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Adopted Rules: Closed to Comments

Adopted Rules Content: 

NEW YORK CITY DEPARTMENT OF CORRECTION

 

Notice of Adoption of

Chapter 1 of Title 39 of the Rule of the City of New York

 

Notice is hereby given in accordance with Section 1043(f) of the New York City Charter (“Charter”) and pursuant to the authority granted to the Department of Correction (“Department”) by Sections 389 and 623 of the Charter, a notice of public hearing and opportunity to comment on the Department’s proposal to amend Title 39 of the Rules of the City of New York was published in the City Record on May 8, 2019, and a public hearing was held on June 13, 2019.  The Department now adopts the amendments as set forth below.

 

Statement of Basis and Purpose

 

The adopted rules amend the rules of the Department of Correction, codified in Title 39 of the Rules of the City of New York:

  • New provisions are added to the list of Sex Offenses (Section 1-03(c)(23)) in compliance with the federal Prison Rape Elimination Act and federal rules promulgated thereunder, and to conform to amendments made by the Board of Correction to the Board’s rules (Title 40 of the Rules of the City of New York);
  • New offenses are added to the list of offenses under Disrespect of Staff (Section 1‑03(c)(10)) to specifically cover acts of sexual harassment towards staff.

 

The changes to the Rules of Conduct provisions add certain definitions to the list of inmate misbehaviors that constitute disciplinary offenses, in order to account for changes in federal law, and changes in technology; and to conform rules governing hearings to State Commission of Correction rules, including providing for hearing facilitators.

The following is a summary of the new rules.

 

Amendments to Section 1-03(c)(10) add prohibited conduct provisions under Disrespect for Staff to include acts that constitute sexual harassment towards staff

 

These sections create new graduated offenses for inmates who act inappropriately towards staff by engaging in conduct of a sexual nature towards staff. Such conduct includes making sexual advances towards staff, or acting in verbal or nonverbal ways that are sexually derogatory or offensive towards staff, including but not limited to making sexually suggestive remarks, jokes, innuendos, comments, gestures; leering; and displaying sexually explicit material on Department property.

 

Amendments to Section 1-03(c)(23) (Prohibited Conduct, Sexual Offenses)

The amendments to subparagraphs 122.10, 122.11, and 122.13 in Paragraph 23 (Sex Offenses), and the addition of new subparagraph 122.14, are made in part in response to U.S. Department of Justice regulations (Title 28 of the Code of Federal Regulations, §§ 115.5 et seq.) adopting national standards to prevent, detect, and respond to prison rape as required by the Prison Rape Elimination Act (“PREA”) of 2003 (Title 34 of the United States Code, §§ 30302 et seq.).  This section expands and clarifies existing sex offenses by prohibiting, among other things, sexual abuse against another person; kissing, embracing, and hand-holding by inmates; and making sexual advances or verbal comments of a derogatory or offensive nature including but not limited to sexually suggestive remarks, jokes, innuendos, comments, and gestures. 

In addition to the amendments listed above,

 

  • Section 1-03(b), Definitions, is amended to eliminate the numbering of the definitions and to alphabetically insert the following new definitions: “Department ID,” “sexual abuse,” “sexually explicit material,” and “staff.”
  • Section 1-03(c), Prohibited Conduct, is amended to make the following changes:
    • Section 1-03(c)(2), the offense of Assault and Fighting, is amended to add the assault offenses of gang assault and Security Risk Group assault; both shall be Grade I offenses.
    • Section 1-03(c)(4), the offense of Contraband, is amended to put the razor rules all in one location; to add manufactured chemical compounds that are not facility-issued as contraband (e.g., synthetic marijuana); to add types of devices to the prohibition on telecommunication and recording devices; and to clarify  that credit cards, debit cards, and gift cards are contraband.
    • Section 1-03(c)(6), the offense of Creating a Fire, Health or Safety Hazard, is amended to add a prohibition on using food warmers as personal cooking devices.
    • Section 1-03(c)(17), the offense of violating Identification Procedures, is amended to reflect that inmate ID cards have been replaced by other forms of Department identification; to expressly prohibit tampering or destruction of inmate ID; and to provide for the penalty of restitution without reference to a particular cost if inmate ID is tampered with or destroyed.
    • Section 1-03(c)(24), the offense of Smuggling, is amended to add the Grade I offense of smuggling manufactured chemical compounds that are not issued by the Department.
    • Section 1-04, Hearing Procedures, is amended to eliminate the reference to close custody, which is no longer used by the Department; the amendments to protective custody are made to clarify the process for placement.

 

The Adopted Rules

New material is underlined.

Deleted material is [bracketed.]

 

 

  1. Section 1-03(b) of title 39 of the Rules of the City of New York (“RCNY”) (Prohibited Conduct, Definitions) is hereby amended by removing the number before each definition, and inserting the following new definitions alphabetically within the list of definitions:

“Department ID” shall mean any form of Department-issued tag, card, wristband, or other object that serves to identify an inmate.

 

“Sexual abuse” means sexual abuse as defined in the Prison Rape Elimination Act.

 

 “Sexually explicit material” is any printed or displayed material that shows the frontal and or rear nudity of any person, including but not limited to: the fully exposed female breast(s) and/or the genitalia of any gender; sexual excitement; sexual conduct, sexual intercourse; or sadomasochistic abuse.

 

Staff” shall include, but not be limited to, uniformed and civilian Department staff, medical staff, contractors and their employees or volunteers.

 

  1. Section 1-03(c) is amended by the addition of the following text to appear above Paragraph (1):

An inmate who violates a rule listed in any subsection of Section 1-03(c) as a “Grade I” offense shall be guilty of the stated Grade I offense; an inmate who violates a rule listed in any subsection of Section 1-03(c) as a “Grade II” offense shall be guilty of the stated Grade II offense; and an inmate who violates a rule listed in any subsection of Section 1-03(c) as a “Grade III” offense shall be guilty of the stated Grade III offense

  1. Section 1-03(c)(2) of title 39 of RCNY (Prohibited Conduct, Assault and Fighting), is hereby amended by inserting, under the heading “Grade I,” and below subparagraph 101.14, new subparagraphs 101.15 and 101.15.1, to read as follows:

 

101.15:  An inmate is guilty of the Grade I offense of Gang Assault on an inmate when the inmate, while acting in concert with two or more inmates, injures, spits on or throws any object or substance at any other inmate.

 

101.15.1:  An inmate is guilty of the Grade I offense of Security Risk Group Assault when the inmate injures, spits on or throws any object or substance at any other inmate based on either inmate’s Security Risk Group status or motivated by a Security Risk Group related purpose.

 

  1. Section 1-03(c)(4) of title 39 of RCNY (Prohibited Conduct, Contraband), is hereby amended to read in its entirety as follows:

 

         Grade I:

         103.05: Inmates shall not possess any tobacco-related products including, but not limited to, cigarettes, cigars, loose tobacco, chewing tobacco, rolling paper, matches and lighters.

         103.07: Inmates shall not sell, exchange or distribute tobacco-related products including, but not limited to, cigarettes, cigars, loose tobacco, chewing tobacco, matches and lighters.

         103.08: Inmates shall not make, possess, sell or exchange any amount of alcoholic beverage.

         103.10: Inmates shall not make, possess, sell or exchange any type of contraband weapon. Any object that could be used as a weapon may be classified as a weapon.

         103.10.5: Inmates shall not possess or transport a Department-issued razor outside the housing area.

