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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 of the Rules

 

Under § 626(e) of the New York City Charter, the Board of Correction (“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” the New York City Department of Correction (“Department”). Pursuant to this authority, the Board has created a new chapter of its rules containing Minimum Standards that are designed to detect, prevent and respond to sexual abuse and sexual harassment of persons incarcerated in jails and other facilities operated by the Department.

 

In April 2015, the New York City Public Advocate Letitia James petitioned the Board to adopt rules consistent with national standards that the Department of Justice (“DOJ”) had promulgated pursuant to the Prison Rape Elimination Act of 2003 (“PREA”), 42 U.S.C. § 15601, et seq., in response to the epidemic of sexual violence in the nation’s prisons and jails.  The Board accepted the petition at its June 9, 2015 meeting, and after several months of fact-finding by the Board’s ad hoc PREA Committee, developed proposed rules which incorporate in whole or in part many elements of the national standards (“PREA Standards”). 

 

The Board received written comments on the proposed rules from over 60 organizations, and over 60 individuals, and two New York City Council Members. In addition, 31 people spoke at the July 26, 2016 public hearing, including representatives of the Public Advocate and the Department. Thereafter the Board’s ad hoc PREA Committee reviewed all of the comments and made some revisions to the rules.

In recognition of the unique characteristics of individual correctional agencies, facilities and inmate populations nationwide, the PREA Standards afford discretion and flexibility to agencies in combating sexual violence. Consistent with this approach, the rules require action that is specifically tailored to detecting, preventing and responding to sexual abuse and sexual harassment in the New York City jails, including specific provisions proposed by the Public Advocate and other stakeholders. The rules do not incorporate certain sections of the PREA Standards that the Board concluded were not applicable to the Department or, in several instances noted below, not appropriate to apply to the Department.

 

The rules also contain provisions that will enable the Board to assess the Department’s compliance with them. These provisions require, for example, that the Department provide the Board with written directives or policies effectuating certain elements of the rules, periodic progress reports — particularly with respect to provisions that require an extended period of time to implement — and semiannual reporting of incident data that will allow the Board to track sexual abuse allegations and outcomes. 

 

The rules are embodied in a new chapter of the Board’s Minimum Standards, which is divided into subchapters that correspond to the subject matter categories into which the PREA Standards are grouped. Additionally, each rule that is modeled on a PREA Standard is denoted by the name of the PREA Standard section heading on which it is based.

 

Following is a descriptive summary of the rules, including revisions that were made following the public hearing on July 26, 2016.  

 

The Rules

 

Subchapter A: Definitions §§ 5-01 and 5-02

Rule § 5-01(“General Definitions”) sets forth definitions of terms used throughout Chapter 5 and is derived in part from PREA Standard § 115.5. 

 

Rule § 5-02 (“Definitions related to sexual abuse”) adopts the definitions of “sexual abuse” and “sexual harassment” in PREA Standard § 115.6.

 

Subchapter B: Prevention Planning §§ 5-03 – 5-09

 

Prevention planning is key to eliminating or reducing sexual violence in correctional settings. Subchapter B of the rules, which incorporates PREA Standards § 115.11 and §§ 115.13 - 115.18, mandates implementation of the prevention measures described below. 

 

Zero Tolerance Policy; Appointment of PREA Coordinator (§ 5-03)

 

Rule § 5-03 requires the Department to have a written policy mandating “zero tolerance toward all forms of sexual abuse and sexual harassment,” and requires the Department to designate a PREA coordinator and each facility to designate a PREA compliance manager with sufficient time and authority to coordinate compliance efforts. This rule incorporates PREA Standard § 115.11.  

 

Staffing Plans (§ 5-04(a)-(f))

 

Rule § 5-04 requires, among other things, each Department facility to develop and document a staffing plan, taking into account a set of specified factors, that provides for adequate levels of staffing, and video monitoring where applicable, to protect inmates against sexual abuse. The rule also requires all facilities to annually assess, determine, and document whether adjustments are needed to the staffing levels or deployment of monitoring technologies. Rule § 5-04 further requires that the Department ensure that each of its facilities develops, documents and makes its best efforts to comply with a staffing plan by January 31, 2018 (§ 5-04(a)). During the period of time leading up to this implementation date, § 5-04(c) requires the Department to provide semiannual written reports to the Board of its progress toward ensuring system-wide implementation of this rule. 

 

Rule 5-04 incorporates PREA Standard § 115.13, but also adds reporting requirements so that the Board can track the Department’s progress in the development and implementation of facility staffing plans, including any deviations or adjustments thereto (§ 5-04(c), (d) and (f)).

 

Video Surveillance (§ 5-04 (g), (h), (i) and (l))

 

Rule § 5-04 also addresses the vital importance of video camera surveillance in preventing and responding to sexual abuse. In response to comments on the proposed rule, a new subdivision (g) has been added to the rule, which provides that by July 31, 2017, the Department shall institute a one-year pilot program to install video surveillance cameras in Department vehicles used to transport inmates. By September 1, 2018, the Department shall provide a written report to the Board evaluating the results of the pilot, including any benefits or challenges associated with the installation of cameras in inmate transport vehicles (§ 5-04(g)).

 

Subdivisions (h) and (i) of the rule require the Department to address the potential need for additional camera installation after the Nunez Agreement ends.  Section 5-04(h) provides that after termination of the Agreement, the Department must provide the Board with the Department’s surveillance camera installation protocol, which must be designed to ensure that, to the extent necessary and feasible, additional surveillance cameras will be installed. For assessment purposes, the Department must also provide annually a written report to the Board of actions taken pursuant to this protocol.

