§ 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.

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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.

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 such incarcerated individual 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.

(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 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.

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.