         103.10.6: Inmates shall return all Department-issued razors after shaving is completed, in accordance with Department or facility procedures. Razors shall be returned in the same condition as received; for example, blade and handle shall be intact.

103.10.7: Inmates shall not possess more than one Department-issued razor.

103.11: Inmates shall not make, possess, sell, give or exchange any amount of narcotic, narcotic paraphernalia, or any other controlled substance, or a manufactured chemical compound that is not facility issued.

         103.12: Inmates shall not make, possess, sell, give or exchange any type of escape paraphernalia. Where there is the likelihood that an item can be used to aid an escape, it may be classified as escape paraphernalia. Keys, possession of identification belonging to another person, or fictitious person, transferring an inmate's identification to another, possession of employee clothing, or any other articles which would aid in an escape, or which suggest that an escape is being planned, are contraband.

         103.12.5: Inmates shall not possess any type of electronic telecommunications and/or recording device or instrument or any part of such device or instrument, which is designed to transmit and/or receive telephonic, electronic, digital, cellular or radio communications; [device or any part of such instrument designed to have] record or capture sound and/or [image] images; [recording or capturing capabilities]; or charge the power of any such device or instrument. Such devices shall include, but shall not be limited to, cameras (digital or film), video recorders, [and] tape or digital recording devices, electronic storage devices, phone chargers, battery chargers, A/C adapters, A/C cables, [The term "telecommunication device" shall include, but not be limited to, any type of instrument, device, machine or equipment which is designed to transmit and/or receive telephonic, electronic, digital, cellular or radio signals or communications or any part of such instrument, device, machine or equipment as well as any type of instrument designed to have sound, or image recording abilities and shall include, but not be limited to, a] cellular or digital [phone] phones, [a pager] pagers, [a two-way radio] two-way radios, text messaging devices, or modem equipment or [device] devices. [(including a modem equipment device), a camera, a video recorder and a tape or digital recording device, or any other device that has such capabilities.] (Radios sold in commissary are excluded from this prohibition.)

         103.12.6: Inmates shall not possess any contraband with intent to sell or distribute such contraband.

         103.12.7: [An inmate is guilty of the offense of Possession of Contraband Grade I when such inmate possesses] Inmates shall not possess money whose value exceeds twenty (20) dollars in cash [or], checks, credit cards regardless of the credit available on the card, or debit or gift cards regardless of the value stored on the card. Money confiscated as contraband will be deposited in the City's treasury and will not be returned to the inmate.

         Grade II:

         103.13: Inmates shall not sell or exchange prescription drugs or non-prescription drugs. Inmates shall not possess prescription drugs that they are not authorized by medical staff to possess.

         103.13.5: Inmates shall not possess prescription or non-prescription drugs in quantities in excess of that authorized by medical staff. Inmates are not authorized to possess expired prescription medication or drugs.

         103.13.6: Inmates are not authorized to possess any drug that by prescription, or by medical order, must be ingested in view of Department and/or medical staff.

        [103.13.7: Inmates shall not possess more than one Department-issued razor.]

      103.14: Inmates shall not make, possess, sell, exchange, use or display any item that identifies the inmate as a member or associate of a Security Risk Group [or of a gang]. Articles of religious significance that are Security Risk Group identifiers shall only be considered contraband if they are displayed. Incidental or inadvertent exposure of the item (for example, while showering, saying the rosary or other religious observance, dressing or undressing or sleeping) shall not be considered "display" under this rule.

         103.15: An inmate is guilty of the offense of Possession of Contraband Grade II when such inmate possesses money [not in excess of] having a value of up to and including twenty (20) dollars, [or] in the form of cash or checks [or credit cards]. Money confiscated as contraband will be deposited in the City's treasury and will not be returned to the inmate.

         Grade III:

         103.16: Inmates shall not possess unauthorized hobby materials, art supplies or tattooing equipment, or writing implements.

         103.17: Inmates shall not possess unauthorized amounts of jewelry, clothing, food, or personal property.

         103.18: Inmates shall not possess unauthorized amounts of City-issued property.

         103.19: Inmates shall not possess any other unauthorized items not specifically listed within this section.

  1. Section 1-03(c)(6) of title 39 of RCNY (Prohibited Conduct, Creating a Fire, Health or Safety Hazard), is hereby amended by the addition of a new subparagraph 105.25, to read in its entirety as follows:

 

         105.25:   Inmates shall not use a food warmer as a personal cooking device.

  1. Section 1-03(c)(10) of title 39 of RCNY (Prohibited Conduct, Disrespect for Staff) is hereby amended to read in its entirety as follows:

 

10)    Disrespect for Staff; Sexual Harassment towards Staff

Grade I:

109.10: [Inmates shall not physically resist staff members.] An inmate is guilty of the Grade I offense of Disrespect for Staff if the inmate physically resists a staff member, including by pulling or twisting away.

109.11: [Inmates shall not harass or annoy staff members by touching or rubbing against them.] An inmate is guilty of the Grade I offense of Disrespect for Staff/Sexual Harassment towards Staff if the inmate harasses or annoys a staff member by touching the staff member.

109.11.5: An inmate is guilty of the Grade I offense of Sexual Harassment towards Staff if the inmate engages in unwelcome physical conduct of a sexual nature, including but not limited to: patting, rubbing, kissing, grabbing, pinching or touching of staff.

 

Grade II: 

 

109.12 [Inmates shall not verbally abuse or harass staff members, or make obscene gestures towards any staff members.] An inmate is guilty of the Grade II offense of Disrespect for Staff/Sexual Harassment towards Staff if the inmate verbally abuses or harasses a staff member, or makes obscene gestures towards any staff member.

 

109.13: An inmate is guilty of the Grade II offense of Disrespect for Staff/Sexual Harassment Towards Staff when the inmate, in the plain view of staff, intentionally touches the inmate’s own body with or without exposing the genitals, buttocks or breasts, in a manner that demonstrates it is for the purpose of sexual arousal, gratification, annoyance, or offense, and that any reasonable person would consider this conduct offensive.

 

109.14: An inmate is guilty of the Grade II offense of Disrespect for Staff/Sexual Harassment Toward Staff when the inmate requests, solicits or otherwise encourages a staff member or any other to engage in sexual activity, or makes repeated and unwelcome sexual advances or verbal comments of a derogatory or offensive nature, including but not limited to: sexually suggestive remarks, jokes, innuendos, leering, comments, and gestures.

 

109.15: An inmate is guilty of the Grade II offense of sexual harassment towards staff when the inmate refuses to remove sexually explicit material the inmate has affixed, posted or displayed on Department property after being asked to do so by staff.

 

Grade III: 

 

109.16: An inmate is guilty of the Grade III offense of sexual harassment towards staff when the inmate affixes, posts or displays any sexually explicit material on Department property, including walls, windows, or lighting fixtures.

 

  1. Section 1-03(c)(17) of title 39 of RCNY (Prohibited Conduct, Identification Procedures) is hereby amended to read in its entirety as follows:

 

17)    Identification Procedures

 

Grade III:

 

115.10: Inmates shall carry and display their Department ID [cards clipped onto the outermost garment] at all times when outside their cell or sleeping quarters.

 

115.11: Inmates shall promptly produce their Department ID [cards] at the direction of any staff member.

 

115.12: Inmates shall report the loss of their Department ID [card] promptly to appropriate staff members. Inmates shall be charged restitution [a fee of $6.00] for a new Department ID [identification card with or without a clip. There will be no charge for the clip alone].