 

After the Nunez Agreement terminates, section 5-04(i) requires the Department to provide the Board with its surveillance camera maintenance protocol, which must be designed to ensure that all surveillance cameras are maintained to function properly and any required repairs are timely made. The Department must provide annually a written report to the Board of action taken pursuant to this protocol.

 

To ensure that video footage of sexual abuse incidents is preserved for investigative and prosecutorial purposes, § 5-04(j) provides that when the Department is notified of a sexual abuse incident within 90 days of the incident, video capturing the incident will be preserved until the longer of two specified time periods has elapsed.

 

Monitoring Rounds (§ 5-04 (k) and (l))

 

Rule § 5-04(k), which incorporates PREA Standard § 115.13(d), requires that supervisors conduct and document unannounced rounds to identify and deter staff sexual abuse and sexual harassment. Certain language was added to subdivision (k) of the proposed rule; namely, that monitoring rounds must be conducted at “unpredictable and varied times,” and the Department must issue a written directive to staff regarding these rounds and provide this directive to the Board. 

 

A subdivision (l) was added to the proposed rule, which states that the Department must have a written policy requiring it to consider whether it is feasible to place a surveillance camera in an area where sexual abuse is repeatedly alleged to have occurred or to consider alternative preventive measures, such as increased monitoring rounds or the assignment of additional Department staff in that area. 

 

Youthful Inmates (§ 5-05)

 

Rule § 5-05, which incorporates PREA Standard § 115.14, prohibits placement of adolescent inmates (under the age of 18) with adult inmates (ages 18 or older) in housing units in which the adolescents would have “sight, sound or physical contact” with adult inmates through use of a shared common space, shower area or sleeping quarters (§ 5-05(a)).

 

Section 5-05 also requires “sight and sound separation” between adolescents and adults in areas outside of housing units unless there is “direct staff supervision”  (§ 5-05(b)).  

 

Limits to cross-gender viewing and searches (§ 5-06)

 

Rule § 5-06 incorporates PREA Standard § 115.15. In addition, text was added to § 5-06(f), as was a subdivision (h), before the proposed rules were published. 

 

Subdivisions 5-06(a) and (b) generally prohibit cross-gender strip searches (and pat-down searches of female inmates by male officers), except in exigent circumstances. Subdivision (d) of the rule requires implementation of policies and procedures to protect inmates from being viewed by correctional staff of the opposite gender when showering, performing bodily functions or changing clothing. 

 

Subdivision (e) prohibits the Department from searching or physically examining a transgender or intersex inmate solely to determine the inmate’s genital status, while subdivision (f) requires the Department to train security staff in how to conduct cross-gender pat-down searches, and searches of transgender and intersex inmates, in a professional and respectful manner, and in the least intrusive manner possible consistent with security needs.

 

In recognition of the fact that transgender individuals are among those with the highest rates of sexual victimization while incarcerated,  the Board added a provision to proposed § 5-06(f) requiring the Department, when conducting searches of transgender and intersex inmates, to “make its best efforts to treat transgender and intersex inmates in accordance with their gender identity” unless exigent circumstances require otherwise. 

 

The Board also added a requirement to the proposed rule that the Department issue a directive to staff incorporating the provisions of § 5-06 and provide this directive to the Board (§ 5-06(g)).

 

 

 

 

Inmates with Disabilities and Inmates Who Are Limited English Proficient (§ 5-07)

 

Rule § 5-07, which incorporates PREA Standard § 115.16, requires the Department to take appropriate steps to ensure that inmates with disabilities or other limitations or who are limited English proficient have an equal opportunity to participate in or benefit from all of the Department’s efforts to prevent, detect and respond to sexual abuse and sexual harassment.

 

Hiring and Promotion Decisions (§ 5-08)

 

Rule § 5-08 incorporates PREA Standard § 115.17 for the Department, and for CHA  where legally permissible. This section:

 

•Prohibits the Department from hiring or promoting anyone who may have contact with inmates who has engaged in sexual abuse in an institutional setting, has been convicted of engaging in sexual activity in the community facilitated by force, the threat of force, or coercion, or who has been civilly or administratively adjudicated to have engaged in such activity (§ 5-08(a); PREA Standard § 115.17(a)(1)-(3)).

 

•Requires the Department to consider any incidents of sexual harassment in determining whether to hire or promote anyone who may have contact with inmates (§ 5-08(b); PREA Standard § 115.17(b)).  

 

•Requires the Department to either conduct criminal background records checks at least every five years of current employees, contractors and volunteers who may have contact with inmates or have in place a system for otherwise capturing such information for current employees (§ 5-08(d) and (e); PREA Standard § 115.17(d) and (e)). Section 5-08(e) also makes CHA subject to this requirement.

 

•Requires that the Department and CHA, unless they are prohibited by law, provide information on substantiated allegations of sexual abuse or sexual harassment involving a former employee upon receiving a request from an institutional employer for whom such employee has applied to work (§ 5-08(i); PREA Standard § 115.17(c)(2)). 

 

Upgrades to Facilities and Technologies (§ 5-09)

 

Rule § 5-09, which incorporates PREA Standard § 115.18, requires the Department to take into account the effect of any changes on efforts to combat sexual abuse when designing or expanding facilities and when installing or updating video monitoring systems or other monitoring technology.

