Amd §§2, 137, 401 & 500-k, rpld §2 subs 33 & 34, §137 sub 6 ¶¶(h) - (o), §138 sub 7, §401-a sub 4, §45 sub
18, Cor L
Relates to segregated confinement; provides that certain incarcerated individuals shall not be placed in a residential rehabilitation unit; makes related provisions.
STATE OF NEW YORK
________________________________________________________________________
3035
2023-2024 Regular Sessions
IN SENATE
January 26, 2023
___________
Introduced by Sens. STEC, BORRELLO, GALLIVAN, HELMING, MATTERA, OBERACK-
ER, O'MARA, ORTT, PALUMBO, TEDISCO, WEIK -- read twice and ordered
printed, and when printed to be committed to the Committee on Crime
Victims, Crime and Correction
AN ACT to amend the correction law, in relation to confinement; and to
repeal certain provisions of such law relating thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 23 of section 2 of the correction law, as sepa-
2 rately amended by chapters 93 and 322 of the laws of 2021, is amended to
3 read as follows:
4 23. "Segregated confinement" means the disciplinary confinement of an
5 incarcerated individual in [any form of cell confinement for more than
6 seventeen hours a day other than in a facility-wide emergency or for the
7 purpose of providing medical or mental health treatment. Cell confine-
8 ment that is implemented due to medical or mental health treatment shall
9 be within a clinical area in the correctional facility or in as close
10 proximity to a medical or mental health unit as possible] a special
11 housing unit or in a separate keeplock housing unit. Special housing
12 units and separate keeplock units are housing units that consist of
13 cells grouped so as to provide separation from the general population,
14 and may be used to house incarcerated individuals confined pursuant to
15 the disciplinary procedures described in regulations.
16 § 2. Subdivisions 33 and 34 of section 2 of the correction law are
17 REPEALED.
18 § 3. Paragraph (a) of subdivision 6 of section 137 of the correction
19 law, as separately amended by chapters 93 and 322 of the laws of 2021,
20 is amended to read as follows:
21 (a) The incarcerated individual shall be supplied with a sufficient
22 quantity of wholesome and nutritious food, provided, however, that such
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06735-01-3
S. 3035 2
1 food need not be the same as the food supplied to incarcerated individ-
2 uals who are participating in programs of the facility;
3 § 4. Paragraph (d) of subdivision 6 of section 137 of the correction
4 law, as separately amended by chapters 93 and 322 of the laws of 2021,
5 clauses (A) and (E) of subparagraph (ii) as separately amended by
6 section 1 and subparagraph (iv) as separately amended by section 2 of
7 part NNN of chapter 59 of the laws of 2021, is amended to read as
8 follows:
9 (d) (i) Except as set forth in clause (E) of subparagraph (ii) of this
10 paragraph, the department, in consultation with mental health clini-
11 cians, shall divert or remove incarcerated individuals with serious
12 mental illness, as defined in paragraph (e) of this subdivision, from
13 segregated confinement [or confinement in a residential rehabilitation
14 unit], where such confinement could potentially be for a period in
15 excess of thirty days, to a residential mental health treatment unit.
16 Nothing in this paragraph shall be deemed to prevent the disciplinary
17 process from proceeding in accordance with department rules and regu-
18 lations for disciplinary hearings.
19 (ii) (A) Upon placement of an incarcerated individual into segregated
20 confinement [or a residential rehabilitation unit] at a level one or
21 level two facility, a suicide prevention screening instrument shall be
22 administered by staff from the department or the office of mental health
23 who has been trained for that purpose. If such a screening instrument
24 reveals that the incarcerated individual is at risk of suicide, a mental
25 health clinician shall be consulted and appropriate safety precautions
26 shall be taken. Additionally, within one business day of the placement
27 of such an incarcerated individual into segregated confinement at a
28 level one or level two facility [or a residential rehabilitation unit],
29 the incarcerated individual shall be assessed by a mental health clini-
30 cian.
