§ 401 — Establishment of programs inside correctional facilities

New York § 401

• Jurisdiction: New York
• Law COR: Correction
• Art. 16: Provisions Relating to Mentally Ill Incarcerated Individuals

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§ 401. Establishment of programs inside correctional facilities. 1.\nThe commissioner, in cooperation with the commissioner of mental health,\nshall establish programs, including but not limited to residential\nmental health treatment units, in such correctional facilities as he or\nshe may deem appropriate for the treatment of mentally ill incarcerated\nindividuals confined in state correctional facilities who are in need of\npsychiatric services but who do not require hospitalization for the\ntreatment of mental illness. Incarcerated individuals with serious\nmental illness shall receive therapy and programming in settings that\nare appropriate to their clinical needs while maintaining the safety and\nsecurity of the facility.\n The conditions and services provided in the residential mental health\ntreatment units shall be at least comparable to those in all residential\nrehabilitation units, and all residential mental health treatment units\nshall be in compliance with all provisions of paragraphs (i), (j), (k),\nand (l) of subdivision six of section one hundred thirty-seven of this\nchapter. Residential mental health treatment units that are either\nresidential mental health unit models or behavioral health unit models\nshall also be in compliance with all provisions of paragraph (m) of\nsubdivision six of section one hundred thirty-seven of this chapter.\n The residential mental health treatment units shall also provide the\nadditional mental health treatment, services, and programming delineated\nin this section. The administration and operation of programs\nestablished pursuant to this section shall be the joint responsibility\nof the commissioner of mental health and the commissioner. The\nprofessional mental health care personnel, and their administrative and\nsupport staff, for such programs shall be employees of the office of\nmental health. All other personnel shall be employees of the department.\n 2. (a) (i) In exceptional circumstances, a mental health clinician, or\nthe highest ranking facility security supervisor in consultation with a\nmental health clinician who has interviewed the incarcerated individual,\nmay determine that an incarcerated individual's access to out-of-cell\ntherapeutic programming and/or mental health treatment in a residential\nmental health treatment unit presents an unacceptable risk to the safety\nof incarcerated individuals or staff. Such determination shall be\ndocumented in writing and such incarcerated individual may be removed to\na residential rehabilitation unit that is not a residential mental\nhealth treatment unit where alternative mental health treatment and/or\nother therapeutic programming, as determined by a mental health\nclinician, shall be provided.\n (ii) Any determination to restrict out-of-cell therapeutic programming\nand/or mental health treatment shall be reviewed at least every fourteen\ndays by the joint case management committee or, if no such committee is\navailable, by the treatment team assigned to the incarcerated\nindividual's residential mental health treatment unit.\n (iii) The determination whether to restrict out-of-cell therapeutic\nprogramming and/or mental health treatment shall take into account the\nincarcerated individual's mental condition and any safety and security\nconcerns that would be posed by the incarcerated individual's access to\nsuch out-of-cell therapeutic programming. The joint case management\ncommittee or treatment team shall recommend that the incarcerated\nindividual shall have access to out-of-cell therapeutic programming\nand/or mental health treatment unless in exceptional circumstances such\naccess would pose an unacceptable risk to the safety of the incarcerated\nindividual or other persons. Such recommendation shall be reviewed by\nthe facility superintendent, and if the superintendent makes a\ndetermination not to accept such recommendation, the matter shall be\nreferred to the joint central office review committee for resolution.\nSuch resolution shall be made no later than twenty-one days after the\nimposition of the restriction.\n (b) Incarcerated individuals in a residential mental health treatment\nunit shall receive property, services and privileges similar to\nincarcerated individuals confined in the general prison population,\nprovided however, the department may impose general limitations on the\nquantity and type of property all incarcerated individuals on the unit\nare permitted to have in their cells and incarcerated individual access\nto programs that are more restrictive than for general population\nincarcerated individuals in order to maintain security and order on the\nunit. Further, in consultation with a mental health clinician, the\ndepartment may make an individual determination to impose restrictions\non property, services or privileges for an incarcerated individual on\nthe unit for therapeutic and/or security reasons which are not\ninconsistent with the incarcerated individual's mental health needs. If\nany such restrictions on property, services or privileges are imposed on\na particular incarcerated individual, they shall be documented in\nwriting and shall be reviewed by the joint case management committee not\nless than every thirty days. A disciplinary sanction of restricted diet\nshall not be imposed on any incarcerated individual who is housed in a\nresidential mental health treatment unit.\n 3. Misbehavior reports will not be issued to incarcerated individuals\nwith serious mental illness for refusing treatment or medication,\nhowever, an incarcerated individual may be subject to the disciplinary\nprocess for refusing to go to the location where treatment is provided\nor medication is dispensed. In addition, there will be a presumption\nagainst imposition and pursuit of disciplinary charges for self-harming\nbehavior and threats of self-harming behavior, including related charges\nfor the same behaviors, such as destruction of state property, except in\nexceptional circumstances.