2023 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 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.