this paragraph. At these limits, he or she must  be released   from   segregated  confinement  or  diverted  to  a  separate residential  rehabilitation  unit.  If  placement  of  such  person   in segregated  confinement  would  exceed  the  twenty-day  limit  and  the department establishes that the  person  committed  an  act  defined  in subparagraph  (ii)  of paragraph (k) of this subdivision, the department may place the person in segregated  confinement  until  admission  to  a residential  rehabilitation unit can be effectuated. Such admission to a residential rehabilitation unit shall occur as expeditiously as possible and in no case take longer than forty-eight hours  from  the  time  such person is placed in segregated confinement.  (ii)  For  offenses  determined  pursuant  to  paragraph  (l)  of this subdivision to constitute a violent felony act defined  in  subparagraph (ii)  of  paragraph  (k) of this subdivision, if occurring more than one time  within  any  sixty  day  period,  up  to  an  additional   fifteen consecutive  days  in  segregated  confinement  may  occur for each such additional incident. If  such  subsequent  incident  takes  place  in  a residential rehabilitation unit or general population, the person may be returned  to  segregated confinement for up to fifteen consecutive days. If such subsequent incident takes place in  segregated  confinement  and causes  physical  injury to another person, the person may receive up to an  additional  fifteen  consecutive  days  in  segregated  confinement, provided  however  that the person must spend at least fifteen days in a residential rehabilitation unit in  between  each  placement  of  up  to fifteen  consecutive  days in segregated confinement. Custody under this subparagraph shall otherwise be in accordance with this chapter.   * NB Effective March 31, 2022   * (j) (i) All segregated confinement  and  residential  rehabilitation units  shall  create the least restrictive environment necessary for the safety of incarcerated persons, staff, and the security of the facility.  (ii) Persons in segregated confinement shall  be  offered  out-of-cell programming at least four hours per day, including at least one hour for recreation.  Persons  admitted to residential rehabilitation units shall be  offered  at  least  six  hours  of  daily   out-of-cell   congregate programming,  services,  treatment, recreation, activities and/or meals, with an additional minimum of one hour for recreation. Recreation in all residential rehabilitation  units  shall  take  place  in  a  congregate setting,  unless  exceptional circumstances mean doing so would create a significant and unreasonable risk to the safety and  security  of  other incarcerated  persons,  staff,  or  the  facility. Persons in segregated confinement  and  residential  rehabilitation  units  shall  be  offered programming  led  by  program  or  therapeutic staff five days per week, except on recognized state legal holidays. All  other  out-of-cell  time may  include  peer-led  programs,  time  in  a  day  room or out-of-cell recreation area with other people, congregate meals, volunteer programs, or other congregate activities.  (iii) No limitation on services, treatment, or  basic  needs  such  as clothing,  food and bedding shall be imposed as a form of punishment. If provision  of  any  such  services,  treatment  or  basic  needs  to  an individual  would  create  a  significant  and  unreasonable risk to the safety and security of incarcerated persons,  staff,  or  the  facility, such  services,  treatment  or  basic  needs  may  be  withheld until it reasonably appears that the risk has ended.  The  department  shall  not  impose  restricted  diets  or  any  other  change  in  diet as a form of punishment. Persons in a  residential  rehabilitation  unit  shall  have access   to   all  of  their  personal  property  unless  an  individual determination  is  made  that  having  a  specific  item  would  pose  a significant and unreasonable risk to the safety of incarcerated  persons or staff or the security of the unit.  (iv)  Upon admission to a residential rehabilitation unit, program and mental  health  staff  shall  administer  assessments  and  develop   an individual  rehabilitation plan in consultation with the resident, based upon his or her medical, mental health, and programming needs. Such plan shall identify specific goals and programs, treatment, and  services  to be offered, with projected time frames for completion and discharge from the residential rehabilitation unit.  (v)  An incarcerated person in a residential rehabilitation unit shall have access to programs and work assignments comparable to core programs and types of work assignments in general population.  Such  incarcerated persons    shall   also   have   access   to   additional   out-of-cell, trauma-informed therapeutic  programming  aimed  at  promoting  personal development,   addressing  underlying  causes  of  problematic  behavior resulting in placement in a residential rehabilitation unit, and helping prepare for discharge from the unit and to the community.  (vi) If the department establishes that  a  person  committed  an  act defined  in subparagraph (ii) of paragraph (k) of this subdivision while in segregated confinement or a residential rehabilitation unit and poses a significant and unreasonable risk to the safety and security of  other incarcerated persons or staff, the department may restrict such person's participation in programming and out-of-cell activities as necessary for the safety of other incarcerated persons and staff. If such restrictions are imposed, the department must provide at least four hours out-of-cell time  daily, including at least two hours of therapeutic programming and two hours of recreation, and must make reasonable efforts  to  reinstate access  to  programming  as  soon  as  possible.  