\n 4. A disciplinary sanction imposed on an incarcerated individual\nrequiring confinement to a cell or room shall continue to run while the\nincarcerated individual is placed in residential mental health treatment\nin a residential mental health unit model or a behavioral health unit\nmodel. Such disciplinary sanction shall be reviewed by the joint case\nmanagement committee or, if no such committee is available, by the\ntreatment team assigned to the incarcerated individual's residential\nmental health treatment unit at least once every three months to\ndetermine whether based upon the incarcerated individual's mental health\nstatus and safety and security concerns, the incarcerated individual's\ndisciplinary sanction should be reduced and/or the incarcerated\nindividual should be transferred to a less restrictive setting. Nothing\nin this subdivision shall be deemed to preclude the department from\ngranting reductions of disciplinary sanctions to incarcerated\nindividuals in other residential mental health treatment unit models.\n 5. (a) An incarcerated individual in a residential mental health\ntreatment unit shall not be sanctioned with segregated confinement for\nmisconduct on the unit, or removed from the unit and placed in\nsegregated confinement or a residential rehabilitation unit, except in\nexceptional circumstances where such incarcerated individual's conduct\nposes a significant and unreasonable risk to the safety of incarcerated\nindividuals or staff, or to the security of the facility and he or she\nhas been found to have committed an act or acts defined in subparagraph\n(ii) of paragraph (k) of subdivision six of section one hundred\nthirty-seven of this chapter. Further, in the event that such a sanction\nis imposed, an incarcerated individual shall not be required to begin\nserving such sanction until the reviews required by paragraph (b) of\nthis subdivision have been completed; provided, however that in\nextraordinary circumstances where an incarcerated individual's conduct\nposes an immediate unacceptable threat to the safety of incarcerated\nindividuals or staff, or to the security of the facility an incarcerated\nindividual may be immediately moved to a residential rehabilitation\nunit. The determination that an immediate transfer to a residential\nrehabilitation unit is necessary shall be made by the highest ranking\nfacility security supervisor in consultation with a mental health\nclinician.\n (b) The joint case management committee shall review any disciplinary\ndisposition imposing a sanction of segregated confinement at its next\nscheduled meeting. Such review shall take into account the incarcerated\nindividual's mental condition and safety and security concerns. The\njoint case management committee may only thereafter recommend the\nremoval of the incarcerated individual in exceptional circumstances\nwhere the incarcerated individual commits an act or acts defined in\nsubparagraph (ii) of paragraph (k) of subdivision six of section one\nhundred thirty-seven of this chapter and poses a significant and\nunreasonable risk to the safety of incarcerated individuals or staff or\nto the security of the facility. In the event that the incarcerated\nindividual was immediately moved to segregated confinement, the joint\ncase management committee may recommend that the incarcerated individual\ncontinue to serve such sanction only in exceptional circumstances where\nthe incarcerated individual commits an act or acts defined in\nsubparagraph (ii) of paragraph (k) of subdivision six of section one\nhundred thirty-seven of this chapter and poses a significant and\nunreasonable risk to the safety of incarcerated individuals or staff or\nto the security of the facility. If a determination is made that the\nincarcerated individual shall not be required to serve all or any part\nof the segregated confinement sanction, the joint case management\ncommittee may instead recommend that a less restrictive sanction should\nbe imposed. The recommendations made by the joint case management\ncommittee under this paragraph shall be documented in writing and\nreferred to the superintendent for review and if the superintendent\ndisagrees, the matter shall be referred to the joint central office\nreview committee for a final determination. The administrative process\ndescribed in this paragraph shall be completed within fourteen days. If\nthe result of such process is that an incarcerated individual who was\nimmediately transferred to a residential rehabilitation unit should be\nremoved from such unit, such removal shall occur as soon as practicable,\nand in no event longer than seventy-two hours from the completion of the\nadministrative process.\n 6. The department shall ensure that the curriculum for new correction\nofficers, and other new department staff who will regularly work in\nprograms providing mental health treatment for incarcerated individuals,\nshall include at least eight hours of training about the types and\nsymptoms of mental illnesses, the goals of mental health treatment, the\nprevention of suicide and training in how to effectively and safely\nmanage incarcerated individuals with mental illness. Such training may\nbe provided by the office of mental health or the justice center for the\nprotection of people with special needs. All department staff who are\ntransferring into a residential mental health treatment unit shall\nreceive a minimum of eight additional hours of such training, and eight\nhours of annual training as long as they work in such a unit. All\nsecurity, program services, mental health and medical staff with direct\nincarcerated individual contact shall receive training each year\nregarding identification of, and care for, incarcerated individuals with\nmental illnesses. The department shall provide additional training on\nthese topics on an ongoing basis as it deems appropriate. All staff\nworking in a residential mental health treatment unit shall also receive\nthe training mandated in paragraph (n) of subdivision six of section one\nhundred thirty-seven of this chapter.\n