 

Subchapter C: Responsive Planning §§ 5-10 and 5-11

 

Subchapter C includes rules designed to ensure that any physical evidence of sexual abuse is immediately preserved and collected and that victims are afforded rape crisis counseling.

 

Evidence Protocol and Forensic Medical Examinations (§ 5-10)

 

Rule § 5-10(a)-(c), which incorporates PREA Standard § 115.21(a)-(c), requires the Department to, among other things:

 

•Follow a uniform evidence protocol that “maximizes the potential for obtaining usable physical evidence for administrative proceedings and criminal prosecutions” (§ 5-10(a), (b)); and

 

•Offer all victims of sexual abuse access to forensic medical examinations, whether on-site or at an outside facility, without cost, where evidentiarily or medically appropriate. Such examinations shall be performed by Sexual Assault Forensic Examiners or Sexual Assault Nurse Examiners where possible (§ 5-10(c)).

 

In crafting the final version of PREA Standard § 115.21, DOJ recognized the unique role of rape crisis center advocates in supporting victims throughout the forensic medical examination and investigatory interviews, especially given that inmate victims may be reluctant to confide in correctional agency staff due to real or perceived bias and fear of retaliation.  For this reason, 

§ 115.21(d) requires correctional agencies to attempt to make available to victims a victim advocate from a rape crisis center.

 

The consensus among the Public Advocate and other stakeholders with whom the PREA Committee discussed this issue is that the delivery of rape crisis intervention and counseling services to inmates in the facilities in which they are housed (referred to below as the “Initiative”) is the most effective way of ensuring that victims of sexual abuse obtain the emotional support they need to proceed with forensic examinations and investigatory interviews that are key to successful criminal prosecutions and/or administrative proceedings. These services are also essential in helping inmates overcome the trauma of having been sexually abused. 

 

In response to comments received on proposed § 5-10, the rule has been revised to state that these services shall be “offered and delivered to inmates in the facility in which they are housed, and “CHA shall be responsible for the delivery of such services by qualified victim advocates” (§ 5-10(d)). Thus, Department employees will not be involved in providing these services. In addition, in response to comments on the proposed rule, a new subdivision (g) has been added, which provides that such services shall be offered as soon as possible after an incident of alleged sexual abuse is reported, but in no event later than one week after the report is received by the Department or CHA.

 

Rule § 5-10’s other requirements include:

 

•Subject to the requirements of § 5-21(d), victim advocates shall assure inmates who request these services that all communications will be kept confidential (§ 5-10(f)).

 

•As requested by the victim, a victim advocate must accompany and support the victim through the forensic medical examination process and investigatory interviews, and to provide emotional support, crisis intervention, information and referrals (§ 5-10(e); PREA Standard §115.21(e)). 

 

•Prior to implementation of this Initiative, CHA must provide the Board with a written plan describing, among other things, the services to be provided; the credentials of the victim advocates, privacy and confidentiality of in-person, written and telephone communications between inmates and advocates; and communications to inmates about these services (§ 5-10(h)). 

 

•Given that it will take a period of time to plan and implement this Initiative, CHA must provide the Board with a quarterly report of its progress toward implementation (§ 5-10(i)).

 

•After the Initiative is implemented, CHA shall provide annually to the Board a written report assessing the Initiative’s effectiveness, which shall include the number of inmates who received such services during the reporting year (§ 5-10(j)). 

 

 

 

 

Policies to Ensure Referrals of Allegations for Investigations (§ 5-11)

 

Rule § 5-11, which incorporates subdivisions (a), (b) and (c) of PREA Standard § 115.22, requires, among other things, that the Department ensure that an administrative or criminal investigation is completed for all allegations of sexual abuse and sexual harassment.  

 

Subchapter D: Training and Education §§ 5-12 – 5-16

 

The rules in Subchapter D require training on key topics related to preventing, detecting and responding to sexual abuse (§ 5-12 on employee training; § 5-13 on volunteer and contractor training), and special training of investigators (§ 5-15) and medical and mental health care practitioners (§ 5-16)). These rules incorporate PREA Standards §§ 115.31, 115.32, 115.34 and 115.35.

 

Since system-wide employee training must be conducted on a schedule that ensures adequate Department and CHA staff coverage at all times, such training may need to be conducted over an extended period of time. In response to the Department’s concerns about the deadline for completion of all employee training in the proposed rules, and the simultaneous deadlines for completion of training required under the Nunez Agreement, a new subdivision (f) of section 5-12 now requires that specific percentages of employees be completed by specified dates. In order to review progress toward this goal, § 5-12(g) requires the Department and CHA to give a quarterly written report to the Board of the number of their respective employees who have been trained in accordance with this rule. 

 

In response to comments received after the proposed rules were published, a new subdivision (h) was added to § 5-12. This subdivision requires that the training of Department and CHA staff on working with inmates who are transgender or intersex include the psychosocial and safety needs of such persons in custody and instructions on communicating with them in a manner that is respectful of their gender identity.

 

Also in response to comments on proposed §5-12, a new subdivision (i) has been added, which requires the Department and CHA to provide the Board on an annual basis the training schedules, training curriculum and credentials of the persons providing such training. 

Rule § 5-14 (“Inmate education”), which incorporates PREA Standard § 115.33(a), requires the Department to explain its zero-tolerance policy to inmates during the intake process and to educate inmates on how to report incidents of sexual abuse and sexual harassment (§ 5-14(a)). 