31 (B) Upon placement of an incarcerated individual into segregated
32 confinement [or a residential rehabilitation unit] at a level three or
33 level four facility, a suicide prevention screening instrument shall be
34 administered by staff from the department or the office of mental health
35 who has been trained for that purpose. If such a screening instrument
36 reveals that the incarcerated individual is at risk of suicide, a mental
37 health clinician shall be consulted and appropriate safety precautions
38 shall be taken. All incarcerated individuals placed in segregated
39 confinement [or a residential rehabilitation unit] at a level three or
40 level four facility shall be assessed by a mental health clinician,
41 within [seven] fourteen days of such placement into segregated confine-
42 ment.
43 (C) At the initial assessment, if the mental health clinician finds
44 that an incarcerated individual suffers from a serious mental illness,
45 [that person shall be diverted or removed from segregated confinement or
46 a residential rehabilitation unit and] a recommendation shall be made
47 whether exceptional circumstances, as described in clause (E) of this
48 subparagraph, exist. In a facility with a joint case management commit-
49 tee, such recommendation shall be made by such committee. In a facility
50 without a joint case management committee, the recommendation shall be
51 made jointly by a committee consisting of the facility's highest ranking
52 mental health clinician, the deputy superintendent for security, and the
53 deputy superintendent for program services, or their equivalents. Any
54 such recommendation shall be reviewed by the joint central office review
55 committee. The administrative process described in this clause shall be
56 completed within [seven] fourteen days of the initial assessment, and if
S. 3035 3
1 the result of such process is that the incarcerated individual should be
2 removed from segregated confinement [or a residential rehabilitation
3 unit], such removal shall occur as soon as practicable, but in no event
4 more than seventy-two hours from the completion of the administrative
5 process. [Pursuant to paragraph (h) of this subdivision, nothing in this
6 section shall permit the placement of an incarcerated person with seri-
7 ous mental illness into segregated confinement at any time, even for the
8 purposes of assessment.]
9 (D) If an incarcerated individual with a serious mental illness is not
10 diverted or removed to a residential mental health treatment unit, such
11 incarcerated individual shall be [diverted to a residential rehabili-
12 tation unit and] reassessed by a mental health clinician within fourteen
13 days of the initial assessment and at least once every fourteen days
14 thereafter. After each such additional assessment, a recommendation as
15 to whether such incarcerated individual should be removed from [a resi-
16 dential rehabilitation unit] segregated confinement shall be made and
17 reviewed according to the process set forth in clause (C) of this
18 subparagraph.
19 (E) A recommendation or determination whether to remove an incarcerat-
20 ed individual from segregated confinement [or a residential rehabili-
21 tation unit] shall take into account the assessing mental health clini-
22 cians' opinions as to the incarcerated individual's mental condition and
23 treatment needs, and shall also take into account any safety and securi-
24 ty concerns that would be posed by the incarcerated individual's
25 removal, even if additional restrictions were placed on the incarcerated
26 individual's access to treatment, property, services or privileges in a
27 residential mental health treatment unit. A recommendation or determi-
28 nation shall direct the incarcerated individual's removal from segre-
29 gated confinement [or a residential rehabilitation unit] except in the
30 following exceptional circumstances: (1) when the reviewer finds that
31 removal would pose a substantial risk to the safety of the incarcerated
32 individual or other persons, or a substantial threat to the security of
33 the facility, even if additional restrictions were placed on the incar-
34 cerated individual's access to treatment, property, services or privi-
35 leges in a residential mental health treatment unit; or (2) when the
36 assessing mental health clinician determines that such placement is in
37 the incarcerated individual's best interests based on his or her mental
38 condition and that removing such incarcerated individual to a residen-
39 tial mental health treatment unit would be detrimental to his or her
40 mental condition. Any determination not to remove an incarcerated indi-
41 vidual with serious mental illness from [a residential rehabilitation
42 unit] segregated confinement shall be documented in writing and include
43 the reasons for the determination.
