Title 40: Board of Correction

Chapter 2: Mental Health Minimum Standards

§ 2-01 Service Calls.

Services for the detection, diagnosis and treatment of mental illness shall be provided to those persons in the care and custody of the New York City Department of Correction. The New York City Department of Health or a contracted service provider,* and the Department of Correction, with the approval of the Department of Mental Health, Mental Retardation and Alcoholism Services shall design and implement a mental health program to provide:

  1. crisis intervention and the management of acute psychiatric episodes;
  2. suicide prevention;
  3. stabilization of mental illness and the alleviation of psychological deterioration in the prison setting; and
  4. elective therapy services and preventive treatment where resources permit.

§ 2-02 Identification and Detection.

(a) Policy. Procedures shall be developed and implemented which promote the timely identification of inmates requiring mental health evaluation.
  1. Receiving screening.

   (1) Screening for mental and emotional disorders is to be performed on all inmates before they are placed in general population. This initial screening shall take place within twenty-four hours after an inmate’s arrival at the correctional facility.

   (2) Screening shall be performed by mental health services personnel or by appropriately trained medical personnel. Screening may be incorporated within the medical intake procedure.

   (3) The Department of Health, with the approval of the Department of Mental Health, Mental Retardation and Alcoholism Services shall develop written procedures setting the topics to be reviewed in receiving screening. The review shall include, but need not be limited to: psychiatric history, including neuropsychiatric hospitalizations, contacts with mental health professionals, suicidal and violent behavior, history or presence of delusions or hallucinations, and an assessment based on behavioral observations of mood, orientation, impaired consciousness, indications of gross mental retardation and significant presenting complaints.

   (4) The professionals conducting intake screening shall record their findings in a standard, written mental health intake form which the Department of Health shall develop with the approval of the Department of Mental Health, Mental Retardation and Alcoholism Services for use in all facilities.

   (5) Receiving screening shall include a description of available mental health services and the procedures for access to those services:

      (i) inmates shall receive a written communication in English and Spanish describing available mental health services, the confidentiality of those services and the procedures for gaining access to them;

      (ii) the Department of Correction shall make provisions to assist in assuring that the procedures for gaining access to mental health services are verbally explained to illiterate inmates, and that inmates whose native language is other than English or Spanish are given prompt access to translation services for the explanation of these procedures.

  1. Training of staff.

   (1) All correction officers and medical services personnel are to receive training and continuing education in programs approved by the Departments of Correction, Health and Mental Health, Mental Retardation and Alcoholism Services regarding the recognition of mental and emotional disorders. This training shall incorporate, but need not be limited to, the following areas:

      (i) the recognition of signs and symptoms of mental and emotional disorders most frequently found in the inmate population;

      (ii) the recognition of signs of chemical dependence and the symptoms of narcotic and alcohol withdrawal;

      (iii) the recognition of adverse reactions to psychotropic medication;

      (iv) the recognition of signs of developmental disability, particularly mental retardation;

      (v) types of potential mental health emergencies, and how to approach inmates to intervene in these crises;

      (vi) identification and referral of medical problems of mental health inmates;

      (vii) suicide prevention; and

      (viii) the appropriate channels for the immediate referral of an inmate to mental health services for further evaluation, and the procedures governing such referrals.

   (2) No later than nine months from the effective date of these standards, there shall be at least one officer in every housing area on every tour trained in the application of basic first aid, including life support cardio-pulmonary resuscitation.

   (3) Mental health services staff shall receive explicit orientation as well as continuing education and training appropriate to their activities:

      (i) there shall be a written plan developed by the Department of Health and approved by the Department of Mental Health, Mental Retardation and Alcoholism Services for the orientation, continuing education and training of all mental health services staff;

      (ii) in-service training shall include regular individual supervision of not less than one hour per week and not less than one hour per week of continuing education to be prorated for part-time staff.

  1. Observation aides.

   (1) There is to be an organized program of observation aides trained to monitor those inmates identified as potential suicide risks as well as to recognize in those inmates not previously identified the warning signals of suicidal behavior. Inmates, including those housed in mental observation areas, may be employed as observation aides and shall be paid for their services.