 

Rule § 5-14(b), which incorporates PREA Standard § 115.33(b), requires that, within 30 days of intake, the Department provide “comprehensive education” to inmates either in person or through video regarding their rights to be free from sexual abuse and sexual harassment and to be free from retaliation for reporting such incidents, and regarding Department policies and procedures for responding to such incidents. Following publication of the proposed rules, a new subdivision (g) was added, which provides that the Department shall annually provide to the Board the inmate education schedules, education curriculum, and the credentials of the persons providing such education to inmates.

 

Subchapter E: Screening for Risk of Victimization and Abusiveness 

§§ 5-17, 5-18, and 5-19

 

Rules §§ 5-17 and 5-18, which incorporate PREA Standards §§ 115.41 and 115.42, require the Department to screen inmates for their risk of being sexually abused or sexually abusive (§ 5-17), and to use that screening information to inform housing, bed, work, education and program assignments (§ 5-18). The goal is to keep inmates at high risk of victimization away from inmates at high risk of committing abuse.  

 

In response to comments about the proposed rule, two provisions have been added to § 5-18.

A new subdivision (d) provides that the Department shall not assign a transgender or intersex inmate to a men’s or women’s facility based solely on the inmate’s external genital anatomy. 

 

A new subdivision (h) was also added in response to comments on proposed § 5-18. This subdivision provides that the Department shall notify the Board, in writing, of each placement of a transgender or intersex inmate, all information considered in making, and the reasons for, its housing determination. The Department shall provide the Board with such information after the housing determination is made.

 

Rule § 5-19(a)-(e) (protective custody), which incorporates PREA Standard § 115.43, prohibits the placement of inmates at risk of sexual victimization in segregated housing for that reason against their will, unless certain conditions are met. These conditions include placement in involuntary segregated housing only until an alternative means of separation from likely abusers can be arranged; and that such assignment may not ordinarily exceed 30 days.

 

Subdivision (f) of § 5-19 requires the Department to issue a written directive to staff incorporating the provisions of this rule and provide this directive to the Board. To enable the Board to ascertain and assess the involuntary placement of at-risk inmates in segregated housing, subdivision (h) requires the Department to provide the Board with a quarterly report detailing the basis for such placements and why no alternative means of separation could be arranged, and the number of inmates who remain in involuntary segregated housing for more than 30 days. 

 

Subchapter F: Reporting §§ 5-20, 5-21 and 5-22

 

Sexual abuse in the nation’s prisons and jails is significantly underreported.  The rules in Subchapter F, which incorporate PREA Standards §§ 115.51, 115.53 and 115.54 (with certain additions), seek to expand the reporting of incidents of sexual abuse and sexual harassment.

 

Inmate Reporting (§ 5-20)

 

Rule § 5-20 requires the Department to:

 

•Provide at least two internal methods for inmates to first report sexual abuse, sexual harassment and retaliation (§ 5-20(a); see PREA Standard § 115.51(a)). 

 

•Provide at least one way for inmates to report abuse to an entity that is not part of the Department and that allows inmates to remain anonymous upon request (§ 5-20(b); see PREA Standard § 115.51(b)). 

 

•Requires the Department staff to accept reports made verbally, in writing, anonymously, and from third parties and to promptly document any verbal report (§ 5-20(c); PREA Standard § 115.51(c)).

 

•Include all the ways inmates can report such information on posters in all housing units, intake and program areas, clinics and mess halls, in the Inmate Handbook and Visitors Handbook, and on the Department’s website (§ 5-20(d)). 

 

•Provide a method for staff to privately report sexual abuse and sexual harassment (§ 5-20(e); see PREA Standard § 115.51(d)) and issue a written directive to all staff explaining how staff can privately report such information and all the ways inmates can do so, and provide this directive to the Board (§ 5-20(f)).

 

Inmate Access to Outside Confidential Support Services (§ 5-21)

Rule § 5-21(a), which incorporates PREA Standard § 115.53, requires the Department to provide inmates with access to outside victim advocacy organizations for confidential emotional support services related to sexual abuse as confidentially as possible. Subdivision (b) requires the Department to inform inmates, prior to giving them access, of the extent to which such communications will be monitored and the extent to which reports of abuse will be forwarded to authorities in accordance with mandatory reporting laws. Subdivision (c) provides that the Department shall maintain or attempt to enter into agreements with community service providers to provide these services.

Third Party Reporting (§ 5-22)

Rule § 5-22, which incorporates PREA Standard § 115.54, requires that the Department establish a way to receive third-party reports of sexual abuse and that it distribute information on how to report sexual abuse on behalf of an inmate (§ 5-22(a); see PREA Standard §115.54). Subdivision (b) of § 5-22 requires the Department to include in its Visitors Handbook and post on its website how third parties can report sexual abuse and sexual harassment on behalf of an inmate.

Subchapter G: Official Response Following an Inmate Report §§ 5-23 – 5-29

The rules in Subchapter G require the Department and CHA staff to respond quickly, effectively, and in a coordinated fashion to a report of sexual abuse to ensure that physical evidence is preserved and collected, the privacy of the victim is maintained, and the victim is protected from the alleged abuser and from retaliation. Sections 5-23 through 5-29 incorporate PREA Standards §§ 115.61-115-65, 115.67 and 115.68 (with the additions noted below).