In  no  case  may such restrictions extend beyond fifteen days unless the person commits a  new act  defined herein justifying restrictions on program access, or if the commissioner and, when appropriate, the commissioner  of  mental  health personally  reasonably  determine that the person poses an extraordinary and unacceptable risk of imminent harm to  the  safety  or  security  of incarcerated  persons  or  staff.  Any extension of program restrictions beyond fifteen days must be meaningfully reviewed and approved at  least every  fifteen  days  by  the commissioner and, when appropriate, by the commissioner of mental health. Each review must consider the  impact  of therapeutic  programming  provided  during the fifteen-day period on the person's risk of imminent harm and the commissioner must  articulate  in writing,  with  a copy provided to the incarcerated person, the specific reason why the person currently poses an extraordinary and  unacceptable risk  of imminent harm to the safety or security of incarcerated persons or staff. In no case may restrictions imposed by the commissioner extend beyond ninety days unless the person commits a new  act  defined  herein justifying restrictions on program access.  (vii)  Restraints  shall  not  be  used  when incarcerated persons are participating   in   out-of-cell   activities   within   a   residential rehabilitation  unit  unless  an  individual  assessment  is  made  that restraints are required because of a significant and  unreasonable  risk to the safety and security of other incarcerated persons or staff.   * NB Effective March 31, 2022   * (k)  (i) The department may place a person in segregated confinement for up to three consecutive days and no longer  than  six  days  in  any thirty  day period if, pursuant to an evidentiary hearing, it determines  that the person violated department rules  which  permit  a  penalty  of segregated  confinement.  The  department  may  not  place  a  person in segregated confinement for longer than three  consecutive  days  or  six days  total in a thirty day period unless the provisions of subparagraph (ii) of this paragraph are met.  (ii) The department may  place  a  person  in  segregated  confinement beyond  the  limits  of  subparagraph  (i)  of  this  paragraph  or in a residential rehabilitation unit only  if,  pursuant  to  an  evidentiary hearing, it determines by written decision that the person committed one of  the  following  acts  and if the commissioner or his or her designee determines in writing based on specific objective criteria the acts were so heinous or destructive that placement of the  individual  in  general population  housing  creates  a  significant  risk  of  imminent serious physical injury to staff or other incarcerated persons, and  creates  an unreasonable risk to the security of the facility:  (A) causing or attempting to cause serious physical injury or death to another  person  or  making  an imminent threat of such serious physical injury or death if the person has a history  of  causing  such  physical injury  or  death  and  the  commissioner  and,  when  appropriate,  the commissioner of mental health or their  designees  reasonably  determine that  there  is  a strong likelihood that the person will carry out such threat. The commissioner of mental health or his or her  designee  shall be  involved  in  such determination if the person is or has been on the mental health caseload or appears to require psychiatric attention.  The department  and  the  office of mental health shall promulgate rules and regulations pertaining to this clause;  (B) compelling or attempting to compel another  person,  by  force  or threat of force, to engage in a sexual act;  (C)  extorting  another,  by force or threat of force, for property or money;  (D) coercing another, by force or threat  of  force,  to  violate  any rule;  (E)  leading,  organizing,  inciting,  or  attempting to cause a riot, insurrection, or other similarly serious disturbance that results in the taking of a hostage, major property damage, or physical harm to  another person;  (F) procuring a deadly weapon or other dangerous contraband that poses a serious threat to the security of the institution; or  (G)  escaping,  attempting  to escape or facilitating an escape from a facility or escaping or attempting to  escape  while  under  supervision outside such facility.   For   purposes   of  this  section,  attempting  to  cause  a  serious disturbance or to escape shall only be determined to  have  occurred  if there is a clear finding that the incarcerated individual had the intent to cause a serious disturbance or the intent to escape and had completed significant  acts  in the advancement of the attempt to create a serious disturbance or escape. Evidence of withdrawal or abandonment of  a  plan to  cause  a  serious disturbance or to escape shall negate a finding of intent.  (iii)  No  person  may  be  placed  in  segregated  confinement  or  a residential  rehabilitation  unit based on the same act or incident that was previously used as the basis for such placement.  (iv) No person may be held in segregated  confinement  for  protective custody.  Any  unit  used  for  protective  custody  must, at a minimum, conform to requirements governing residential rehabilitation units.   * NB Effective March 31, 2022   * (l) All  hearings  to  determine  if  a  person  may  be  placed  in segregated  confinement  shall  occur  prior  to placement in segregated  confinement unless a security supervisor, with  written  approval  of  a facility superintendent or designee, reasonably believes the person fits the  specified  criteria for segregated confinement in subparagraph (ii) of  paragraph  (k) of this subdivision. If a hearing does not take place prior to placement, it shall occur as soon as reasonably practicable and at most within five days of such placement  unless  the  charged  person seeks  a  postponement of the hearing. Persons at such hearings shall be permitted to be represented by any attorney or law student,  or  by  any paralegal  or  incarcerated  person  unless  the  department  reasonably disapproves  of  such  paralegal  or  incarcerated  person  based   upon objective written criteria developed by the department.   * NB Effective March 31, 2022   * (m)  (i)  Any  sanction  imposed on an incarcerated person requiring segregated confinement shall run while the person is  in  a  residential rehabilitation  unit  and  the  person shall be discharged from the unit before or at the time such sanction expires. If  a  person  successfully completes  his  or  her rehabilitation plan before the sanction expires, the person shall have a right to be discharged from the unit  upon  such completion.  (ii)  If  an  incarcerated  person  has  not  been  discharged  from a residential rehabilitation unit within one year of initial admission  to such  a  unit or is within sixty days of a fixed or tentatively approved date for release from a correctional facility, he or she  shall  have  a right  to  be discharged from the unit unless he or she committed an act listed in subparagraph (ii) of paragraph (k) of this subdivision  within the  prior one hundred eighty days and he or she poses a significant and unreasonable risk to the safety or security of incarcerated  persons  or staff.  In any such case the decision not to discharge such person shall be immediately and automatically subjected to an independent  review  by the  commissioner  and  the  commissioner  of  mental  health  or  their designees. A person may remain  in  a  residential  rehabilitation  unit beyond the time limits provided in this section if both commissioners or both   of  their  designees  approve  this  decision.  In  extraordinary circumstances,  a  person  who  has  not  committed  an  act  listed  in subparagraph  (ii) of paragraph (k) of this subdivision within the prior one hundred eighty days, may remain in a residential rehabilitation unit beyond the time limits provided in this section if both the commissioner and the commissioner of mental health  personally  determine  that  such individual poses an extraordinary and unacceptable risk of imminent harm to the safety or security of incarcerated persons or staff.  (iii)  There  shall  be  a meaningful periodic review of the status of each incarcerated person in a residential rehabilitation unit  at  least every  sixty  days  to assess the person's progress and determine if the person should be discharged  from  the  unit.  Following  such  periodic review,  if  the  person  is  not  discharged from the unit, program and mental health staff  shall  specify  in  writing  the  reasons  for  the determination  and  the  program,  treatment, service, and/or corrective action required before discharge. The incarcerated person shall be given access to the programs, treatment and services specified, and shall have a right to be discharged from the residential rehabilitation  unit  upon the successful fulfillment of such requirements.  (iv)  When  an  incarcerated  person  is discharged from a residential rehabilitation unit, any remaining  time  to  serve  on  any  underlying disciplinary  sanction  shall  be  dismissed.  If an incarcerated person substantially completes his or her rehabilitation plan, he or she  shall have  any  associated loss of good time restored upon discharge from the unit.   * NB Effective March 31, 2022    * (n)  All  special  housing  unit,  keeplock  unit  and   residential rehabilitation   unit   staff   and   their  supervisors  shall  undergo specialized training prior to  assignment  to  such  unit,  and  regular specialized  training  thereafter,  on  substantive content developed in consultation with relevant experts, on topics including, but not limited to,  the  purpose and goals of the non-punitive therapeutic environment, trauma-informed  care,  restorative  justice,  and  dispute   resolution methods.  Prior  to  presiding  over  any hearings, all hearing officers shall undergo a minimum of thirty-seven  hours  of  training,  with  one additional  day  of  training  annually  thereafter, on relevant topics, including but not limited to, the physical and psychological effects  of segregated  confinement,  procedural  and  due  process  rights  of  the accused, and restorative justice remedies.   * NB Effective March 31, 2022   * (o) The department shall publish monthly  reports  on  its  website, with  semi-annual  and annual cumulative reports, of the total number of people who are in segregated confinement and the total number of  people who  are  in  residential  rehabilitation units on the first day of each month. The reports shall provide a breakdown of the number of people  in segregated  confinement  and in residential rehabilitation units by: (i) age; (ii) race; (iii) gender; (iv) mental health  treatment  level;  (v) special  health accommodations or needs; (vi) need for and participation in substance use  disorder  programs;  (vii)  pregnancy  status;  (viii) continuous  length  of  stay  in  residential treatment units as well as length of stay in the past sixty days; (ix) number of days in segregated confinement; (x) a list of  all  incidents  resulting  in  sanctions  of segregated  confinement  by  facility  and  date of occurrence; (xi) the number of incarcerated persons in segregated  confinement  by  facility; and   (xii)   the   number   of   incarcerated  persons  in  residential rehabilitation units by facility.   * NB Effective March 31, 2022