   (2) Written procedures shall be developed by the Department of Correction and Health, to be approved by the Department of Mental Health, Mental Retardation and Alcoholism Services, defining the selection criteria for observation aides, the training they shall receive, the procedures they shall follow and the criteria for the evaluation of their performance as well as for terminating their employment where necessary:

      (i) in developing a program of observation aides the Department of Correction shall consult with the Department of Health in order to provide for coordination of effort between the two agencies;

      (ii) observation aides shall be trained to promptly inform correction or mental health services staff when they believe an inmate poses a suicide risk, presents an immediate danger of suicide or is engaging in bizarre behavior. This information shall be recorded in a systematic manner.

   (3) Observation aides shall operate in all correctional facilities in the following housing areas: mental observation, punitive segregation, administrative segregation and new admission. They shall be employed in other areas as required.

§ 2-03 Diagnosis and Referral.

(a) Policy. The Departments of Correction and Health, with the approval of the Department of Mental Health, Mental Retardation and Alcoholism Services, shall develop procedures to provide for the prompt evaluation and appropriate referral of inmates whose behavior suggests that they are suffering from a mental or emotional disorder, as well as the immediate evaluation and treatment of those in need of emergency psychiatric care.
  1. Access.

   (1) There is to be non-emergency access to mental health services. Inmates may refer themselves for preliminary evaluation, and they shall be seen by a member of mental health services staff as soon as possible but in no instance later than three working days after receipt of referral by mental health services staff. The Department of Correction shall ensure that notice of the request is received by mental health services staff within twenty-four hours.

   (2) Inmates shall have twenty-four hour access to mental health services personnel for emergency psychiatric care and the management of acute psychiatric episodes:

      (i) all inmates who report having been sexually assaulted shall be referred for emergency assessment;

      (ii) inmates awaiting emergency evaluation are to be housed in a specially designated area with close staff supervision and sufficient security to protect inmates and staff;

      (iii) the Departments of Correction and Health shall develop a written form for emergency evaluation referrals.

   (3) Correction staff and medical services personnel are required to refer to mental health services those inmates in the general population who exhibit signs of mental or emotional disorders. A standard written procedure to include a description of the behavior upon which the referral is based shall be developed by the Departments of Health and Correction.

   (4) The Department of Correction shall provide sufficient escort officers to ensure delivery of service in a manner that promotes the maximum efficiency of mental health services staff. The Department of Correction shall develop and implement procedures to provide that inmates requested for evaluation or follow-up be escorted to mental health services staff, or accounted for, the same day. In all cases where the inmate is still in custody, he or she shall be brought to mental health services staff within twenty-four hours.

§ 2-04 Treatment.

(a) Policy. Adequate mental health care is to be provided to inmates in an environment which facilitates care and treatment, provides for maximum observation, reduces the risk of suicide, and is minimally stressful. Inmates under the care of mental health services, if in all other respects qualified and eligible shall be entitled to the same rights and privileges as every other inmate.
  1. Criteria of adequacy.

   (1) The Department of Health shall develop written criteria to be approved by the Department of Mental Health, Mental Retardation and Alcoholism Services defining in accordance with current professional standards the mental health staff, supplies and equipment necessary to provide adequate mental health care.

   (2) The Departments of Health and Correction shall develop written criteria to be approved by the Department of Mental Health, Mental Retardation and Alcoholism Services defining in accordance with current professional standards the space necessary to provide adequate and appropriate housing and treatment of inmates under the care of mental health services.

   (3) No later than ninety days from the effective date of these standards, the written criteria shall be submitted to the Board of Correction for promulgation as an amendment to these standards.