 

115.13: Inmates shall not intentionally tamper with or destroy their Department ID.

 

  1. Section 1-03(c)(23) of title 39 of RCNY (Prohibited Conduct, Sexual Offenses) is hereby amended to read in its entirety as follows:

 

23)    Sex Offenses

 

Grade I:

 

122.10: [Inmates shall not force or in any way coerce any person to engage in sexual activities.] An inmate is guilty of a Grade I Sex Offense when the inmate forces, coerces or attempts sexual abuse against another person, or engages in sexual abuse of a person who is unable to consent or refuse.

 

Grade II:

 

122.11: [Inmates shall not voluntarily engage in sexual activity with any other person.] An inmate is guilty of a Grade II Sex Offense when the inmate engages in sexual activity with another inmate. All contact between inmates is prohibited, including kissing, embracing, and hand-holding.

 

122.12: [Inmates shall not expose the private parts of their body in a lewd manner.] An inmate is guilty of a Grade II Sex Offense when the inmate exposes the private parts of the inmate’s body in a lewd manner.

 

Grade III:

 

122.13: [Inmates shall not request, solicit or otherwise encourage any person to engage in sexual activity.] An inmate is guilty of a Grade III Sex Offense when the inmate requests, solicits or otherwise encourages any other inmate to engage in sexual activity, or makes repeated and unwelcome sexual advances or verbal comments of a derogatory or offensive nature, including but not limited to, sexually suggestive remarks, jokes, innuendos, comments, and gestures.

 

122.14: An inmate is guilty of a Grade III Sex Offense when the inmate, in the plain view of any person other than staff, intentionally touches oneself with or without exposing their genitals, buttocks or breasts in a manner that demonstrates it is for the purpose of sexual arousal, gratification, annoyance or offense, and that any reasonable person would consider this conduct offensive.

 

  1. Subparagraph 123.10 of Section 1-03(c)(24) of title 39 of RCNY (Prohibited Conduct, Smuggling) is hereby amended to read as follows:

 

 

123.10: Inmates shall be guilty of Grade I smuggling if, by their own actions or acting in concert with others, they smuggle weapons, drugs or drug-related products, manufactured chemical compounds that are not facility issued, alcohol, tobacco or tobacco-related products, or escape paraphernalia into or out of the facility.

 

 

  1. Section 1-04 of title 39 of RCNY (Hearing Procedures) is hereby amended as follows:

 

§ 1-04 Hearing Procedures

[This section sets forth hearing procedures.]

(a)  General procedures.

(1) When you are placed [against your will] in any of the most restrictive security categories, [including punitive segregation] (other than Pre-Hearing Detention, which is addressed in subsection (b) below), you will be given written notice of:

(i)    The reasons for the designation.

(ii)   The evidence relied upon. The Department is not required to provide you with the source of confidential information.

(iii)  The right to a hearing before an impartial Adjudication Captain appointed from the Adjudication Unit.

(iv)  Your rights at the hearing.

(b) Disciplinary hearing procedures.

(l) Pre-Hearing Detention (PHD). When you are placed in Pre-Hearing Detention (PHD) prior to your disciplinary hearing,

(i) You will be issued a Notice of Pre-Hearing Detention within twenty-four (24) hours of the placement, which will state the reason for the placement in PHD.

(ii) You will have the opportunity to respond to the Notice of Pre-Hearing Detection, verbally, or in writing in a designated space on the Notice form.

(iii)  [the] The infraction hearing will be completed within three (3) business days of your transfer to PHD whenever possible, but you shall not be held in PHD for more than seven (7) business days. If the hearing is not held in such time, you must be released from PHD. [If the infraction hearing cannot be completed within three (3) business days, the Adjudication Captain will assess whether it is likely that a hearing will be completed within another three (3) business days. PHD placement may be extended once for a maximum of another three (3) business days. If the hearing is not completed within that time the Chief of Facility Operations or his/her designee shall determine whether you should be placed in Close Custody.]

(2) Disciplinary Infraction Hearings. If you are not placed in PHD, the infraction hearing will take place within three (3) business days after you receive written notice, unless any further delay is justified in accordance with disciplinary due process [Directive 6500R-B III.C 2. Hearings] Your hearing may be held in absentia (that is, without you present) only [under the following circumstances:] if the following occurs: (i) [You] you are notified of the hearing and refuse to appear; or (ii) [You] you appear and are extremely disruptive, causing a situation[, which] that is unduly hazardous to institutional safety[, and necessitating] that necessitates your removal from the hearing room [thus constituting a constructive refusal to appear. When either of these situations arises] If your hearing is held in absentia, the justification for holding the hearing in absentia shall be clearly documented in the Adjudication Captain's decision.

 (3) At your hearing, you have the following rights:

(i)      To personally appear;

(ii)     To make statements;

(iii)    To present material, relevant, and non-duplicative evidence;

(iv)    To have witnesses testify at the hearing, provided they are reasonably available and [attending] their attendance at the infraction hearing will not be unduly hazardous to the institutional safety of correctional goals.

(v)     If you are non-English speaking, illiterate, blind, deaf, have poor vision, are hard of hearing, or if your case is very complicated, you have a right to be helped by a "hearing facilitator" (not a lawyer). The hearing facilitator shall be designated by the chief administrative officer, or the chief administrative officer’s designee, at least twenty-four (24) hours prior to the hearing. The hearing facilitator may assist you with:

(aa)           Interviewing witnesses;

(bb)          Obtaining evidence and/or written statements;

(cc)           Providing assistance at the disciplinary hearing;

(dd)          Providing assistance understanding administrative segregation decisions;

(ee)           Providing assistance understanding the evidence relied on by the hearing officer and the reasons for action taken;

(ff)           Providing assistance understanding the waiver of any rights; and

(gg)          Providing assistance in filing an appeal.

(vi)       If you do not understand or are not able to communicate in English well enough to conduct the hearing in English, you have a right to an interpreter in addition to a hearing facilitator.

(vii)      You have a right to appeal [an adverse] a decision against you.

(viii)     You have a right to have the hearing recorded.

(c) [Close Custody and Close Custody/Protective Custody] Protective Custody

(1)      If you are transferred to [close custody (CC), including] protective custody [(CC/PC)] (PC), the Department will determine within two (2) business days whether you should continue in such housing.  If you do not consent to a decision to continue [CC or CC/PC] PC placement, you will be provided with written notice as set forth in 39 RCNY §1-04(a) (l).

(2)      The hearing will be held no sooner than 24 hours and no later than three (3) business days after you receive the written notice of your [Close Custody security designation] PC housing placement, unless an adjournment is required or for one of the reasons set forth in Directive [6006R-C III. E. 8] 6007R-A.

(3)      The Adjudication Captain will recommend whether you should remain in [CC or CC/] PC to the [Chief of Facility] Operations Security Intelligence Unit (OSIU) in writing within one (1) business day after the hearing.  You will receive a copy of the decision [of the Chief of Facility Operations or designee] from OSIU.

(4)      If you are placed in [CC or CC/PC] PC the Department will review your [case] placement thirty (30) days after OSIU initially determined the assignment and then every [twenty-eight (28)] sixty (60) days thereafter to see if you should remain in [CC or CC/PC] PC.  You will be notified in writing of the results of that review.

