§ 137. Program of treatment, control, discipline at correctional facilities. 1. The commissioner shall establish program and classification procedures designed to assure the complete study of the background and condition of each incarcerated individual in the care or custody of the department and the assignment of such incarcerated individual to a program that is most likely to be useful in assisting him or her to refrain from future violations of the law. Such procedures shall be incorporated into the rules and regulations of the department and shall require among other things: consideration of the physical, mental and emotional condition of the incarcerated individual; consideration of his or her educational and vocational needs; enrollment of each incarcerated individual in assigned programs as soon as practicable; consideration of the danger he or she presents to the community or to other incarcerated individuals; the recording of continuous case histories including notations as to apparent success or failure of treatment employed; and periodic review of case histories and treatment methods used.

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2. The commissioner shall provide for such measures as he or she may deem necessary or appropriate for the safety, security and control of correctional facilities and the maintenance of order therein.

3. Each incarcerated individual shall be entitled to clothing suited to the season and weather conditions and to a sufficient quantity of wholesome and nutritious food. To the extent practicable, the clothing and bedding of incarcerated individuals shall be manufactured and laundered in institutions in the department.

4. Whenever there shall be a sufficient number of cells or rooms in a correctional facility, each incarcerated individual shall be given sleeping accommodations in a separate cell or room, provided, however, that nothing herein contained shall be construed so as to limit the right of the department to utilize dormitory-type accommodations where necessary or where appropriate to a program of treatment.

5. No incarcerated individual in the care or custody of the department shall be subjected to degrading treatment, and no officer or other employee of the department shall inflict any blows whatever upon any incarcerated individual, unless in self defense, or to suppress a revolt or insurrection. When any incarcerated individual, or group of incarcerated individuals, shall offer violence to any person, or do or attempt to do any injury to property, or attempt to escape, or resist or disobey any lawful direction, the officers and employees shall use all suitable means to defend themselves, to maintain order, to enforce observation of discipline, to secure the persons of the offenders and to prevent any such attempt or escape.

6. Except as provided in paragraphs (d) and (e) of this subdivision, the superintendent of a correctional facility may keep any incarcerated individual confined in a cell or room, apart from the accommodations provided for incarcerated individuals who are participating in programs of the facility, for such period as may be necessary for maintenance of order or discipline, but in any such case the following conditions shall be observed:

(a) The incarcerated individual shall be supplied with a sufficient quantity of wholesome and nutritious food;

(b) Adequate sanitary and other conditions required for the health of the incarcerated individual shall be maintained;

(c) Where such confinement is for a period in excess of twenty-four hours, the superintendent shall arrange for the facility health services director, or a registered nurse or physician's associate approved by the facility health services director to visit such incarcerated individual at the expiration of twenty-four hours and at least once in every twenty-four hour period thereafter, during the period of such confinement, to examine into the state of health of the incarcerated individual, and the superintendent shall give full consideration to any recommendation that may be made by the facility health services director for measures with respect to dietary needs or conditions of confinement of such incarcerated individual required to maintain the health of such incarcerated individual; and

(d) (i) Except as set forth in clause (E) of subparagraph (ii) of this paragraph, the department, in consultation with mental health clinicians, 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 regulations 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 clinician.

(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 days of such placement into segregated confinement.

(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 committee, 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 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 serious 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 rehabilitation 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 residential rehabilitation unit 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 incarcerated individual from segregated confinement or a residential rehabilitation unit shall take into account the assessing mental health clinicians' opinions as to the incarcerated individual's mental condition and treatment needs, and shall also take into account any safety and security 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 determination shall direct the incarcerated individual's removal from segregated 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 incarcerated individual's access to treatment, property, services or privileges 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 residential mental health treatment unit would be detrimental to his or her mental condition. Any determination not to remove an incarcerated individual with serious mental illness from a residential rehabilitation unit 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 shall be offered a heightened level of mental health care, involving a minimum of three hours daily 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 judgment 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 documented by a mental health clinician every thirty days, and in consultation with the Central New York Psychiatric Center clinical director or his or her designee not less than every ninety days.