  1. Programs.

   (1) Special housing shall be provided to those inmates in need of close supervision due to mental or emotional disorders, and to those inmates in the process of being evaluated for such disorders:

      (i) twenty-four hour observation aides shall be assigned to special housing areas;

      (ii) correction officers who have received not less than thirty-five hours of special training within the first year of their assignment shall be assigned to steady posts within these areas. These officers shall receive annual training enhancement. The Departments of Health and Correction shall develop a written curriculum to be approved by the Department of Mental Health, Mental Retardation and Alcoholism Services specifying the components and hours of the training programs;

      (iii) inmates placed in special housing areas shall be seen and interviewed by mental health services staff at least once per week;

      (iv) an individual member of mental health services staff shall be directly responsible for mental health services in each special housing area;

      (v) the Department of Correction shall make provision for the allocation of dormitory space as special housing for the observation of potentially suicidal inmates.

   (2) The Departments of Correction and Health shall develop specific written criteria and procedures for the admission to and the discharge from special housing areas for mental observation:

      (i) it shall be the prerogative of mental health services to admit and discharge inmates from special housing areas for mental observation;

      (ii) the placement of an inmate in special housing shall be reviewed by mental health services at least once per week.

   (3) An individualized written treatment plan based upon the evaluation of the treatment team shall be developed for each inmate placed in special housing for mental observation and for all inmates to whom medication for mental or emotional disorders is prescribed:

      (i) the treatment team must include a psychiatrist who shall personally examine each inmate evaluated by the treatment team;

      (ii) those members of the treatment team who are providing care to an inmate shall prepare a treatment plan, which shall be signed by the psychiatrist;

      (iii) the Chief of Service or his or her designee shall approve all treatment plans;

      (iv) the Department of Health shall develop written criteria to be approved by the Department of Mental Health, Mental Retardation and Alcoholism Services defining the nature and the specificity of the treatment plan;

      (v) there shall be documented evidence of initial treatment planning within three days of the inmate being placed in special housing, and a treatment plan shall be prepared no later than one week after placement;

      (vi) treatment plans shall be reviewed and assessed for effectiveness by professional mental health services staff at least every two weeks. Both the review and the inmate’s progress shall be recorded in the medical chart;

      (vii) a range of treatment modalities other than the provision of medication shall be made available.

   (4) There shall be facilities appropriate for the observation, evaluation and treatment of acute psychiatric episodes.

   (5) Where required, an inmate shall be transferred to a municipal hospital prison ward in accordance with New York State Correction Law §§ 402 and 508.

   (6) Inmates identified as developmentally disabled shall be evaluated within seventy-two hours and mental health services staff shall make a recommendation to the Department of Correction as to whether such developmental disability makes it necessary for the inmate to be placed in special housing or otherwise separated from the general inmate population:

      (i) inmates who suffer from developmental disabilities shall be housed in areas sufficient to ensure their safety;

      (ii) if it is determined by mental health services that an inmate’s developmental disability makes it clinically contraindicated that the inmate be housed in a correctional facility, then the Department of Correction shall immediately notify the court and a written notice shall be filed in the inmate’s court papers.

   (7) The Departments of Health and Correction shall use mechanisms approved by the Department of Mental Health, Mental Retardation and Alcoholism Services to identify inmates who are suffering from drug addiction or the disease of alcoholism. Inmates so identified shall be referred to available programs approved by the Departments of Correction and Health. Detoxification shall take place in a setting appropriate to the level of care required.

  1. Informed consent. Except as otherwise provided herein, mental health treatment may be administered only upon the informed consent of the inmate after a disclosure of the risks and benefits of the proposed treatment in accordance with good clinical practice. The Departments of Health and Mental Health, Mental Retardation and Alcoholism Services shall develop procedures for the implementation of this section, which shall include the use of a written form to document the informed consent of the inmate.
  2. Right to refuse treatment. The city may not require treatment of an inmate without the inmate’s consent unless, in an emergency, that person, by reason of mental disability or mental illness, poses a clear and present danger of serious physical injury to self or others. Then and only then may an inmate be examined, treated or medicated against the inmate’s will, subject to the following conditions:

   (1) the attending physician shall use only those measures which in his or her best professional judgment are deemed appropriate in response to the emergency;

   (2) these measures may be used only with a written medical order;