(5)      If you request a hearing you will have the following rights:

i.            To personally appear;

ii.           To be informed of the evidence against you that resulted in the designation, subject to limitations regarding confidential information to protect another person’s safety or facility security;

iii.          The opportunity to make a statement;

iv.          To call witnesses subject to the Adjudication Captain's discretion;

v.           To present evidence;

vi.          The right to a written determination with reasons.

   [(d)   Miscellaneous.

      (1)   If you are illiterate, if your case is very complicated, or a pre-hearing transfer has restricted access to potential witnesses, you have a right to be helped by a "hearing facilitator" (not a lawyer). In hearings other than disciplinary infraction hearings, the Department may in its discretion allow you to have a lawyer present who is willing to represent you.

      (2)   If you do not understand English an interpreter will be provided.

      (3)   The proceedings of the hearing are recorded.]

Effective Date: 
Sat, 08/31/2019

Adopted Rules: Closed to Comments

Adopted Rules Content: 

PLEASE CLICK ON THE  ABOVE ATTACHED PDF TO VIEW THE COMPLETE STATEMENT ON BASIS AND PURPOSE AS WELL AS THE FINAL ADOPTED RULE TEXT

 Statement of Basis and Purpose of Rules

 The rule revisions amend the Health Care Minimum Standards adopted by the Board of Correction (“Board” or “BOC”), set forth in Chapter 3 of Title 40 of the Rules of the City of New York. Specifically, the revisions: 

  • Amend various provisions of Section 3-08 (Privacy and Confidentiality) of the Health Care Minimum Standards; and 
  • Add a new Section 3-16 (Inmate Injury Response) to the Health Care Minimum Standards. 

The New York City Charter mandates that there shall be a Board of Correction, § 626(a), responsible for inspecting and visiting all institutions and facilities under the jurisdiction of DOC. § 626(c)(1). The Board has the “powers and duty” to conduct “evaluation of departmental performance.” § 626(c)(4). Under § 626(e) of the Charter, the Board is authorized to establish minimum standards “for the care, custody, correction, treatment, supervision, and discipline of all persons held or confined under the jurisdiction of” DOC. 

The Board promulgated Health Care Minimum Standards in 1991. These Standards seek to ensure patient care in the jails is consistent with legal requirements, accepted professional and community standards, and sound professional judgment and practice. This includes requiring the protection of confidential private health information of people in DOC’s custody. To that end, these Standards promote the health and safety of people incarcerated in the City’s jails and to further the Board’s mandate under the City Charter.

 

In January 2019, the Board published a report titled “Serious Injury Reports in NYC Jails” (“Serious Injury Report”), which reviewed aggregate data on serious injuries to people in custody over time and summarized BOC staff’s in-depth audit of three months of injury reports and investigations.

[1]

The Injury-to-Inmate form (“Injury Form”) is the primary tool for documenting and investigating both serious and non-serious injuries in the jails. The Injury Form includes a section requiring NYC Health + Hospital’s Correctional Health Services staff (“CHS”) to enter the nature of the injury after CHS has conducted a medical evaluation of the injured person; once CHS enters this information, the Injury Form is transmitted back to DOC to investigate the circumstances of the injury and report its findings on the Form.

 

As noted in the Board’s Report, when serious injuries occur in the jails, their consequences are severe and wide-ranging.

[2]

Serious injuries affect the short and long-term physical and mental health of individuals while incarcerated and can have a compounding negative impact on individuals’ employment, education, housing, and general reintegration into the community.

[3]

The Report further states:

 

The City must understand the rates, types, and circumstances related to serious injuries occurring in NYC jails in order to prevent them. Additionally, accurate reporting is necessary to maintain public accountability and trust in and engagement with government. When implemented, this report’s recommendations will increase prevention of serious injuries to incarcerated people and promote problem-solving and transparency.

[4]

 

The Serious Injury Report details significant inconsistencies and deficiencies in the reporting and investigation of serious injuries by DOC and CHS. The rules seek to: 

(1) expressly allow CHS to share with DOC specific diagnoses related to injuries sustained by people while in DOC custody; and 

(2) address the deficiencies identified in the Serious Injury Report by requiring DOC and CHS to comply with mutual data collection and reporting requirements concerning injuries to people while incarcerated in the City’s jails. 

Following is a descriptive summary of the rules.

 

Major Amendments

 

Section 1-01

Because individuals in DOC custody are people first and the circumstance of their incarceration is not their defining feature, the Board has made a commitment to employ person-first language in its Standards and general communications going forward. To this end, the Board is deleting all references to “Inmates” (with the exception of references to Injury-to-Inmate forms, which are identified by their title) in favor of person-first terms such as “people in custody.”

 

Amendments to Rule § 3-08 (Privacy and Confidentiality)

 

            Section 3-08(b)(2)

To avoid “dual loyalty” issues,

[5]

§ 3-08(b)(2) prohibits health care personnel from conducting body cavity searches or strip searches of people in custody. A proposed amendment to subdivision (b)(2) sought to extend this prohibition to “forensic evaluations for criminal prosecution or investigatory purposes,” with the exception of the Forensic Psychiatric Evaluation Clinics.

[6]

Because the Health Authority’s dual loyalty concerns are broader than the proposed language and can only be fully addressed through further rulemaking, including amendments to other chapters of the Minimum Standards, § 3-08(b)(2) will remain in its current form and no additional language will be added at this time.

 

            Section 3-08(c)(3)

The existing § 3-08(c)(3) enumerates the circumstances under which health care personnel may report a person in custody’s health information to DOC without the person’s written consent. However, the existing § 3-08(c)(3) states that “such information shall not include the specific diagnosis or the entire health record” of the person in custody.

 

In November 2013, the City’s Department of Health and Mental Hygiene (DOHMH) (then the City’s correctional Health Authority) first sought—and the Board approved—a variance from § 3-08(c)(3)’s prohibition on sharing specific diagnoses with DOC. Specifically, the variance permitted CHS to provide DOC with specific diagnoses related only to injuries sustained by persons in correctional custody. The reporting of diagnoses unrelated to an injury remained prohibited, as stated in the variance. The variance was renewed, primarily at six-month intervals, until February 12, 2019.

 

Under the new rule, CHS may explicitly share with DOC “specific diagnoses of injuries sustained by people while in custody … for the limited purpose of investigating injuries” (§ 3-08(c)(3)(ii)(A)), mooting the need for a variance to that effect.

 

Section 3-08(c)(4)

The existing §s 3-08(c)(4) of the current rules prohibits CHS from sharing individual’s disease-specific information with DOC in cases where an individual has a communicable disease, mandating instead that CHS instruct DOC staff generally on proper precautions. Under the new rules, CHS may disclose certain individual communicable disease diagnoses when an exposure has occurred at the facility and it is absolutely necessary for CHS to engage in contact tracing to protect the health and safety of exposed individuals; when such disclosures are made, CHS will be required to inform the Board within 24 hours so that the Board can monitor how often and under what circumstances CHS is disclosing patient-identifying information in this context.

 

            Section 3-08(c)(7)(i)

Existing § 3-08(c)(7)(i) states that when a person in custody is transferred from one correctional facility to another within DOC’s custody, the person’s “complete health record shall be transferred simultaneously.” The amendment revises this requirement to state that the person’s “complete health record shall be maintained and available in each location.” This change is intended to bring the Standards in line with current Electronic Medical Record practices.

 

Proposed Rule § 3-16 (Injury Response)

 

Injury surveillance and data collection are important tools for identifying and protecting vulnerable patients and promoting public health in the jails.