(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. 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) 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 days of their initial mental health assessment, unless the mental health clinician at the most recent interview recommends an earlier interview or assessment. All incarcerated individuals in a residential rehabilitation unit 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 interview with a mental health clinician within thirty days of their initial mental health assessment, and additional interviews at least every ninety days thereafter, unless the mental health clinician at the most recent interview recommends an earlier interview or assessment.

(e) An incarcerated individual has a serious mental illness when he or she has been determined by a mental health clinician to meet at least one of the following criteria:

(i) he or she has a current diagnosis of, or is diagnosed at the initial or any subsequent assessment conducted during the incarcerated individual's segregated confinement with, one or more of the following types of Axis I diagnoses, as described in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, and such diagnoses shall be made based upon all relevant clinical factors, including but not limited to symptoms related to such diagnoses:

(A) schizophrenia (all sub-types),

(B) delusional disorder,

(C) schizophreniform disorder,

(D) schizoaffective disorder,

(E) brief psychotic disorder,

(F) substance-induced psychotic disorder (excluding intoxication and withdrawal),

(G) psychotic disorder not otherwise specified,

(H) major depressive disorders, or

(I) bipolar disorder I and II;

(ii) he or she is actively suicidal or has engaged in a recent, serious suicide attempt;

(iii) he or she has been diagnosed with a mental condition that is frequently characterized by breaks with reality, or perceptions of reality, that lead the individual to experience significant functional impairment involving acts of self-harm or other behavior that have a seriously adverse effect on life or on mental or physical health;

(iv) he or she has been diagnosed with an organic brain syndrome that results in a significant functional impairment involving acts of self-harm or other behavior that have a seriously adverse effect on life or on mental or physical health;

(v) he or she has been diagnosed with a severe personality disorder that is manifested by frequent episodes of psychosis or depression, and results in a significant functional impairment involving acts of self-harm or other behavior that have a seriously adverse effect on life or on mental or physical health; or

(vi) he or she has been determined by a mental health clinician to have otherwise substantially deteriorated mentally or emotionally while confined in segregated confinement and is experiencing significant functional impairment indicating a diagnosis of serious mental illness and involving acts of self-harm or other behavior that have a serious adverse effect on life or on mental or physical health.

(f) The superintendent shall make a full report to the commissioner at least once a week concerning the condition of such incarcerated individual and shall forthwith report to the commissioner any recommendation relative to health maintenance or health care delivery made by the facility health services director and any recommendation relative to mental health treatment or confinement of an incarcerated individual with a serious mental illness made by the mental health clinician pursuant to paragraphs (d) and (e) of this subdivision that is not endorsed or carried out, as the case may be, by the superintendent.

(g) Within twenty-four hours of disciplinary confinement, keeplock pending a disciplinary hearing, placement in a segregated confinement unit for administrative purposes, or placement in a residential mental health treatment unit, and at weekly intervals thereafter for the duration of such confinement, an incarcerated individual shall be permitted to make at least one personal phone call, except when to do so would create an unacceptable risk to the safety and security of incarcerated individuals or staff.

(h) Persons in a special population as defined in subdivision thirty-three of section two of this chapter shall not be placed in segregated confinement for any length of time, except in keeplock for a period prior to a disciplinary hearing pursuant to paragraph (l) of this subdivision. Individuals in a special population who are in keeplock prior to a disciplinary hearing shall be given seven hours a day out-of-cell time or shall be transferred to a residential rehabilitation unit or residential mental health treatment unit as expeditiously as possible, but in no case longer than forty-eight hours from the time an individual is admitted to keeplock.