Staff and Agency Reporting Duties (§ 5-23)

Rule § 5-23 (modeled on PREA Standard § 115.61) requires, among other things, that the Department report immediately any “knowledge, suspicion or information” regarding an incident of sexual abuse or sexual harassment, retaliation against inmates or staff who report such an incident, or any staff neglect or violation of responsibilities that may have contributed to an incident or retaliation (§ 5-23(a); compare to PREA Standard § 115.61(a)). The rule also requires that, unless otherwise precluded by federal, state or local law, medical and mental health practitioners must report sexual abuse and must inform inmates of the practitioner’s duty to report and the limitations of confidentiality (§ 5-23(c) and (d)).

 

 

Agency Protection Duties (§ 5-24)

Rule § 5-24 incorporates PREA Standard § 115.62, requiring the Department to act immediately to protect an inmate whenever it learns that the inmate faces a substantial risk of imminent sexual abuse.

Reporting to Other Confinement Facilities (§ 5-25)

Rule § 5-25 incorporates PREA Standard § 115.63, and requires a facility that receives an allegation that one of its inmates was sexually abused while confined at another facility to so inform the other facility within 72 hours. The facility receiving such notification must investigate the incident.

Staff First Responder Duties (§ 5-26)

Rule § 5-26, which incorporates PREA Standard § 115.64, sets forth first responder responsibilities, in recognition of the fact “that staff must be able to adequately counsel victims while maintaining security and control over the crime scene so that any physical evidence is preserved until the investigator arrives.” 

Specifically, § 5-26(a) requires that the first security staff member to respond to the report separate the abuser and victim, preserve any crime scene, and request that the victim and ensure that the abuser not take any actions that could destroy physical evidence.

Section § 5-26(b) requires that where the first staff responder is not a security staff member, the responder must request that the victim not take any actions that could destroy physical evidence, and then must notify security staff.

Coordinated Response (§ 5-27)

In response to comments received on proposed rule § 5-27, which incorporates PREA Standard § 115.65, the rule was revised. Instead of requiring the Department to develop individual facility plans, the rule now requires development of a system-wide written plan to coordinate responses to an incident of sexual abuse among staff first responders, medical and mental health practitioners, DOI, or investigators in DOC’s Investigation Division (“ID”), and facility leadership. 

Protection against Retaliation and Post-Allegation Protective Custody (§§ 5-28 and 5-29)

 

Retaliation for reporting incidents of sexual abuse and cooperating with sexual abuse investigations is a serious concern in correctional facilities.  Thus, rules §§ 5-28 and 5-29, which incorporate PREA Standards §§ 115.67 and 115.68, require the Department to take certain preventive and remedial actions, including:

•Establishing a policy to protect all inmates and staff who report sexual abuse or sexual harassment, or cooperate with investigations of such incidents, from retaliation by other inmates or staff and issuing a written directive to all staff embodying this policy (§ 5-28(a); see PREA Standard § 115.67(a)).

 

•Employing multiple protection measures, such as housing changes or transfers for inmate victims or abusers, removal of staff or inmate abusers from contact with victims, and emotional support services for inmates or staff who fear retaliation for reporting sexual abuse or sexual harassment or for cooperating with investigations (§ 5-28(b); see PREA Standard § 115.67(b)).

 

•For at least 90 days following a report of sexual abuse, monitoring the conduct and treatment of inmates or staff who reported the sexual abuse and of inmates who were reported to have suffered sexual abuse to see if there are changes that may suggest possible retaliation by inmates or staff, and acting promptly to remedy any such retaliation (§ 5-28(c); see PREA Standard § 115.67(c)).

Finally, rule § 5-29, which incorporates PREA Standard § 115.68, requires that any use of segregated housing to protect a victim of sexual abuse be subject to § 5-19, discussed above.

Subchapter H: Investigations §§ 5-30, 5-31 and 5-32

The purpose of the rules in Subchapter H is to ensure that all investigations of allegations of sexual abuse and sexual harassment are conducted “promptly, thoroughly, and objectively” 

(§ 5-30(a)). In the words of the National Prison Rape Elimination Commission: “Unless investigations produce compelling evidence, corrections administrators cannot impose discipline, prosecutors will not indict, and juries will not convict abusers.” 

The focus of the PREA Committee’s key findings was the quality of the Department’s investigations of staff-on-inmate sexual abuse and harassment. The Committee concluded that these investigations were deficient in terms of timeliness, thoroughness and objectivity. This is borne out by the fact that over a three-year period (2013-2015), only five (5) out of 294 allegations of staff-on-inmate sexual abuse were substantiated. Thus, the rules incorporate PREA Standards §§ 115.71, 115.72 and 115.73 which address this issue, and add certain provisions designed to address specific deficiencies identified by the Board in its evaluation of Department investigations of sexual abuse and sexual harassment. 

Criminal and Administrative Agency Investigations (§ 5-30)

Rules that incorporate PREA Standards on investigations include:

•The Department must investigate all allegations of sexual abuse and sexual harassment, including third-party and anonymous reports, and must do so “promptly, thoroughly, and objectively” (§ 5-30(a); see PREA Standard § 115.71(a)). 

•Where sexual abuse is alleged, the Department must use investigators who have received special training in sexual abuse investigations pursuant to rule § 5-15 (§ 5-30 (b); see PREA Standard § 115.71(b)).

 

•Investigators must gather and preserve direct and circumstantial evidence, including any available physical and DNA evidence and any available electronic monitoring data; must interview alleged victims, suspected perpetrators, and witnesses; and must review prior complaints and reports of sexual abuse involving the suspected perpetrator (§ 5-30(c); see PREA Standard § 115.71(c)).

