S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   10593
 
                           I N  A S S E M B L Y
 
                               July 6, 2022
                                ___________
 
 Introduced  by COMMITTEE ON RULES -- (at request of M. of A. Simpson) --
   read once and referred to the Committee on 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:

   Section 1. Subdivision 23 of section 2 of the correction law, as sepa-
 rately amended by chapters 93 and 322 of the laws of 2021, is amended to
 read as follows:
   23. "Segregated confinement" means the DISCIPLINARY confinement of  an
 incarcerated  individual  in [any form of cell confinement for more than
 seventeen hours a day other than in a facility-wide emergency or for the
 purpose of providing medical or mental health treatment.  Cell  confine-
 ment that is implemented due to medical or mental health treatment shall
 be  within  a  clinical area in the correctional facility or in as close
 proximity to a medical or mental health  unit  as  possible]  A  SPECIAL
 HOUSING  UNIT  OR  IN A SEPARATE KEEPLOCK HOUSING UNIT.  SPECIAL HOUSING
 UNITS AND SEPARATE KEEPLOCK UNITS ARE  HOUSING  UNITS  THAT  CONSIST  OF
 CELLS  GROUPED  SO AS TO PROVIDE SEPARATION FROM THE GENERAL POPULATION,
 AND MAY BE USED TO HOUSE INCARCERATED INDIVIDUALS CONFINED  PURSUANT  TO
 THE DISCIPLINARY PROCEDURES DESCRIBED IN REGULATIONS.
   §  2.  Subdivisions  33  and 34 of section 2 of the correction law are
 REPEALED.
   § 3. Paragraph (a) of subdivision 6 of section 137 of  the  correction
 law,  as  separately amended by chapters 93 and 322 of the laws of 2021,
 is amended to read as follows:
   (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  INDIVID-
 UALS WHO ARE PARTICIPATING IN PROGRAMS OF THE FACILITY;
   §  4.  Paragraph (d) of subdivision 6 of section 137 of the correction
 law, as separately amended by chapters 93 and 322 of the laws  of  2021,
 clauses  (A)  and  (E)  of  subparagraph  (ii)  as separately amended by
 section 1 and subparagraph (iv) as separately amended by  section  2  of
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD15869-01-2
 A. 10593                            2
 
 part  NNN  of  chapter  59  of  the  laws of 2021, is amended to read as
 follows:
   (d) (i) Except as set forth in clause (E) of subparagraph (ii) of this
 paragraph,  the  department,  in  consultation with mental health clini-
 cians, 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  regu-
 lations 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 clini-
 cian.
   (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] FOURTEEN days of such placement into segregated  confine-
 ment.
   (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 commit-
 tee, 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] FOURTEEN 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 seri-
 A. 10593                            3

 ous 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  rehabili-
 tation 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 resi-
 dential rehabilitation unit] 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 incarcerat-
 ed individual from segregated confinement [or  a  residential  rehabili-
 tation  unit] shall take into account the assessing mental health clini-
 cians' opinions as to the incarcerated individual's mental condition and
 treatment needs, and shall also take into account any safety and securi-
 ty 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  determi-
 nation  shall  direct  the incarcerated individual's removal from segre-
 gated 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  incar-
 cerated  individual's  access to treatment, property, services or privi-
 leges 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 residen-
 tial mental health treatment unit would be detrimental  to  his  or  her
 mental  condition. Any determination not to remove an incarcerated indi-
 vidual with serious mental illness from  [a  residential  rehabilitation
 unit]  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 [a residential rehabilitation unit]  SEGREGATED
 CONFINEMENT shall be offered a heightened level of [mental health] care,
 involving  a  minimum of [three] TWO hours [daily] 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 judg-
 ment 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  docu-
 mented  by a mental health clinician every thirty days, and in consulta-
 tion with the Central New York Psychiatric Center clinical  director  or
 his or her designee not less than every ninety days.
 A. 10593                            4
 