(i) (i) No person may be placed in segregated confinement for longer than necessary and no more than fifteen consecutive days. Nor shall any person be placed in segregated confinement for more than twenty total days within any sixty day period except as otherwise provided in subparagraph (ii) of this paragraph. At these limits, he or she must be released from segregated confinement or diverted to a separate residential rehabilitation unit. If placement of such person in segregated confinement would exceed the twenty-day limit and the department establishes that the person committed an act defined in subparagraph (ii) of paragraph (k) of this subdivision, the department may place the person in segregated confinement until admission to a residential rehabilitation unit can be effectuated. Such admission to a residential rehabilitation unit shall occur as expeditiously as possible and in no case take longer than forty-eight hours from the time such person is placed in segregated confinement.

(ii) For offenses determined pursuant to paragraph (l) of this subdivision to constitute a violent felony act defined in subparagraph (ii) of paragraph (k) of this subdivision, if occurring more than one time within any sixty day period, up to an additional fifteen consecutive days in segregated confinement may occur for each such additional incident. If such subsequent incident takes place in a residential rehabilitation unit or general population, the person may be returned to segregated confinement for up to fifteen consecutive days. If such subsequent incident takes place in segregated confinement and causes physical injury to another person, the person may receive up to an additional fifteen consecutive days in segregated confinement, provided however that the person must spend at least fifteen days in a residential rehabilitation unit in between each placement of up to fifteen consecutive days in segregated confinement. Custody under this subparagraph shall otherwise be in accordance with this chapter.

(j) (i) All segregated confinement and residential rehabilitation units shall create the least restrictive environment necessary for the safety of incarcerated persons, staff, and the security of the facility.

(ii) Persons in segregated confinement shall be offered out-of-cell programming at least four hours per day, including at least one hour for recreation. Persons admitted to residential rehabilitation units shall be offered at least six hours of daily out-of-cell congregate programming, services, treatment, recreation, activities and/or meals, with an additional minimum of one hour for recreation. Recreation in all residential rehabilitation units shall take place in a congregate setting, unless exceptional circumstances mean doing so would create a significant and unreasonable risk to the safety and security of other incarcerated persons, staff, or the facility. Persons in segregated confinement and residential rehabilitation units shall be offered programming led by program or therapeutic staff five days per week, except on recognized state legal holidays. All other out-of-cell time may include peer-led programs, time in a day room or out-of-cell recreation area with other people, congregate meals, volunteer programs, or other congregate activities.

(iii) No limitation on services, treatment, or basic needs such as clothing, food and bedding shall be imposed as a form of punishment. If provision of any such services, treatment or basic needs to an individual would create a significant and unreasonable risk to the safety and security of incarcerated persons, staff, or the facility, such services, treatment or basic needs may be withheld until it reasonably appears that the risk has ended. The department shall not impose restricted diets or any other change in diet as a form of punishment. Persons in a residential rehabilitation unit shall have access to all of their personal property unless an individual determination is made that having a specific item would pose a significant and unreasonable risk to the safety of incarcerated persons or staff or the security of the unit.

(iv) Upon admission to a residential rehabilitation unit, program and mental health staff shall administer assessments and develop an individual rehabilitation plan in consultation with the resident, based upon his or her medical, mental health, and programming needs. Such plan shall identify specific goals and programs, treatment, and services to be offered, with projected time frames for completion and discharge from the residential rehabilitation unit.

(v) An incarcerated person in a residential rehabilitation unit shall have access to programs and work assignments comparable to core programs and types of work assignments in general population. Such incarcerated persons shall also have access to additional out-of-cell, trauma-informed therapeutic programming aimed at promoting personal development, addressing underlying causes of problematic behavior resulting in placement in a residential rehabilitation unit, and helping prepare for discharge from the unit and to the community.