 

•The credibility of an alleged victim, suspect, or witness must be assessed on an individual basis and cannot be determined by the person’s status as an inmate or as staff. (§ 5-30(e); see PREA Standard § 115.71(e)).

•All investigations must include an effort to determine whether staff actions or failures to act contributed to the abuse, and must be documented in written reports that include a description of the physical, testimonial and documentary evidence, the reasoning behind credibility assessments, and investigative facts and findings (§ 5-30(f); see PREA Standard § 115.71(f)(1) and (2)). 

•Substantiated allegations of conduct that appears to be criminal must be referred for prosecution (§ 5-30(h); see PREA Standard § 115.71(h)). 

•The departure of the alleged abuser or victim from the employment or control of the Department or CHA cannot provide a basis for terminating an investigation (§ 5-30(j); see PREA Standard § 115.71(j)). 

•When outside agencies investigate sexual abuse, the Department must cooperate with outside investigators and endeavor to remain informed about the progress of the investigation (§ 5-30(k); see PREA Standard § 115.71(k)). 

Rules that were added by the Board to the PREA Standards include:

•The Department must use its best efforts to conduct an initial evaluation as to whether any involved staff member should be suspended, placed on modified duty, re-assigned to a no-inmate-contact post or reassigned to a restricted-inmate-contact post pending investigation within three business days after it receives a report of an alleged incident of sexual abuse or sexual harassment (“Referral Date”). If sexual abuse is alleged, the Department must conduct such an evaluation after consulting with DOI unless doing so would pose a threat to the safety and well-being of the victim (§ 5-30(l)).

•The Department must complete all investigations of sexual abuse and sexual harassment allegations no later than 90 days from the Referral Date, absent extenuating circumstances outside the Department’s control (which must be documented) (§ 5-30(m)). 

•Inmates subject to alleged sexual abuse or sexual harassment must be interviewed within 72 hours of the Referral Date, absent unusual circumstances (which must be documented) (§ 5-30(o)).

 

•All interviews of staff allegedly involved in a sexual abuse or sexual harassment incident must be completed within 30 days of any immunity grants, absent unusual circumstances (which must be documented) (§ 5-30(p)). 

 

•Requests for statements or interviews of inmates must be made off the living unit and cannot be made within sight or hearing of other inmates or of staff involved in the incident. Inmate interviews must be conducted in a private and confidential setting (§ 5-30(q)). 

 

•At the conclusion of an investigation of alleged sexual abuse or sexual harassment, the Department must prepare a closing memorandum summarizing the findings of the investigation. The Department must also provide a copy of the closing memo to the Board (§ 5-30(r)). 

The Department must issue a written directive to all ID staff that incorporates the provisions of 

§ 5-30 and provide this directive to the Board (§ 5-30(t)). Additional related procedural protections that the Department has included in its PREA directive, but which are not specified in these rules, include: 

•Efforts to obtain inmate statements must be documented in the investigation file, as must inmate refusals to provide a statement;

•Interviews of inmates must be recorded and a written summary of each interview must be prepared and included in the investigation file; and

•The Department must take reasonable steps to obtain relevant medical records in connection with allegations of sexual abuse in a timely manner.

Evidentiary Standard for Administrative Investigations (§ 5-31)

Rule § 5-31, which incorporates PREA Standard § 115.72, provides that the Department will impose no standard higher than a preponderance of the evidence in determining whether allegations of sexual abuse or sexual harassment are substantiated.

Reporting to Inmates (§ 5-32)

Rule § 5-32, which incorporates PREA Standard § 115.73(a)-(e), requires, among other things, that: 

•Upon completion of an investigation of alleged sexual abuse, the Department must inform the inmate whether the allegation was deemed substantiated, unsubstantiated or unfounded (§ 5-32(a); compare PREA Standard § 115.73(a)). 

•If the Department did not conduct the investigation, it must request the relevant information from the investigating entity in order to inform the inmate (§ 5-32(b); compare PREA Standard § 115.73(b)).

•If an inmate alleges that a staff member committed sexual abuse against the inmate, the Department must inform the inmate (unless the Department has determined that the allegation is unfounded) whenever the staff member is (1) no longer posted in the inmate’s unit or facility, or (2) no longer employed at the facility; and whenever the Department learns that the staff member has been indicted on a charge related to the reported conduct or has been convicted on a charge related to sexual abuse within the facility (§ 5-32(c)(1)-(4); PREA Standard § 115.73(c)(1)-(4)).

•If an inmate alleges that another inmate committed sexual abuse against the inmate, the Department must inform the inmate whenever the Department learns that the abuser was indicted or convicted of a charge related to sexual abuse in the facility (§ 5-32(d); PREA Standard § 115.73(d)). 

Subchapter I: Discipline (§§ 5-33, 5-34 and 5-35)

One of the primary goals of the PREA Standards, and of these rules, is to ensure that abusers and perpetrators of sexual harassment are punished. This, in turn, will deter others from engaging in sexual abuse and sexual harassment, and encourage the reporting of such incidents. The rules in Subchapter I set guidelines for imposing disciplinary sanctions on staff, contractors, volunteers and inmates who engage in sexual abuse or sexual harassment, and incorporate PREA Standards §§ 115.76, 115.77, and 115.78. 

Rule § 5-33(a) provides that Department and CHA staff must be subject to disciplinary sanctions up to and including termination for violating agency sexual abuse or sexual harassment policies. Moreover, § 5-33(b) states that termination must be the “presumptive disciplinary sanction” for Department and CHA staff who have engaged in sexual abuse.

