S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3196
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 2, 2023
                                ___________
 
 Introduced  by M. of A. SIMPSON, MILLER, MANKTELOW, McDONOUGH, K. BROWN,
   DeSTEFANO, DURSO,  PALMESANO,  ANGELINO,  MIKULIN,  GANDOLFO,  HAWLEY,
   NORRIS -- 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 REPEALED.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;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD06735-01-3
              

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   § 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
 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
 A. 3196                             3

 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-
 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-
 A. 3196                             4
 
 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.
   (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.
 A. 3196                             5
 
   [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 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 amended by chapter 486 of the laws of 2022, 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 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.
   § 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.
 A. 3196                             6
 
   (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 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.]
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   § 11. Subdivision  4  of  section  401-a  of  the  correction  law  is
 REPEALED.
   § 12. Subdivision 18 of section 45 of the correction law is REPEALED.
   §  13.  Section  500-k of the correction law, as separately amended by
 chapters 93 and 322 of the laws of 2021 and subdivision 2 as amended  by
 chapter 486 of the laws of 2022, 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 incarcerated individuals or fewer.]
   § 14. This act shall take effect immediately.