(vi) If the department establishes that a person committed an act defined in subparagraph (ii) of paragraph (k) of this subdivision while in segregated confinement or a residential rehabilitation unit and poses a significant and unreasonable risk to the safety and security of other incarcerated persons or staff, the department may restrict such person's participation in programming and out-of-cell activities as necessary for the safety of other incarcerated persons and staff. If such restrictions are imposed, the department must provide at least four hours out-of-cell time daily, including at least two hours of therapeutic programming and two hours of recreation, and must make reasonable efforts to reinstate access to programming as soon as possible. In no case may such restrictions extend beyond fifteen days unless the person commits a new act defined herein justifying restrictions on program access, or if the commissioner and, when appropriate, the commissioner of mental health personally reasonably determine that the person poses an extraordinary and unacceptable risk of imminent harm to the safety or security of incarcerated persons or staff. Any extension of program restrictions beyond fifteen days must be meaningfully reviewed and approved at least every fifteen days by the commissioner and, when appropriate, by the commissioner of mental health. Each review must consider the impact of therapeutic programming provided during the fifteen-day period on the person's risk of imminent harm and the commissioner must articulate in writing, with a copy provided to the incarcerated person, the specific reason why the person currently poses an extraordinary and unacceptable risk of imminent harm to the safety or security of incarcerated persons or staff. In no case may restrictions imposed by the commissioner extend beyond ninety days unless the person commits a new act defined herein justifying restrictions on program access.

(vii) Restraints shall not be used when incarcerated persons are participating in out-of-cell activities within a residential rehabilitation unit unless an individual assessment is made that restraints are required because of a significant and unreasonable risk to the safety and security of other incarcerated persons or staff.

(k) (i) The department may place a person in segregated confinement for up to three consecutive days and no longer than six days in any thirty day period if, pursuant to an evidentiary hearing, it determines that the person violated department rules which permit a penalty of segregated confinement. The department may not place a person in segregated confinement for longer than three consecutive days or six days total in a thirty day period unless the provisions of subparagraph (ii) of this paragraph are met.

(ii) The department may place a person in segregated confinement beyond the limits of subparagraph (i) of this paragraph or in a residential rehabilitation unit only if, pursuant to an evidentiary hearing, it determines by written decision that the person committed one of the following acts and if the commissioner or his or her designee determines in writing based on specific objective criteria the acts were so heinous or destructive that placement of the individual in general population housing creates a significant risk of imminent serious physical injury to staff or other incarcerated persons, and creates an unreasonable risk to the security of the facility:

(A) causing or attempting to cause serious physical injury or death to another person or making an imminent threat of such serious physical injury or death if the person has a history of causing such physical injury or death and the commissioner and, when appropriate, the commissioner of mental health or their designees reasonably determine that there is a strong likelihood that the person will carry out such threat. The commissioner of mental health or his or her designee shall be involved in such determination if the person is or has been on the mental health caseload or appears to require psychiatric attention. The department and the office of mental health shall promulgate rules and regulations pertaining to this clause;

(B) compelling or attempting to compel another person, by force or threat of force, to engage in a sexual act;

(C) extorting another, by force or threat of force, for property or money;

(D) coercing another, by force or threat of force, to violate any rule;

(E) leading, organizing, inciting, or attempting to cause a riot, insurrection, or other similarly serious disturbance that results in the taking of a hostage, major property damage, or physical harm to another person;

(F) procuring a deadly weapon or other dangerous contraband that poses a serious threat to the security of the institution; or

(G) escaping, attempting to escape or facilitating an escape from a facility or escaping or attempting to escape while under supervision outside such facility.

For purposes of this section, attempting to cause a serious disturbance or to escape shall only be determined to have occurred if there is a clear finding that the incarcerated individual had the intent to cause a serious disturbance or the intent to escape and had completed significant acts in the advancement of the attempt to create a serious disturbance or escape. Evidence of withdrawal or abandonment of a plan to cause a serious disturbance or to escape shall negate a finding of intent.

(iii) No person may be placed in segregated confinement or a residential rehabilitation unit based on the same act or incident that was previously used as the basis for such placement.

(iv) No person may be held in segregated confinement for protective custody. Any unit used for protective custody must, at a minimum, conform to requirements governing residential rehabilitation units.

