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