44 (iii) Incarcerated individuals with serious mental illness who are not
45 diverted or removed from [a residential rehabilitation unit] segregated
46 confinement shall be offered a heightened level of [mental health] care,
47 involving a minimum of [three] two hours [daily] each day, five days a
48 week, of out-of-cell therapeutic treatment and programming. This
49 heightened level of care shall not be offered only in the following
50 circumstances:
51 (A) The heightened level of care shall not apply when an incarcerated
52 individual with serious mental illness does not, in the reasonable judg-
53 ment of a mental health clinician, require the heightened level of care.
54 Such determination shall be documented with a written statement of the
55 basis of such determination and shall be reviewed by the Central New
56 York Psychiatric Center clinical director or his or her designee. Such a
S. 3035 4
1 determination is subject to change should the incarcerated individual's
2 clinical status change. Such determination shall be reviewed and docu-
3 mented by a mental health clinician every thirty days, and in consulta-
4 tion with the Central New York Psychiatric Center clinical director or
5 his or her designee not less than every ninety days.
6 (B) The heightened level of care shall not apply in exceptional
7 circumstances when providing such care would create an unacceptable risk
8 to the safety and security of incarcerated individuals or staff. Such
9 determination shall be documented by security personnel together with
10 the basis of such determination and shall be reviewed by the facility
11 superintendent, in consultation with a mental health clinician, not less
12 than every seven days for as long as the incarcerated individual remains
13 in [a residential rehabilitation unit] segregated confinement. The
14 facility shall attempt to resolve such exceptional circumstances so that
15 the heightened level of care may be provided. If such exceptional
16 circumstances remain unresolved for thirty days, the matter shall be
17 referred to the joint central office review committee for review.
18 (iv) Incarcerated individuals with serious mental illness who are not
19 diverted or removed from segregated confinement shall not be placed on a
20 restricted diet, unless there has been a written determination that the
21 restricted diet is necessary for reasons of safety and security. If a
22 restricted diet is imposed, it shall be limited to seven days, except in
23 the exceptional circumstances where the joint case management committee
24 determines that limiting the restricted diet to seven days would pose an
25 unacceptable risk to the safety and security of incarcerated individuals
26 or staff. In such case, the need for a restricted diet shall be reas-
27 sessed by the joint case management committee every seven days.
28 (v) All incarcerated individuals in segregated confinement in a level
29 one or level two facility [or a residential rehabilitation unit] who are
30 not assessed with a serious mental illness at the initial assessment
31 shall be offered at least one interview with a mental health clinician
32 within [seven] fourteen days of their initial mental health assessment,
33 and additional interviews at least every thirty days thereafter, unless
34 the mental health clinician at the most recent interview recommends an
35 earlier interview or assessment. All incarcerated individuals in [a
36 residential rehabilitation unit] segregated confinement in a level three
37 or level four facility who are not assessed with a serious mental
38 illness at the initial assessment shall be offered at least one inter-
39 view with a mental health clinician within thirty days of their initial
40 mental health assessment, and additional interviews at least every nine-
41 ty days thereafter, unless the mental health clinician at the most
42 recent interview recommends an earlier interview or assessment.
43 § 5. Paragraphs (h), (i), (j), (k), (l), (m), (n) and (o) of subdivi-
44 sion 6 of section 137 of the correction law are REPEALED.
45 § 6. Subdivision 7 of section 138 of the correction law is REPEALED.
46 § 7. Subdivision 1 of section 401 of the correction law, as separately
47 amended by chapters 93 and 322 of the laws of 2021, is amended to read
48 as follows:
49 1. The commissioner, in cooperation with the commissioner of mental
50 health, shall establish programs, including but not limited to residen-
51 tial mental health treatment units, in such correctional facilities as
52 he or she may deem appropriate for the treatment of mentally ill incar-
53 cerated individuals confined in state correctional facilities who are in
54 need of psychiatric services but who do not require hospitalization for
55 the treatment of mental illness. Incarcerated individuals with serious
56 mental illness shall receive therapy and programming in settings that
S. 3035 5
1 are appropriate to their clinical needs while maintaining the safety and
2 security of the facility.