Rule § 5-34(a) provides that any contractor or volunteer who engages in sexual abuse must be prohibited from contact with inmates and must be reported to law enforcement agencies, unless the activity was clearly not criminal, and to relevant licensing bodies. Subdivision (b) requires the Department to take appropriate remedial measures and consider whether to prohibit further contact with inmates in the case of any other violation of sexual abuse or sexual harassment policies by a contractor or volunteer.

 

Rule § 5-35 enumerates disciplinary sanctions for inmates who sexually abuse other inmates. The rule states, among other things, that (1) the Department’s disciplinary process must consider whether an inmate’s mental illness contributed to his or her behavior in determining what type of sanction, if any, should be imposed (§ 5-35(c)); (2) the Department may discipline an inmate for sexual misconduct with staff only upon a finding that the staff member did not consent to such contact (§ 5-35 (d)); and (3) for the purpose of disciplinary action, a report of sexual abuse made in good faith based upon a reasonable belief that the alleged conduct occurred shall not constitute falsely reporting an incident or lying, even if an investigation does not establish evidence sufficient to substantiate the allegation (§ 5-35 (f)). 

 

Subchapter J: Medical and Mental Care §§ 5-36, 5-37 and 5-38

 

Rule § 5-36 (“Medical and mental health screenings; history of sexual abuse”), which incorporates PREA Standards §115.81(c), (d) and (e), provides, among other things, that if the intake screening pursuant to rule § 5-17 indicates that an inmate has experienced prior sexual victimization (in an institutional setting or in the community), Department staff must ensure that the inmate is offered a follow-up meeting with a medical or mental health practitioner within 14 days of the intake screening. 

Rule § 5-37 (“Access to emergency medical and mental health services”), which incorporates PREA Standard § 115.82, provides that inmate victims of sexual abuse (1) must be provided with timely and unimpeded access to free emergency medical treatment and crisis intervention services, and (2) must be offered timely information about and timely access to free emergency contraception and sexually transmitted infections prophylaxis where medically appropriate. 

Rule § 5-38 (“Ongoing medical and mental health care for sexual abuse victims”), which incorporates PREA Standard § 115.83(a)-(g), provides that victims of sexual abuse must receive, without financial cost, medical and mental health evaluation and treatment, including follow-up services, treatment plans and referrals for continued care following their transfer to or placement in other facilities, or their release from custody.

 

Subchapter K: Data Collection and Review; Audits §§ 5-39, 5-40 and 5-41

One of the PREA Committee’s key findings was that the Department lacks a comprehensive, coherent and transparent process for collecting data concerning allegations of sexual abuse. This significantly impedes efforts to adjust policies, practices and strategies designed to prevent, detect and respond to sexual violence based on meaningful data review and analysis. Moreover, in the absence of an effective data collection process, the Board is unable to track, assess and monitor the Department’s compliance with its rules.

The rules in subchapter K are designed to obtain incident-specific and aggregate data about sexual abuse and sexual harassment allegations and the outcomes of resulting investigations that will (1) identify possible patterns of sexual abuse and sexual harassment, and help prevent future misconduct; and (2) enable the Board to assess improvement in the quality of the Department’s investigation of sexual abuse and sexual harassment allegations.

Some of the rules incorporate certain provisions of PREA Standards §§ 115.86, 115.87, 115.88 and 115.89 regarding data collection and include additional provisions that are designed to make the data tracking and the Board’s review of such data more robust and informative.

Sexual Abuse Incident Reviews (§ 5-39)

Rule § 5-39, which incorporates PREA Standard § 115.86, sets forth requirements for sexual abuse incident reviews at the conclusion of every sexual abuse investigation where the allegations have been deemed substantiated or unsubstantiated. Unlike a sexual abuse investigation, which is intended to determine whether the abuse occurred, a sexual abuse incident review is intended to evaluate whether the Department’s policies and procedures need to be changed in light of the alleged incident. The rule requires that specific factors be considered as part of this evaluation, including whether (1) race, ethnicity, sexual orientation, gang affiliation, or group dynamics in the facility played a role, (2) physical barriers in the facility contributed to the incident, (3) staffing levels need to be changed, and (4) more video monitoring is required (§ 5-39(d)(1)-(5); PREA Standard § 115.86(d)(1)-(5)).

Section 5-39 further provides that such reviews must “ordinarily occur within 30 days of the conclusion of the investigation” (§ 5-39(b)); the review team must prepare a report of its findings and submit the report to the facility head and PREA compliance manager (§ 5-39 (d)(6)); and the facility must implement the recommendations for improvement, or must document its reasons for not doing so (§ 5-39 (e)).

Finally, § 5-39(f) requires the Department to provide the Board with all sexual abuse incident reviews on a quarterly basis.

Data Collection and Review (§ 5-40)

Rule § 5-40 requires the Department to, among other things, provide the Board on a semiannual basis with data concerning each incident of alleged sexual abuse. Section 5-40 differs from PREA Standard § 115.87 (“Data collection”) in that the rule specifies each data point to be reviewed and collected (§ 5-40(d)). In addition, unlike the proposed rule, which called for reporting these data points on an aggregate basis, the rule now requires that these data points be collected and reported to the Board with respect to each incident of alleged sexual abuse 

(§ 5-40(d)). This change was made to simplify and streamline the data collection and reporting process. 