[7]

Proposed Minimum Standard § 3-16 aims to address the inconsistencies and deficiencies identified in BOC’s Serious Injury Report by requiring, among other things, that:

 

(1) DOC and CHS establish policies and procedures to address and prevent injuries to people in custody;

 

(2) DOC’s injury investigations, including all supporting documentation such as Injury Forms, be completed in a prompt, thorough, accurate, and objective manner;

 

(3) DOC and CHS meet on a regular basis to review data on injuries;

 

(4) within one year of the effective date of the rule, DOC and CHS maintain a coordinated electronic tracking system for serious injuries, and within two years of the effective date of the rule, they maintain a coordinated electronic system for serious and non-serious injuries;

 

(5) commencing September 2019 and rolling out in three phases through late 2021,DOC and CHS release a joint, monthly public report of specified data on serious and non-serious injuries to people in custody;

 

(6) on at least an annual basis, DOC review all joint, public, monthly reports for the last year and provide the Board with a written public report of its findings and any corrective actions;

 

(7) commencing September 2019, CHS provide the Board with a monthly public report of specified data on self-harm.

Effective Date: 
Wed, 08/21/2019

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Thursday, June 20, 2019
Proposed Rules Content: 

 

Statement of Basis and Purpose of Proposed Rules 

The proposed rule revisions would amend the Health Care Minimum Standards adopted by the Board of Correction (“Board” or “BOC”), set forth in Chapter 3 of Title 40 of the Rules of the City of New York. Specifically, the revisions would: 

  • Amend various provisions of Section 3-08 (Privacy and Confidentiality) of the Health Care Minimum Standards; and 
  • Add a new Section 3-16 (Inmate Injury Response) to the Health Care Minimum Standards. 

The New York City Charter mandates that there shall be a Board of Correction, § 626(a), responsible for inspecting and visiting all institutions and facilities under the jurisdiction of DOC. § 626(c)(1). The Board has the “powers and duty” to conduct “evaluation of departmental performance.” § 626(c)(4). Under § 626(e) of the Charter, the Board is authorized to establish minimum standards “for the care, custody, correction, treatment, supervision, and discipline of all persons held or confined under the jurisdiction of” DOC. 

The Board promulgated Health Care Minimum Standards in 1991. These Standards seek to ensure patient care in the jails is consistent with legal requirements, accepted professional and community standards, and sound professional judgment and practice. This includes requiring the protection of confidential private health information of people in DOC’s custody. To that end, these Standards promote the health and safety of people incarcerated in the City’s jails and to further the Board’s mandate under the City Charter. 

In January 2019, the Board published a report titled “Serious Injury Reports in NYC Jails” (“Serious Injury Report”), which reviewed aggregate data on serious injuries to people in custody over time and summarized BOC staff’s in-depth audit of three months of injury reports and investigations.(1) The Injury-to-Inmate form (“Injury Form”) is the primary tool for documenting and investigating both serious and non-serious injuries in the jails. The Injury Form includes a section requiring NYC Health + Hospital’s Correctional Health Services staff (“CHS”) to enter the nature of the injury after CHS has conducted a medical evaluation of the injured person; once CHS enters this information, the Injury Form is transmitted back to DOC to investigate the circumstances of the injury and report its findings on the Form. 

As noted in the Board’s Report, when serious injuries occur in the jails, their consequences are severe and wide-ranging.(2) Serious injuries affect the short and long-term physical and mental health of individuals while incarcerated and can have a compounding negative impact on individuals’ employment, education, housing, and general reintegration into the community.(3) The Report further states: 

The City must understand the rates, types, and circumstances related to serious injuries occurring in NYC jails in order to prevent them. Additionally, accurate reporting is necessary to maintain public accountability and trust in and engagement with government. When implemented, this report’s recommendations will increase prevention of serious injuries to incarcerated people and promote problem-solving and transparency.(4) 

 

The Serious Injury Report details significant inconsistencies and deficiencies in the reporting and investigation of serious injuries by DOC and CHS. The proposed rules seek to: 

(1) expressly allow CHS to share with DOC specific diagnoses related to injuries sustained by people while in DOC custody; and 

(2) address the deficiencies identified in the Serious Injury Report by requiring DOC and CHS to comply with mutual data collection and reporting requirements concerning injuries to people while incarcerated in the City’s jails. 

Following is a descriptive summary of the proposed rules. 

Proposed Amendments, Generally

Section 1-01

Because individuals in DOC custody are people first and the circumstance of their incarceration is not their defining feature, the Board has made a commitment to employ person-first language in its Standards and general communications going forward. To this end, the Board proposes deleting all references to “Inmates” (with the exception of references to Injury-to-Inmate forms, which are identified by their title) in favor of person-first terms such as “people in custody.”

Proposed Amendments to Rule § 3-08 (Privacy and Confidentiality) 

            Section 3-08(b)(2)

To avoid “dual loyalty” issues,(5) § 3-08(b)(2) prohibits health care personnel from conducting body cavity searches or strip searches of people in custody. The proposed amendment to subdivision (b)(2) would extend this prohibition to “forensic evaluations for criminal prosecution or investigatory purposes,” with the exception of the Forensic Psychiatric Evaluation Clinics. (6) 

            Section 3-08(c)(3)

Section 3-08(c)(3) enumerates the circumstances under which health care personnel may report a person in custody’s health information to DOC without the person’s written consent. However, § 3-08(c)(3) states that “such information shall not include the specific diagnosis or the entire health record” of the person in custody. 

In November 2013, the City’s Department of Health and Mental Hygiene (DOHMH) (then the City’s correctional Health Authority) first sought—and the Board approved—a variance from § 3-08(c)(3)’s prohibition on sharing specific diagnoses with DOC. Specifically, the variance permitted CHS to provide DOC with specific diagnoses related only to injuries sustained by persons in correctional custody. The reporting of diagnoses unrelated to an injury remained prohibited, as stated in the variance. The variance was renewed, primarily at six-month intervals, until February 12, 2019. 

Under the proposed rule, CHS would explicitly be able to share with DOC “specific diagnoses of injuries sustained by people while in custody … for the limited purpose of investigating injuries” (§ 3-08(c)(3)(ii)(A)), mooting the need for a variance to that effect.

Section 3-08(c)(4)

Section 3-08(c)(4) of the current rules prohibits CHS from sharing individual’s disease-specific information with DOC in cases where an individual has a communicable disease, mandating instead that CHS instruct DOC staff generally on proper precautions. Under the proposed rules, CHS would be able to disclose certain individual communicable disease diagnoses when an exposure has occurred at the facility and it is absolutely necessary for CHS to engage in contact tracing to protect the health and safety of exposed individuals; when such disclosures are made, CHS will be required to inform the Board within 24 hours. 

            Section 3-08(c)(7)(i)

Section 3-08(c)(7)(i) states that when a person in custody is transferred from one correctional facility to another within DOC’s custody, the person’s “complete health record shall be transferred simultaneously.” The proposed amendment revises this requirement to state that the person’s “complete health record shall be maintained and available in each location.” This change is intended to bring the Standards in line with current Electronic Medical Record practices.