3 [The conditions and services provided in the residential mental health
4 treatment units shall be at least comparable to those in all residential
5 rehabilitation units, and all residential mental health treatment units
6 shall be in compliance with all provisions of paragraphs (i), (j), (k),
7 and (l) of subdivision six of section one hundred thirty-seven of this
8 chapter. Residential mental health treatment units that are either resi-
9 dential mental health unit models or behavioral health unit models shall
10 also be in compliance with all provisions of paragraph (m) of subdivi-
11 sion six of section one hundred thirty-seven of this chapter.
12 The residential mental health treatment units shall also provide the
13 additional mental health treatment, services, and programming delineated
14 in this section.] The administration and operation of programs estab-
15 lished pursuant to this section shall be the joint responsibility of the
16 commissioner of mental health and the commissioner. The professional
17 mental health care personnel, and their administrative and support
18 staff, for such programs shall be employees of the office of mental
19 health. All other personnel shall be employees of the department.
20 § 8. Subparagraph (i) of paragraph (a) of subdivision 2 of section 401
21 of the correction law, as amended by chapter 486 of the laws of 2022, is
22 amended to read as follows:
23 (i) In exceptional circumstances, a mental health clinician, or the
24 highest ranking facility security supervisor in consultation with a
25 mental health clinician who has interviewed the incarcerated individual,
26 may determine that an incarcerated individual's access to out-of-cell
27 therapeutic programming and/or mental health treatment in a residential
28 mental health treatment unit presents an unacceptable risk to the safety
29 of incarcerated individuals or staff. Such determination shall be docu-
30 mented in writing and [such incarcerated individual may be removed to a
31 residential rehabilitation unit that is not a residential mental health
32 treatment unit] where alternative mental health treatment and/or other
33 therapeutic programming, as determined by a mental health clinician,
34 shall be provided.
35 § 9. Subdivision 5 of section 401 of the correction law, as separately
36 amended by chapters 93 and 322 of the laws of 2021, is amended to read
37 as follows:
38 5. (a) An incarcerated individual in a residential mental health
39 treatment unit shall not be sanctioned with segregated confinement for
40 misconduct on the unit, or removed from the unit and placed in segre-
41 gated confinement [or a residential rehabilitation unit], except in
42 exceptional circumstances where such incarcerated individual's conduct
43 poses a significant and unreasonable risk to the safety of incarcerated
44 individuals or staff, or to the security of the facility [and he or she
45 has been found to have committed an act or acts defined in subparagraph
46 (ii) of paragraph (k) of subdivision six of section one hundred thirty-
47 seven of this chapter]. Further, in the event that such a sanction is
48 imposed, an incarcerated individual shall not be required to begin serv-
49 ing such sanction until the reviews required by paragraph (b) of this
50 subdivision have been completed; provided, however that in extraordinary
51 circumstances where an incarcerated individual's conduct poses an imme-
52 diate unacceptable threat to the safety of incarcerated individuals or
53 staff, or to the security of the facility an incarcerated individual may
54 be immediately moved to [a residential rehabilitation unit] segregated
55 confinement. The determination that an immediate transfer to [a resi-
56 dential rehabilitation unit] segregated confinement is necessary shall
S. 3035 6
1 be made by the highest ranking facility security supervisor in consulta-
2 tion with a mental health clinician.
3 (b) The joint case management committee shall review any disciplinary
4 disposition imposing a sanction of segregated confinement at its next
5 scheduled meeting. Such review shall take into account the incarcerated
6 individual's mental condition and safety and security concerns. The
7 joint case management committee may only thereafter recommend the
8 removal of the incarcerated individual in exceptional circumstances
9 where the incarcerated individual [commits an act or acts defined in
10 subparagraph (ii) of paragraph (k) of subdivision six of section one
11 hundred thirty-seven of this chapter and] poses a significant and unrea-
12 sonable risk to the safety of incarcerated individuals or staff or to
13 the security of the facility. In the event that the incarcerated indi-
14 vidual was immediately moved to segregated confinement, the joint case
15 management committee may recommend that the incarcerated individual
16 continue to serve such sanction only in exceptional circumstances where
17 the incarcerated individual [commits an act or acts defined in subpara-
18 graph (ii) of paragraph (k) of subdivision six of section one hundred
19 thirty-seven of this chapter and] poses a significant and unreasonable
20 risk to the safety of incarcerated individuals or staff or to the secu-
21 rity of the facility. If a determination is made that the incarcerated
22 individual shall not be required to serve all or any part of the segre-
23 gated confinement sanction, the joint case management committee may
24 instead recommend that a less restrictive sanction should be imposed.