Subdivision (d) of rule § 5-40 specifies the incident-related data to be collected, including, for example: 

•The date, time and location of the incident and the type of alleged sexual abuse (d)(1));

•Whether the alleged abuse was staff-on-inmate or inmate-on-inmate ((d)(2)). 

•The type of alleged abuse ((d)(3));

•Certain demographic information such as the sex of the alleged perpetrator and the alleged victim and whether the alleged victim was known by the Department to be transgender or intersex (d)(4));

•Who reported the incident and the method of reporting ((d)(5) and (6)).

•Whether the incident occurred in an area subject to video camera surveillance ((d)(7)). 

•Whether the victim was administered or declined a rape kit ((d)(10)). 

•When the investigation was opened and closed ((d)(11) and (12)).

•Whether the alleged incident was deemed substantiated, unsubstantiated or unfounded ((d)(13)).

•If the alleged perpetrator was a staff person, whether previous allegations of sexual abuse or sexual harassment had been lodged against him/her ((d)(16)).

•Whether investigation of the allegation was assumed by DOI and, if so, the status of the investigation ((d)(18)).

•Whether the allegation was referred to a DA’s Office and if so, the outcome ((d)(20)).

•Whether the allegation was referred for Department disciplinary action and, if so, the outcome ((d)(21)).

Subdivision (g) of the rule requires the Department to review this incident data in order to assess and improve the effectiveness of its sexual abuse and sexual harassment prevention, detection, and response policies, practices, and training, including by (1) identifying the problem areas and trends, (2) taking corrective action, and (3) including in a semiannual assessment report to the Board its findings and corrective action for each facility, as well as the Department as a whole.

Section 5-40(i) requires the Department to make its semiannual assessment reports readily available to the public by posting them on the Department’s website. Subdivision (j) permits the Department to redact specific material from these reports when publication would, for example, present a clear and present danger to the safety and security of the facility.  

Audits (§ 5-41)

Rule § 5-41 requires the Department to provide the Board with a copy of all audit reports, responses to audit reports, audit correction action plans, appeals of audit findings and decisions on appeal, which relate to audits of Department facilities or the Department as a whole pursuant to PREA Standards § 115.93 and §§115.401 through 115.405.

Subchapter L: Variances § 5-42

After publication of the proposed rules, a new rule § 5-42 was added, which permits the Department and CHA to apply for a variance from a specific subdivision or section of these rules in accordance with § 1-15 of Chapter 1 of the Board’s Minimum Standards.

Effective Date and Implementation Dates (Uncodified Rule §§ 2 and 3)

Section 2 of the rule states that the rules in Chapter 5 will become effective on January 2, 2017.

Certain of the rules, such as those requiring staff training, drafting of directives and policies, or preparation of reports, will not be implemented on the effective date. The implementation dates for these rules are specified therein and are also listed in a chart in uncodified § 3.

 
Effective Date: 
Mon, 01/02/2017

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Wednesday, August 31, 2016
Proposed Rules Content: 

Statement of Basis and Purpose of Proposed Rules

Under § 626(e) of the New York City Charter, the Board of Correction (“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” the New York City Department of Correction (“Department”). Pursuant to this authority, the Board proposes to create a new chapter of its rules containing Minimum Standards that are designed to detect, prevent and respond to sexual abuse and sexual harassment of persons incarcerated in jails and other facilities operated by the Department.

 In April 2015, the New York City Public Advocate Letitia James petitioned the Board to adopt rules consistent with national standards that the Department of Justice (“DOJ”) had promulgated pursuant to the Prison Rape Elimination Act of 2003 (“PREA”), 42 U.S.C. 15601, et seq., in response to the epidemic of sexual violence in the nation’s prisons and jails.[1] The Board accepted the petition at its June 9, 2015 meeting, and after several months of fact-finding by the Board’s ad hoc PREA Committee, developed proposed rules which incorporate in whole or in part many elements of the national standards (“PREA Standards”).

 In recognition of the unique characteristics of individual correctional agencies, facilities and inmate populations nationwide, the PREA Standards afford discretion and flexibility to agencies in combating sexual violence. Consistent with this approach, the proposed rules require action that is specifically tailored to detecting, preventing and responding to sexual abuse and sexual harassment in the New York City jails, including specific provisions proposed by the Public Advocate and other stakeholders. Additionally, the proposed rules do not incorporate certain sections of the PREA Standards which we concluded were not applicable to the Department or, in several instances noted below, not appropriate to apply to the Department.

 The proposed rules also contain provisions that will enable the Board to assess the Department’s compliance with them. These provisions require, for example, that the Department provide the Board with written directives or policies effectuating certain elements of the rules, periodic progress reports — particularly with respect to provisions that require an extended period of time to implement — and semiannual reporting of aggregate data that will allow the Board to track sexual abuse/sexual harassment allegations and outcomes.

 The proposed rules are embodied in a new chapter of the Board’s Minimum Standards, which is divided into subchapters that correspond to the subject matter categories in which the PREA Standards are grouped. Additionally, each rule that is modeled on a PREA Standard is denoted by the name of the PREA Standard section heading on which it is based.




[1] The standards are codified in 28 C.F.R. Part 115 and are available here: http://www.prearesourcecenter.org/sites/default/files/content/prisonsandjailsfinalstandards.pdf.

Subject: 

Implementation of Prison Rape Elimination Act

Location: 
125 Worth Street Second Floor Auditorium
New York, NY 10013
Contact: 

Bennett Stein, Special Assistant
bstein@boc.nyc.gov

Download Copy of Proposed Rule (.pdf):