Proposed Rule § 3-16 (Injury Response) 

Injury surveillance and data collection are important tools for identifying and protecting vulnerable patients and promoting public health in the jails.(7) Proposed Minimum Standard § 3-16 aims to address the inconsistencies and deficiencies identified in BOC’s Serious Injury Report by requiring, among other things, that: 

(1) DOC and CHS establish policies and procedures to address and prevent injuries to people in custody; 

(2) DOC’s injury investigations, including all supporting documentation such as Injury Forms, be completed in a prompt, thorough, accurate, and objective manner; 

(3) DOC and CHS meet on a regular basis to review data on injuries; 

(4) within one year of the effective date of the rule, DOC and CHS maintain a coordinated electronic tracking system for serious injuries, and within two years of the effective date of the rule, they maintain a coordinated electronic system for serious and non-serious injuries; 

(5) commencing September 2019 and rolling out in three phases through late 2021,DOC and CHS release a joint, monthly public report of specified data on serious and non-serious injuries to people in custody; and 

(6) on at least an annual basis, DOC review all joint, public, monthly reports for the last year and provide the Board with a written public report of its findings and any corrective actions. 

The purpose of these new requirements is to improve DOC’s and CHS’s ability to address and prevent injuries to people in custody and strengthen the Board’s oversight of the agencies’ progress toward achieving this goal.

Authority

The Board’s authority for these rules is found in section 1043 and 626 of the New York City Charter.

1. Serious Injury Report (p. 3); available at:  https://www1.nyc.gov/assets/boc/downloads/pdf/Reports/BOC-Reports/2019.01.07%20-%20BOC%20Serious%20Injury%20Report%20-%20Final.pdf. 

2. Serious Injury Report (p. 3) (Ludwig, Ariel, et al., Injury Surveillance in New York City Jails, 102 Am J Public Health, 1108 (2012), available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3483942/.)

3. Id.

4. Id.

5.  “Dual loyalty is an ethical dilemma commonly encountered by health care professionals caring for persons in custody. Dual loyalty may be defined as clinical role conflict between professional duties to a patient and obligations, express or implied, to the interests of a third party such as an employer, an insurer, or the state.” Pont, Jörg et al., Dual Loyalty in Prison Health Care, 102 Am J Public Health, 475 (2012).

6. In 2018, Health + Hospitals consolidated the management of its four forensic psychiatric evaluation clinics under CHS in an effort to streamline the forensic psychiatric evaluation process and reduce the amount of time persons spend in jail custody awaiting a mental fitness evaluation.

7. Ross MacDonald, et al., Operationalizing a Human Rights Agenda in Correctional Health, 38 SGIM Forum 1, 12 (2015).

 
Subject: 

Amendment of Health Care Minimum Standards (Patient Confidentiality and Injury Reporting Requirements)

Location: 
Spector Hall
22 Reade Street
New York, NY 10007
Contact: 

No contact

Download Copy of Proposed Rule (.pdf): 

Adopted Rules: Closed to Comments

Adopted Rules Content: 

 

Statement of Basis and Purpose

These rule revisions amend the Minimum Standards adopted by the Board of Correction (“the Board”) relating to correctional facilities, set forth in Chapters 1 and 2 of Title 40 of the Rules of the City of New York. Their purpose is to address the dramatic increase in serious inmate violence in New York City jails. Although such violence has many causes, the Department of Correction (“the Department”) has specifically identified as significant contributing factors gang-related activity and the ready availability of small, concealable blades. Further, the Department has determined that a relatively small number of inmates are disproportionately involved in these violent incidents. The rule amendments described here seek to address these serious concerns and provide the Department with the means to reasonably control the activities of its most violent inmates. Concurrently, they seek to ensure that the rights of inmates are not unduly burdened and aim to promote both rehabilitation and humane conditions in New York City jails. To those ends, the rule amendments provide for the creation of “enhanced supervision housing” (ESH) units, specify the Minimum Standards that are applicable and inapplicable in such units, and provide for procedural safeguards to protect the rights of inmates assigned to ESH. They also place certain limitations on the use of punitive segregation in Department facilities.

The purpose of ESH is to house inmates posing the most direct security threats, a category that the rule limits to inmates who have: (1) been identified as leaders of gangs and have participated in dangerous gang-related activity; (2) organized or participated in gang-related assaults; (3) committed slashings or stabbings or who have committed repeated assaults, have seriously injured another, or have rioted or actively participated in inmate disturbances while in Department custody or otherwise incarcerated; (4) been found in possession of scalpels or weapons that pose a level of danger similar to or greater than that of a scalpels while in Department custody or otherwise incarcerated; (5) engaged in serious or persistent violence; or (6) while in Department custody or otherwise incarcerated, engaged in repeated activity or behavior presenting great danger, and such activity or behavior has a direct, identifiable and adverse impact on the safety and security of the facility. Where the Department is permitted to consider an inmate’s activity occurring or actions committed at a time when the inmate was incarcerated, the rule revisions require that such activity or actions have occurred within the preceding five years; but where the Department is permitted to consider an inmate’s activity occurring or actions committed at a time when the inmate was not incarcerated, such activity or actions must have occurred within the preceding two years.

Due to the unique characteristics of the inmate population assigned to ESH, which consists of some of the Department’s most dangerous inmates, the rule revisions provide for an increased level of supervision and control in order to ensure the safety and security of inmates and staff. This may include various restrictions on time spent out of cells and in group settings, such as the law library, and allows for increased monitoring of non-privileged correspondence. However, the rule limits the restrictions placed on an inmate in ESH to those tailored to the specific security or safety threat posed by that individual inmate.

While the Board recognizes the great importance of these safety and security objectives, it further recognizes that ESH must pursue the parallel objective of promoting rehabilitation, good behavior, and the psychological and physical well-being of inmates. To that end, the rule amendments require that correction officers assigned to ESH complete forty hours of special training tailored to ESH’s unique conditions and inmate population. They further require the Department to provide ESH inmates with programming aimed at facilitating rehabilitation, addressing root causes of violence, and minimizing idleness.

At the same time, these amendments revise standards applicable to punitive segregation in order to improve the effectiveness and safety of such housing. The Board believes that punitive segregation, which addresses particular infractions committed by an inmate, should be limited in certain circumstances where it does not accomplish, or very imperfectly accomplishes, its deterrent purpose. Punitive segregation fails to send a clear deterrent message when it is imposed on an inmate not for an infraction committed by that inmate in his or her present incarceration, but for an infraction committed in a previous incarceration, when the inmate was sentenced to punitive segregation but did not serve, or did not fully serve, that sentence. Punitive segregation for “time owed” from a previous incarceration is often perceived as fundamentally unfair and therefore does not achieve its intended purpose. For these reasons, the rule amendments prohibit the use of punitive segregation for inmates with “time owed” in punitive segregation from previous sentences. In addition, no inmate may be sentenced to punitive segregation for more than thirty days for any single infraction, and no inmate may be held in punitive segregation longer than thirty consecutive days.   

For both punitive segregation and the new enhanced supervision housing unit, the board recognizes that such housing presents a serious and unacceptable threat to the physical and mental health of certain categories of inmates, namely inmates of certain ages and those who suffer from serious physical or serious mental disabilities or conditions. For these reasons, the rule amendments prohibit inmates under the age of 18 and, as of January 1, 2016, and provided that sufficient resources are made available to the Department for necessary staffing and implementation of necessary alternative programming, inmates aged 18 to 21 from being sentenced to punitive segregation or assigned to enhanced supervision housing. Additionally, inmates with serious mental or serious physical disabilities or conditions may not be placed in enhanced supervision housing or punitive segregation. Notably, section 8-102 of Title 8 of the Administrative Code of the City of New York defines disability broadly. The Board has declined to set forth a list of disabilities and conditions, mental or physical, the diagnosis of which would trigger an inmate’s automatic exclusion from punitive segregation and enhanced supervision housing. Rather, the Board vests in the health and mental health service the power to determine, on an individual basis, whether an inmate’s disability or condition requires exclusion.