   (3) these measures may be used only with adequate explanation in the inmate’s chart by the physician responsible detailing the length of the period of observation, the inmate’s condition, the threat the inmate poses and the specific reasons for the specific intervention proposed;

   (4) no order to treat an inmate against the inmate’s will shall be valid for longer than twenty-four hours, without review and renewal and appropriate notation in the inmate’s medical records;

   (5) the Departments of Correction and Health shall develop procedures to be approved by the Department of Mental Health, Mental Retardation and Alcoholism Services for the implementation of this subdivision including the use of a written form to document an inmate’s refusal to consent to a particular examination, procedure or medication.

§ 2-05 Medication.

(a) Policy. Medication shall not be used solely as a method of restraint or means of control, but only as one facet of a treatment plan (as defined in 40 RCNY § 2-04(c)(3)).
  1. Procedures.

   (1) The Department of Health, with the approval of the Department of Mental Health, Mental Retardation and Alcoholism Services shall develop and implement procedures governing the prescription, dispensing, administration and review of medication:

      (i) medication for mental and emotional disorders is to be prescribed only by a psychiatrist, except in an emergency when a physician other than a psychiatrist may prescribe medication for mental and emotional disorders. Such a prescription must be reviewed by a psychiatrist within twenty-four hours;

      (ii) except in an emergency, medication for mental and emotional disorders may not be prescribed to an inmate unless that inmate has had a physical examination including a detailed clinical history within the previous six months; in all cases the prescribing physician must first review the medical chart and all other medicine the inmate is receiving;

      (iii) medication is to be administered only by appropriately trained medical or health services personnel.

   (2) Psychotropic medication shall be dispensed only when clinically indicated, consistent with the treatment plan:

      (i) all prescriptions for psychotropic medication must include a stop order; no prescription for psychotropic medication shall be valid for longer than two weeks;

      (ii) every inmate receiving psychotropic medication shall be seen and evaluated by the prescribing psychiatrist, or, in cases of emergency when a physician other than a psychiatrist prescribes medication under 40 RCNY § 2-05(b)(1)(i) by the reviewing psychiatrist, at least once a week until stabilized and thereafter at least every two weeks by medical personnel;

      (iii) female inmates who are prescribed psychotropic medication shall be informed of the potential risk of taking such drugs while pregnant and shall be given the opportunity to be tested for pregnancy.

  1. Pharmacy.

   (1) When stock medications are maintained within a correctional facility, the agency providing medical services shall develop and maintain a formulary of medications stored in that facility.

   (2) The Departments of Health and Correction shall develop and implement a written policy to provide for the maximum security storage and weekly inventory of all controlled substances, syringes, needles and surgical instruments:

      (i) “controlled substances” are defined as those so listed by the Drug Enforcement Administration of the United States Department of Justice;

      (ii) written notice of this policy shall be given to all staff with potential access to any controlled substances or items under maximum security storage.

  1. Research. Biomedical or behavioral research involving any inmate in the custody of the New York City Department of Correction is prohibited, except insofar as it meets the requirements for approval of research which is subject to the Department of Health and Human Services’ regulations, and in addition, has the approval of the Department of Mental Health, Mental Retardation and Alcoholism Services.

§ 2-06 Restraints and Seclusion.

(a) Policy. The Departments of Correction and Health shall develop and implement procedures subject to the review of the Department of Mental Health, Mental Retardation and Alcoholism Services governing the physical restraint and seclusion of inmates being observed or treated for mental or emotional disorders. Consistent with the New York State Mental Hygiene Law restraints or seclusion shall not be used as punishment, for the convenience of staff, or as a substitute for treatment programs.
  1. Definitions.