25 The recommendations made by the joint case management committee under
26 this paragraph shall be documented in writing and referred to the super-
27 intendent for review and if the superintendent disagrees, the matter
28 shall be referred to the joint central office review committee for a
29 final determination. The administrative process described in this para-
30 graph shall be completed within fourteen days. If the result of such
31 process is that an incarcerated individual who was immediately trans-
32 ferred to [a residential rehabilitation unit] segregated confinement
33 should be removed from [such unit], segregated confinement such removal
34 shall occur as soon as practicable, and in no event longer than seven-
35 ty-two hours from the completion of the administrative process.
36 § 10. Subdivision 6 of section 401 of the correction law, as separate-
37 ly amended by section 9 of part NNN of chapter 59 and chapter 322 of the
38 laws of 2021, is amended to read as follows:
39 6. The department shall ensure that the curriculum for new correction
40 officers, and other new department staff who will regularly work in
41 programs providing mental health treatment for incarcerated individuals,
42 shall include at least eight hours of training about the types and symp-
43 toms of mental illnesses, the goals of mental health treatment, the
44 prevention of suicide and training in how to effectively and safely
45 manage incarcerated individuals with mental illness. Such training may
46 be provided by the office of mental health or the justice center for the
47 protection of people with special needs. All department staff who are
48 transferring into a residential mental health treatment unit shall
49 receive a minimum of eight additional hours of such training, and eight
50 hours of annual training as long as they work in such a unit. All secu-
51 rity, program services, mental health and medical staff with direct
52 incarcerated individual contact shall receive training each year regard-
53 ing identification of, and care for, incarcerated individuals with
54 mental illnesses. The department shall provide additional training on
55 these topics on an ongoing basis as it deems appropriate. [All staff
56 working in a residential mental health treatment unit shall also receive
S. 3035 7
1 the training mandated in paragraph (n) of subdivision six of section one
2 hundred thirty-seven of this chapter.]
3 § 11. Subdivision 4 of section 401-a of the correction law is
4 REPEALED.
5 § 12. Subdivision 18 of section 45 of the correction law is REPEALED.
6 § 13. Section 500-k of the correction law, as separately amended by
7 chapters 93 and 322 of the laws of 2021 and subdivision 2 as amended by
8 chapter 486 of the laws of 2022, is amended to read as follows:
9 § 500-k. Treatment of incarcerated individuals. [1.] Subdivisions five
10 and six of section one hundred thirty-seven of this chapter, except
11 paragraphs (d) and (e) of subdivision six of such section, relating to
12 the treatment of incarcerated individuals in state correctional facili-
13 ties are applicable to incarcerated individuals confined in county
14 jails; except that the report required by paragraph (f) of subdivision
15 six of such section shall be made to a person designated to receive such
16 report in the rules and regulations of the state commission of
17 correction, or in any county or city where there is a department of
18 correction, to the head of such department.
19 [2. Notwithstanding any other section of law to the contrary, subdivi-
20 sion thirty-four of section two of this chapter, and subparagraphs (i),
21 (iv) and (v) of paragraph (j) and subparagraph (ii) of paragraph (m) of
22 subdivision six of section one hundred thirty-seven of this chapter
23 shall not apply to local correctional facilities with a total combined
24 capacity of five hundred incarcerated individuals or fewer.]
25 § 14. This act shall take effect immediately.