Set forth below is a section-by-section description of the rule amendments.

Section 1-02 (“Classification of Prisoners”)

This revision amends subdivisions (b) and (d) and adds a new subdivision (c) in order to modify the categories of inmates who must be housed separately and apart from one another, creating separate categories for male and female inmates ages 18 through 21. The revision further provides that housing for inmates ages 18 through 21 must provide age-appropriate programming, and requires the Department to report on its efforts to develop such programming. The revision is intended to reduce violence by segregating developmentally distinct age groups, provide age-appropriate rehabilitative opportunities, and conform the Board’s Minimum Standards with the requirements of New York State law and the federal Prison Rape Elimination Act (PREA).

Section 1-05 (“Involuntary lock-in”)

This revision amends paragraph (2) of subdivision (b) to provide that inmates confined to ESH may be locked in during the day for up to nine hours in any 24-hour period, in contrast with the two-hour limit applicable to other inmates. The revision would allow for the creation of schedules providing that no more than half of the inmates assigned to a given housing area would be permitted to enter the day room at any given time. The purpose of this revision is to enhance control of the inmate population assigned to ESH without unduly burdening the opportunity to engage in recreation or allowing for disproportionately extended periods of lock-in.
Section 1-08 (“Access to Courts and Legal Services”)

This revision amends paragraph (6) of subdivision (f) to allow for limits on library hours for inmates housed in ESH, provided that an alternative method of access to legal materials is instituted to permit effective legal research. The revision is intended to aid the Department’s efforts to control and prevent gang communications that may occur in the library setting and to minimize opportunities for negative inmate encounters.

Section 1-09 (“Visiting”)

This revision amends subdivision (f) in order to allow greater control over visits with inmates assigned to ESH by providing for the limitation of contact visits, while additionally ensuring that such restrictions are only imposed when needed to address a specific safety or security concern.

Section 1-11 (“Correspondence”)

This revision amends subparagraphs (ii) and (iii) of paragraph (6) of subdivision (c), as well as clauses (ii) and (iii) of subparagraph (a) of paragraph (1) of subdivision (2), to allow for increased monitoring of non-privileged correspondence sent to inmates assigned to ESH.

Section 1-16 (“Enhanced Supervision Housing”)

This revision adds a new section authorizing and specifying the limits on the assignment of inmates to ESH and further sets forth the procedural rights of inmates recommended for ESH assignment. ESH assignments are limited to those inmates who have: (1) been identified as leaders of gangs and who have actively participated in the organization of dangerous gang-related activity; (2) organized or participated in gang-related assaults; (3) committed slashings or stabbings or who have committed repeated assaults, have seriously injured another while in Department custody or otherwise incarcerated, or have rioted or actively participated in inmate disturbances; (4) been found in possession of scalpels or weapons that pose a level of danger similar to or greater than that of scalpels while in Department custody or otherwise incarcerated; (5) inmates who have engaged in serious or persistent violence; or (6) while in Department custody or otherwise incarcerated, engaged in repeated activity or behavior presenting great danger, and such activity or behavior has a direct, identifiable and adverse impact on the safety and security of the facility. Where the Department is permitted to consider an inmate’s activity occurring or actions committed at a time when the inmate was incarcerated, such activity or actions must have occurred within the preceding five years; but where the Department is permitted to consider an inmate’s activity occurring or actions committed at a time when the inmate was not incarcerated, such activity or actions must have occurred within the preceding two years. However, placement in ESH is not permitted for inmates under the age of 18, inmates with serious mental or serious physical disabilities or conditions, and, as of January 1, 2016, and provided that sufficient resources are made available to the Department for necessary staffing and implementation of necessary alternative programming, inmates aged 18 to 21 . Restrictions placed on an inmate assigned to ESH must be limited to those required to address the specific safety and security threat posed by that inmate. In addition, officers assigned to ESH must be provided with special training, and a certain number of such assignments must be permanent. The new section also requires that determinations of ESH placement include meaningful notice, including a statement of the grounds relied on to assign each inmate to ESH and the restrictions that will apply to the inmate in ESH, and informing the inmate of the right to submit a written response. The Department is further required, within three days of each ESH placement, to hold a placement review hearing, conducted by a hearing officer who did not participate in the placement decision, to determine whether the placement is warranted. If it is decided, at any time other than initial placement in ESH, to limit an ESH inmate’s access to contact visits, a separate pre-deprivation hearing must be held. Each ESH placement must be reviewed every 45 days to determine whether it is still warranted. In addition, the Department is required, every 60 days, to provide the Board with specified information relating to the implementation of ESH.

Section 1-17 (“Limitations on the Use of Punitive Segregation”)

This revision adds a new section which, among other things, excludes from punitive segregation  inmates under the age of 18, inmates with serious mental or serious physical disabilities or conditions, and, as of January 1, 2016, and provided that sufficient resources are made available to the Department for necessary staffing and implementation of necessary alternative programming,  inmates aged 18 to 21. An inmate excluded from punitive segregation for any of these reasons at the time of an infraction may not be placed in punitive segregation at a later date for the same infraction, even if the inmate’s age or health status have since changed. An inmate placed in punitive segregation must be afforded a hearing, upon notice, at which the Department has the burden of showing, by a preponderance of the evidence, that the inmate is guilty of the infraction which is the basis for placement in punitive segregation. This revision also establishes time limits on the placement of an inmate in punitive segregation and on cumulative placements of the same inmate in punitive segregation. Further, the revision prevents an inmate who is admitted to a Department facility from serving time in punitive segregation for “time owed” in punitive segregation from a separate and previous incarceration. In addition, the Department is required, every 60 days, to provide the Board with specified information relating to punitive segregation.

Section 2-08 (“Coordination”)

This revision amends paragraph (2) of subdivision (b) to make clear that, as in the case of ESH, medical staff may determine that an inmate shall not be placed in punitive segregation at any time before or during such placement.

The Board is authorized to adopt these rule revisions by sections 626(e) and 1043(a) of the New York City Charter.

Effective Date: 
Sat, 02/21/2015

Proposed Rules: Closed to Comments (View Public Comments Received:4)

Agency:
Comment By: 
Friday, December 19, 2014
Proposed Rules Content: 

 

Statement of Basis and Purpose 

These proposed rule revisions would amend the Minimum Standards adopted by the Board of Correction (“the Board”) relating to correctional facilities, set forth in Chapter 1 of Title 40 of the Rules of the City of New York. The purpose of the proposed revisions is to address the dramatic increase in serious inmate violence in New York City jails. Although such violence has many root causes, the Department of Correction (“the Department”) has specifically identified as significant contributing factors gang-related activity and the ready availability of small, concealable blades. Further, the Department has determined that a relatively small number of inmates are disproportionately involved in these violent incidents. The proposed rule amendments described here seek to address these serious concerns and provide the Department with the tools it needs to reasonably control the activities of its most violent inmates. Concurrently, they seek to ensure that the rights of inmates are not unduly burdened and aim to promote humane conditions in New York City jails. To those ends, the proposed rule amendments provide for the creation of “enhanced supervision housing” (ESH) units, specify the Minimum Standards that would be applicable and inapplicable in such units, and provide for procedural safeguards to protect the rights of inmates assigned to ESH. They also place certain limitations on the use of punitive segregation in Department facilities.