   Physical restraint. “Physical restraint” is the deliberate use of a device to interfere with the free movement of an inmate’s arms and/or legs, or which totally immobilizes the inmate, and which the inmate is unable to remove without assistance:

      (i) the Departments of Health and Mental Health, Mental Retardation and Alcoholism Services shall develop procedures defining permissible forms of physical restraints;

      (ii) in no instance shall metal handcuffs be used to restrain an inmate; however, this proscription shall not preclude the application of appropriate security precautions during the transportation of inmates;

      (iii) in an emergency, when an inmate presents a clear and present danger to himself or others, the inmate may be restrained, including with metal handcuffs, pending the arrival of a psychiatrist. Correction personnel shall immediately notify the mental health staff for response. The psychiatrist shall respond immediately, but in no event more than one hour after notification. When there is no institutional psychiatrist on duty, correction personnel shall immediately transport the inmate to a facility where a psychiatrist is present.

   Seclusion. “Seclusion” is the placing of inmates in their cells, or a seclusion room from which they cannot leave at will, during a normal lock-out period when other inmates in the housing area are given the option to lock out of their cells:

      (i) seclusion shall be used only if the cells or seclusion rooms available allow adequate observation of the inmate by staff;

      (ii) nothing in this Section shall restrict the ability of the Department of Correction to limit the lock-out rights of inmates for disciplinary purposes (punitive segregation).

  1. Procedures.

   (1) The use of physical restraint or seclusion of inmates being observed or treated for mental or emotional disorders shall be permitted only where there is on-duty psychiatric coverage.

   (2) Physical restraint or seclusion may be used only upon the direct written order of a psychiatrist which includes the reasons for taking such action.

   (3) Physical restraint or seclusion shall be used only when the psychiatrist has examined the inmate and determined in light of all available mental health data that:

      (i) the inmate presents an immediate danger of injury to self or others;

      (ii) this potential for violence is the result of a mental health disorder for which the inmate is receiving treatment;

      (iii) these measures are absolutely necessary to avert the danger and will be therapeutically beneficial; and

      (iv) all other available alternatives are ineffective in preventing injury.

   (4) An inmate put in restraints or seclusion shall be kept under constant observation and the need for continued restrictive measures shall be assessed by nursing or mental health staff:

      (i) use of restraints shall be assessed every fifteen minutes and seclusion shall be reviewed every thirty minutes;

      (ii) written findings of such reviews shall be noted on the inmate’s medical chart;

      (iii) vital signs (temperature, pulse, blood pressure and respiration) shall be recorded every hour.

   (5) An inmate subjected to restraints or seclusion shall be released every two hours and given the opportunity to go to the toilet.

   (6) A psychiatrist shall evaluate an inmate in restraints or seclusion at least once every two hours to determine whether continued restrictive measures are warranted.

   (7) No order to place an inmate in restraints or seclusion shall be valid longer than two hours, and such an order shall be renewable only once, by a psychiatrist after evaluation of the inmate’s condition.

   (8) After four hours, if an inmate remains too agitated to be released, the inmate shall be moved to a municipal hospital prison ward.

§ 2-07 Confidentiality.

(a) Policy. The principle of confidentiality of information obtained in the course of treatment is to be upheld. The Departments of Correction and Health, with the approval of the Department of Mental Health, Mental Retardation and Alcoholism Services shall develop and implement a written policy governing the dissemination of information.
  1. Sharing of information.

   (1) Mental health services shall promptly inform correction personnel when an inmate is identified as:

      (i) suicidal;

      (ii) homicidal;

      (iii) posing a clear danger or injury to self or to others;

      (iv) presenting a clear and immediate risk of escape or riot;

      (v) receiving psychotropic medication; or

      (vi) requiring transfer for mental health reasons.

   (2) The Departments of Correction and Health shall develop and implement an explicit written procedure specifying which correction personnel are to be notified of information as described in 40 RCNY § 2-07(b)(1) above, and the method of notification.

  1. Records.

   (1) Mental health records are to be maintained separately from the confinement record and kept in a secure file. Each significant inmate contact shall be reflected by a substantive progress note on the chart.

   (2) Mental health records are to be transferred with an inmate when the inmate is transferred from one facility to another within the New York City Department of Correction. A record summary shall accompany each inmate transferred to a municipal hospital prison ward. When a request is received to transfer mental health records outside the jurisdiction of the Department of Correction, written authorization of the inmate is required unless otherwise provided by law.