(l) All hearings to determine if a person may be placed in segregated confinement shall occur prior to placement in segregated confinement unless a security supervisor, with written approval of a facility superintendent or designee, reasonably believes the person fits the specified criteria for segregated confinement in subparagraph (ii) of paragraph (k) of this subdivision. If a hearing does not take place prior to placement, it shall occur as soon as reasonably practicable and at most within five days of such placement unless the charged person seeks a postponement of the hearing. Persons at such hearings shall be permitted to be represented by any attorney or law student, or by any paralegal or incarcerated person unless the department reasonably disapproves of such paralegal or incarcerated person based upon objective written criteria developed by the department.

(m) (i) Any sanction imposed on an incarcerated person requiring segregated confinement shall run while the person is in a residential rehabilitation unit and the person shall be discharged from the unit before or at the time such sanction expires. If a person successfully completes his or her rehabilitation plan before the sanction expires, the person shall have a right to be discharged from the unit upon such completion.

(ii) If an incarcerated person has not been discharged from a residential rehabilitation unit within one year of initial admission to such a unit or is within sixty days of a fixed or tentatively approved date for release from a correctional facility, he or she shall have a right to be discharged from the unit unless he or she committed an act listed in subparagraph (ii) of paragraph (k) of this subdivision within the prior one hundred eighty days and he or she poses a significant and unreasonable risk to the safety or security of incarcerated persons or staff. In any such case the decision not to discharge such person shall be immediately and automatically subjected to an independent review by the commissioner and the commissioner of mental health or their designees. A person may remain in a residential rehabilitation unit beyond the time limits provided in this section if both commissioners or both of their designees approve this decision. In extraordinary circumstances, a person who has not committed an act listed in subparagraph (ii) of paragraph (k) of this subdivision within the prior one hundred eighty days, may remain in a residential rehabilitation unit beyond the time limits provided in this section if both the commissioner and the commissioner of mental health personally determine that such individual poses an extraordinary and unacceptable risk of imminent harm to the safety or security of incarcerated persons or staff.

(iii) There shall be a meaningful periodic review of the status of each incarcerated person in a residential rehabilitation unit at least every sixty days to assess the person's progress and determine if the person should be discharged from the unit. Following such periodic review, if the person is not discharged from the unit, program and mental health staff shall specify in writing the reasons for the determination and the program, treatment, service, and/or corrective action required before discharge. The incarcerated person shall be given access to the programs, treatment and services specified, and shall have a right to be discharged from the residential rehabilitation unit upon the successful fulfillment of such requirements.

(iv) When an incarcerated person is discharged from a residential rehabilitation unit, any remaining time to serve on any underlying disciplinary sanction shall be dismissed. If an incarcerated person substantially completes his or her rehabilitation plan, he or she shall have any associated loss of good time restored upon discharge from the unit.

(n) All special housing unit, keeplock unit and residential rehabilitation unit staff and their supervisors shall undergo specialized training prior to assignment to such unit, and regular specialized training thereafter, on substantive content developed in consultation with relevant experts, on topics including, but not limited to, the purpose and goals of the non-punitive therapeutic environment, trauma-informed care, restorative justice, and dispute resolution methods. Prior to presiding over any hearings, all hearing officers shall undergo a minimum of thirty-seven hours of training, with one additional day of training annually thereafter, on relevant topics, including but not limited to, the physical and psychological effects of segregated confinement, procedural and due process rights of the accused, and restorative justice remedies.

(o) The department shall publish monthly reports on its website, with semi-annual and annual cumulative reports, of the total number of people who are in segregated confinement and the total number of people who are in residential rehabilitation units on the first day of each month. The reports shall provide a breakdown of the number of people in segregated confinement and in residential rehabilitation units by: (i) age; (ii) race; (iii) gender; (iv) mental health treatment level; (v) special health accommodations or needs; (vi) need for and participation in substance use disorder programs; (vii) pregnancy status; (viii) continuous length of stay in residential treatment units as well as length of stay in the past sixty days; (ix) number of days in segregated confinement; (x) a list of all incidents resulting in sanctions of segregated confinement by facility and date of occurrence; (xi) the number of incarcerated persons in segregated confinement by facility; and (xii) the number of incarcerated persons in residential rehabilitation units by facility.