The purpose of ESH would be to house inmates posing the most direct security threats, a category that the proposed rule amendments limit to: (1) inmates identified as leaders of, organizers of, or participants in gangs or substantially similar groups; (2) inmates who have committed slashings or stabbings or found in possession of scalpels or scalpel-like weapons; (3) inmates who have committed repeated assaults or have seriously injured another while in custody ; (4) inmates who have engaged in serious or persistent violence or have instigated or participated in a riot while in custody; and (5) inmates who otherwise presents a significant threat to the safety and security of the facility if housed in general population housing. ESH would not be permitted for adolescents -- that is, with respect to the Department’s facilities, those who are 16 and 17 years old – who constitute a particularly vulnerable part of the prison population. Assignment to ESH would activate procedures requiring notice in each case and, upon the inmate’s request, a hearing.

Due to the unique characteristics of the inmate population assigned to ESH, which would consist of some of the Department’s most dangerous inmates, the proposed rule revisions would further provide for an increased level of supervision and control in order to ensure the safety and security of inmates and staff. This would include various restrictions on time spent out of cells and in group settings, such as the law library and religious services, and would allow for increased monitoring of non-privileged correspondence. In order to prevent inmates assigned to ESH from obtaining concealed weapons, the proposed rules would place certain restrictions on the receipt of packages and on contact visits, which would be limited to an approved list of visitors. However, the proposed rules seek to balance such restrictions with the rights of inmates and are tailored to the purpose of protecting inmates and staff, rather than punishment for particular infractions.

At the same time, the Board believes that punitive segregation, which does address particular infractions committed by an inmate, should be limited in certain circumstances where it does not accomplish, or very imperfectly accomplishes, its deterrent purpose. In particular, punitive segregation presents a serious and unacceptable threat to the physical and mental health of inmates who are adolescents. Furthermore, punitive segregation fails to send a clear deterrent message when it is imposed on an inmate not for an infraction committed by an inmate in his or her present incarceration, but for an infraction committed by the same inmate in a previous incarceration, when the inmate was sentenced to punitive segregation but did not serve, or did not fully serve, that sentence. Punitive segregation for “time owed” from a previous incarceration is often perceived as fundamentally unfair, and therefore does not achieve its intended purpose.  For these reasons, the proposed amendments would not allow the use of punitive segregation for inmates who are adolescents after January 1, 2015 or for inmates with “time owed” in punitive segregation from a previous sentence who are admitted to a Department facility after the creation of EHS. Inmates admitted before then to a department facility may have such “time owed” reduced or eliminated if the Department determines that this is warranted  in view of the offense for which they were sentenced to punitive segregation during a previous sentence.

Set forth below is a section-by-section description of the proposed rule amendments.

Section 1-05 (“Involuntary lock-in”)

This proposed revision would amend paragraph (2) of subdivision (b) to provide that inmates confined to EHS may be locked in during the day for up to nine hours in any 24-hour period, in contrast with the two-hour limit applicable to other inmates. The proposed revision would allow for the creation of schedules such that no more than half of the inmates assigned to a given housing area would be permitted to enter the day room at any given time. The purpose of this revision is to enhance control of the inmate population assigned to ESH without unduly burdening the opportunity to engage in recreation or allowing for disproportionately extended periods of lock-in.

Section 1-06 (“Recreation”)

This proposed revision would amend subdivision (g) to allow for increased restriction on the recreation of inmates assigned to ESH. These changes would be the same as restrictions already in place for inmates housed in punitive segregation. 

Section 1-07 (“Religion”)

This proposed revision would amend subdivision (h) to allow for inmates assigned to ESH to participate in religious services offered “with appropriate security either with each other or with other prisoners.” The proposed amendment is intended to aid the Department’s efforts to control and prevent gang communication in group settings and to minimize opportunities for negative inmate encounters. 

Section 1-08 (“Access to Courts and Legal Services”)

This proposed revision would amend paragraph (6) of subdivision (f) to allow for limits on library hours for inmates housed in EHS, provided that an alternative method of access to legal materials is instituted to permit effective legal research. The proposed revision is intended to aid the Department’s efforts to control and prevent gang communications that may occur in the library setting and to minimize opportunities for negative inmate encounters. 

Section 1-09 (“Visiting”)

This proposed revision would amend paragraph (1) of subdivision (e) and subdivision (f) in order to allow for greater control of visits with inmates assigned to ESH. The Department would be permitted to limit visits to those on an approved list of visitors in order to prevent the transfer of gang communications or contraband. Further, the proposed revision to subdivision (f) would allow for greater limitations on contact visits in particular. 

Section 1-11 (“Correspondence”)

This proposed revision would amend subparagraphs (ii) and (iii) of paragraph (6) of subdivision (c), as well as clauses (ii) and (iii) of subparagraph (a) of paragraph (1) of subdivision (2) to allow for increased monitoring of non-privileged correspondence sent to inmates assigned to ESH. 

Section 1-12 (“ESH Packages”)

This proposed revision would amend subdivision (a) to implement restrictions on the contents of incoming ESH packages in order to prevent the introduction into the facility of contraband from outside sources. 

Section 1-13 (“Publications”)

This proposed revision would amend subdivision (a) to allow limitations to be placed on the sources from which inmates assigned to ESH may order publications. The proposed change is also aimed at decreasing the opportunity for contraband to be introduced into the facilities. 

Section 1-16 (“Enhanced Supervision Housing”)

This proposed revision would add a new section outlining the limits on the assignment of inmates to ESH and requiring that the inmates be afforded an opportunity to respond when the Department makes such assignments. EHS assignments would be limited to: (1) inmates identified as leaders of, organizers of, or participants in gangs or substantially similar groups; (2) inmates who have committed slashings or stabbings or found in possession of scalpels or scalpel-like weapons; and (3) inmates who have committed repeated assaults or have seriously injured another while in custody; (4) inmates who have engaged in serious or persistent violence or have instigated or participated in a riot while in custody; and (5) inmates who otherwise presents a significant threat to the safety and security of the facility if housed in general population housing. ESH would not be permitted for adolescents. The proposed new section would additionally require that determinations of ESH placement include meaningful notice (consisting of the grounds relied on to assign each inmate to ESH) and informing the inmate of rights to submit a written response or request an in-person hearing to review the determination. Further, the proposed new section would provide that an in-person hearing be held if requested and that it consist of a review of the facts on which the Department relied in making the ESH assignment and a determination of whether such facts support that assignment. 

Section 1-17 (“Limitations on the Use of Punitive Segregation”)

This proposed revision would add a new section which would prevent adolescents, defined as inmates who are 16 or 17 years old, from serving time in punitive segregation after January 1, 2015. Further, it would prevent an inmate who is admitted to a Department facility after the creation of EHS from serving time in punitive segregation for “time owed” in punitive segregation from a separate and previous incarceration. The Department would submit to the Board certain reports and timelines relating to changes in punitive segregation.

Subject: 

Public hearing on proposed rule which considers the establishment of a new form of inmate housing, known as enhanced supervision housing, for certain inmates in the custody of the Department of Correction.

Location: 
125 Worth St Third Floor
New York, NY 10007
Contact: 

Amanda Masters
AMasters@boc.nyc.gov
212-788-7860

Download Copy of Proposed Rule (.pdf):