§ 2-08 Coordination.

(a) Policy. The Departments of Correction and Health shall consult and coordinate their activities on a regular basis in order to provide for the continued delivery of quality mental health care.
  1. Discipline.

   (1) The Departments of Health and Correction shall develop written procedures to provide for mental health services to be informed whenever an inmate in a special housing area for mental observation is charged with an infraction, and to be permitted to participate in the infraction hearing and to review any punitive measures to be taken.

   (2) When placement in punitive segregation would pose a serious threat to an inmate’s physical or mental health, medical staff shall have the authority to determine that the inmate shall be barred from such placement or shall be moved from punitive segregation to a more appropriate housing unit. This determination may be made at any time during the inmate’s placement in punitive segregation. All inmates in punitive segregation shall be seen at least once each day by medical staff who shall make referrals to medical and mental health services where appropriate.

  1. Meetings. Monthly meetings including the facility administrator, the chief representative of mental health services to that facility and representatives of the medical and nursing staff shall be held to discuss the delivery of mental health services. Meetings shall include a written agenda as well as the taking and distribution of minutes.
  2. Evaluation. The Department of Mental Health, Mental Retardation and Alcoholism Services shall annually conduct a formal evaluation of the quality, effectiveness and level of performance of mental health services provided to inmates in New York City correctional facilities.

§ 2-09 Variances.

(a) Policy. Any Department affected by these minimum standards may apply for a variance from a specific subdivision or Section of these standards when compliance cannot be achieved or continued. A "variance" is an exemption granted by the Board from full compliance with a particular subdivision or Section for a specified period of time.
  1. Variance prior to implementation date. A Department may apply to the Board for a variance prior to the implementation date of a particular subdivision or Section when:

   (1) despite its best efforts and the best efforts of other New York City officials and agencies, full compliance with the subdivision or Section cannot be achieved by the implementation date; or

   (2) compliance is to be achieved in a manner other than specified in the subdivision or Section.

  1. Variance application. An application for a variance must be made in writing to the Board by the Commissioner of the Department at least forty-five days prior to the implementation date and shall state:

   (1) the particular subdivision or Section at issue;

   (2) the efforts undertaken by the Department to achieve compliance by the implementation date;

   (3) the specific facts or reasons making full compliance by the implementation date impossible;

   (4) the specific plans, projections and timetables for achieving full compliance;

   (5) the specific plans for serving the purpose of the subdivision or Section for the period that strict compliance is not possible; and

   (6) the time period for which the variance is requested, provided that this shall be no more than six months.

  1. Variance procedure.

   (1) Prior to a decision on a variance application, the Board shall consider the positions of all interested parties.

   (2) In order to receive this input the Board shall publicize the variance application in its entirety in a manner reasonably calculated to reach all interested parties, including direct mail. This shall occur at least thirty days prior to the implementation date of the subdivision or Section.

   (3) The Board shall hold a public meeting or hearing on the variance application and hear testimony from all interested parties at least twenty-one days prior to the implementation date.

   (4) The Board’s decision on a variance application shall be in writing and shall include the specific facts and reasons underlying the decision.

   (5) The Board’s decision shall be publicized in the manner provided by 40 RCNY § 2-09(d)(2) at least ten days prior to the implementation date.

  1. Granting of variance.

   (1) The Board shall grant a variance only if it is convinced that the variance is necessary and justified.

   (2) Upon granting a variance, the Board shall state:

      (i) the time period of the variance; and

      (ii) any requirements imposed as conditions on the variance.

  1. Renewal of variance. An application for a renewal of a variance shall be treated in the same manner as an original application as provided in 40 RCNY §§ 2-09(b), 2-09(c), 2-09(d) and 2-09(e). The Board shall not grant renewal of a variance unless it finds that, in addition to the requirements for approving an original application, a good faith effort has been made to comply with the subdivision or Section within the previously prescribed time limitation.
  2. Emergency variance after implementation date. A Department may apply to the Board for a variance after the implementation date of a particular subdivision or Section when an emergency prevents continued compliance with the subdivision or Section.
  3. Emergency variance application.