   (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]  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 REAS-
 SESSED BY THE JOINT CASE MANAGEMENT COMMITTEE EVERY SEVEN DAYS.
   (V) 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] 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  [a
 residential rehabilitation unit] 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  inter-
 view  with a mental health clinician within thirty days of their initial
 mental health assessment, and additional interviews at least every nine-
 ty days thereafter, unless the  mental  health  clinician  at  the  most
 recent interview recommends an earlier interview or assessment.
   §  5. Paragraphs (h), (i), (j), (k), (l), (m), (n) and (o) of subdivi-
 sion 6 of section 137 of the correction law are REPEALED.
   § 6. Subdivision 7 of section 138 of the correction law is REPEALED.
   § 7. Subdivision 1 of section 401 of the correction law, as separately
 amended by chapters 93 and 322 of the laws of 2021, is amended  to  read
 as follows:
   1.  The  commissioner,  in cooperation with the commissioner of mental
 health, shall establish programs, including but not limited to  residen-
 tial  mental  health treatment units, in such correctional facilities as
 he or she may deem appropriate for the treatment of mentally ill  incar-
 cerated 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
 A. 10593                            5

 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 resi-
 dential mental health unit models or behavioral health unit models shall
 also  be  in compliance with all provisions of paragraph (m) of subdivi-
 sion 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 estab-
 lished 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.
   § 8. Subparagraph (i) of paragraph (a) of subdivision 2 of section 401
 of the correction law, as separately amended by section 8 of part NNN of
 chapter  59  and  chapter 322 of the laws of 2021, is amended to read as
 follows:
   (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  docu-
 mented in writing and [such inmate may be removed to a residential reha-
 bilitation  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.
   § 9. Subdivision 5 of section 401 of the correction law, as separately
 amended by chapters 93 and 322 of the laws of 2021, is amended  to  read
 as follows:
   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 segre-
 gated 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 serv-
 ing  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  imme-
 diate  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]  SEGREGATED
 CONFINEMENT.    The determination that an immediate transfer to [a resi-
 dential rehabilitation unit] SEGREGATED CONFINEMENT is  necessary  shall
 be made by the highest ranking facility security supervisor in consulta-
 tion 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
 A. 10593                            6
 
 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 unrea-
 sonable risk to the safety of incarcerated individuals or  staff  or  to
 the  security  of the facility. In the event that the incarcerated indi-
 vidual 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 subpara-
 graph (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  secu-
 rity  of  the facility. If a determination is made that the incarcerated
 individual shall not be required to serve all or any part of the  segre-
 gated  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 super-
 intendent 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  para-
 graph  shall  be  completed  within fourteen days. If the result of such
 process is that an incarcerated individual who  was  immediately  trans-
 ferred  to  [a  residential  rehabilitation unit] SEGREGATED CONFINEMENT
 should be removed from [such unit], SEGREGATED CONFINEMENT such  removal
 shall  occur  as soon as practicable, and in no event longer than seven-
 ty-two hours from the completion of the administrative process.
   § 10. Subdivision 6 of section 401 of the correction law, as separate-
 ly amended by section 9 of part NNN of chapter 59 and chapter 322 of the
 laws of 2021, is amended to read as follows:
   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 symp-
 toms 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  secu-
 rity,  program  services,  mental  health  and medical staff with direct
 incarcerated individual contact shall receive training each year regard-
 ing 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.]
   §  11.  Subdivision  4  of  section  401-a  of  the  correction law is
 REPEALED.
 A. 10593                            7
 
   § 12. Subdivision 18 of section 45 of the correction law, as added  by
 chapter 93 of the laws of 2021, is REPEALED.
   §  13.  Section  500-k of the correction law, as separately amended by
 chapters 93 and 322 of the laws of 2021, is amended to read as follows:
   § 500-k. Treatment of incarcerated individuals. [1.] Subdivisions five
 and six of section one hundred  thirty-seven  of  this  chapter,  except
 paragraphs  (d)  and (e) of subdivision six of such section, relating to
 the treatment of incarcerated individuals in state correctional  facili-
 ties  are  applicable  to  incarcerated  individuals  confined in county
 jails; except that the report required by paragraph (f)  of  subdivision
 six of such section shall be made to a person designated to receive such
 report  in  the  rules  and  regulations  of  the  state  commission  of
 correction, or in any county or city where  there  is  a  department  of
 correction, to the head of such department.
   [2. Notwithstanding any other section of law to the contrary, subdivi-
 sion  thirty-four of section two of this chapter, and subparagraphs (i),
 (iv) and (v) of paragraph (j) and subparagraph (ii) of paragraph (m)  of
 subdivision  six  of  section  one  hundred thirty-seven of this chapter
 shall not apply to local correctional facilities with a  total  combined
 capacity of five hundred inmates or fewer.]
   § 14. This act shall take effect immediately.