   (1) A variance for a period of less than twenty-four hours may be declared by the Department or a designee when an emergency prevents continued compliance with a particular subdivision or Section. The Board or a designate shall be immediately notified of the emergency and the variance.

   (2) An application for an emergency variance for a period of twenty-four hours or more, or for a renewal of an emergency variance, must be made by the Commissioner of the Department or a designee to the Board and shall state:

      (i) the particular subdivision or Section at issue;

      (ii) the specific facts or reasons making continued compliance impossible;

      (iii) the specific plans, projections and timetables for achieving full compliance; and

      (iv) the time period for which the variance is requested, provided that this shall be no more than five days.

  1. Granting of emergency variance.

   (1) The Board shall grant an emergency variance only if it is convinced that the variance is necessary and justified.

   (2) A renewal of an emergency variance previously granted by the Board may be granted only if the requirements of 40 RCNY §§ 2-09(g), 2-09(h)(2) and 2-09(i)(1) have been met.

   (3) The Board shall not grant more than two consecutive renewals of an emergency variance.

Chapter 1: Correctional Facilities

§ 1-01 Non-discriminatory Treatment.

(a)  Policy. People in custody shall not be subject to discriminatory treatment based upon race, religion, nationality, sex, sexual orientation, gender, disability, age or political belief. The term "person in custody" means any person in the custody of the New York City Department of Correction ("the Department"). "Inmate" and "prisoner" both mean "person in custody" throughout this Title, and the Board will modernize to person-forward language in promulgating rules, so as to phase out the use of "inmate" and "prisoner". "Detainee" means any person in custody awaiting disposition of a criminal charge. "Sentenced prisoner" means any person in custody serving a sentence of up to one year in Department custody.
  1. Equal protection.

   (1) Prisoners shall be afforded equal opportunity in all decisions including, but not limited to, work and housing assignments, classification, and discipline.

   (2) Prisoners shall be afforded equal protection and equal opportunity in being considered for any available programs including, but not limited to educational, religious, vocational, recreational, or temporary release.

   (3) Each facility shall provide programs, cultural activities and foods suitable for those racial and ethnic groups with significant representation in the prisoner population, including Black and Hispanic prisoners.

   (4) Nothing contained in this section shall prevent the Department from using rational criteria for a particular program or opportunity.

  1. Hispanic prisoners and staff.

   (1) Each facility shall have a sufficient number of employees and volunteers fluent in the Spanish language to assist Hispanic prisoners in understanding, and participating, in the various facility programs and activities, including use of the law library and parole applications.

   (2) Bilingual prisoners in each housing unit should be used to assist Spanish-speaking prisoners in the unit and in the law library.

   (3) Communications on any significant matter from correctional personnel to prisoners, including, but not limited to, orientation, legal research, facility programs, medical procedures, minimum standards and disciplinary code shall be in Spanish and English.

   (4) Communications on any significant matter from correctional personnel to outside individuals or organizations regularly involved with New York City prisoners shall be in Spanish and English.

   (5) Spanish-speaking prisoners shall be afforded opportunities to read publications and newspapers printed in Spanish, and to hear radio and television programs broadcast in Spanish. Facility libraries shall contain Spanish language books and materials.

  1. Different languages.

   (1) Prisoners shall be permitted to communicate with other prisoners and with persons outside the facility by mail, telephone, or in person, in any language, and may read and receive written materials in any language.

   (2) Provisions shall be made by the Department to assist in assuring prompt access to translation services for non-English speaking prisoners.

   (3) Procedures shall be employed to ensure that non-English speaking prisoners understand all written and oral communications from facility staff members, including but not limited to, orientation procedures, health services procedures, facility rules and disciplinary proceedings.

§ 1-02 Classification of Prisoners.

(a)  Policy. Consistent with the requirements of this section the Department shall employ a classification system for prisoners.
  1. Categories.

   (1) Sentenced inmates shall be housed separate and apart from inmates awaiting trial or examination, except when housed in:

      (i) punitive segregation;

      (ii) medical housing areas;

      (iii) mental health centers and mental observation cell housing areas;

      (iv) enhanced supervision housing;

      (v) nursery;

      (vi) adolescent housing areas;

      (vii) housing areas designated for inmates ages 18 to 21 inclusive; and

      (viii) housing areas for pregnant inmates.

   (2) Where sentenced inmates are housed with inmates awaiting trial or examination in the housing areas listed in subparagraphs (i) through (viii) of paragraph (1) of this subdivision, the sentenced inmates shall be treated as inmates awaiting trial or examination for all purposes other than housing.

   (3) Within the categories set forth in paragraph (1), the following groupings shall be housed separate and apart:

      (i) male adults, ages 22 and over;

      (ii) male young adults, ages 18 to 21 inclusive;

      (iii) male minors, ages 16 and 17;

      (iv) female adults, ages 22 and over;

      (v) female young adults, ages 18 to 21 inclusive;

      (vi) female minors, ages 16 and 17.

  1. Inmates ages 18 to 21 inclusive.

   (1) No later than October 15, 2015, the Department shall implement the requirement of paragraph (2) of subdivision (b) of this section that inmates ages 18 through 21 be housed separately and apart from inmates over the age of 21.

   (2) Housing for inmates ages 18 through 21 shall provide such inmates with age-appropriate programming. No later than August 1, 2015, the Department shall provide the Board with a plan to develop such age-appropriate programming.

  1. Civil prisoners.

   (1) Prisoners who are not directly involved in the criminal process as detainees or serving sentence and are confined for other reasons including civil process, civil contempt or material witness, shall be housed separate and apart from other prisoners and, if possible, located in a different structure or wing. They must be afforded at least as many of the rights, privileges and opportunities available to other prisoners.

   (2) Within this category, the following groupings shall be housed separate and apart:

      (i) male adults, ages 22 and over;

      (ii) male young adults, ages 18 to 21 inclusive;

      (iii) male minors, ages 16 and 17;

      (iv) female adults, ages 22 and over;

      (v) female young adults, ages 18 to 21 inclusive;

      (vi) female minors, ages 16 and 17.

  1. Limited commingling. Nothing contained in this section shall prevent prisoners in different categories or groupings from being in the same area for a specific purpose, including, but not limited to, entertainment, classes, contact visits or medical necessity.
  2. Security classification.

   (1) The Department shall use a system of classification to group prisoners according to the minimum degree of surveillance and security required.

   (2) The system of classification shall meet the following requirements:

      (i) It shall be in writing and shall specify the basic objectives, the classification categories, the variables and criteria used, the procedures used and the specific consequences to the prisoner of placement in each category.

      (ii) It shall include at least two classification categories.

      (iii) It shall provide for an initial classification upon entrance into the corrections system. Such classification shall take into account only relevant factual information about the prisoner, capable of verification.

      (iv) It shall provide for involvement of the prisoner at every stage with adequate due process.

      (v) Prisoners placed in the most restrictive security status shall only be denied those rights, privileges and opportunities that are directly related to their status and which cannot be provided to them at a different time or place than provided to other prisoners.

      (vi) It shall provide mechanisms for review of prisoners placed in the most restrictive security status at intervals not to exceed four weeks for detainees and eight weeks for sentenced prisoners.

§ 1-03 Personal Hygiene.

(a) Policy. Each facility shall provide for and maintain reasonable standards of prisoner personal hygiene.
  1. Showers.

   (1) Showers with hot and cold water shall be made available to all prisoners daily. The hot water temperature norms of the American Public Health Association shall be followed. Consistent with facility health requirements, prisoners may be required to shower periodically. The shower area shall be cleaned at least once each week.

   (2) Notwithstanding paragraph (1) of this subdivision, prisoners confined in punitive segregation may be denied daily access to showers for infraction convictions for misconduct on the way to, from or during a shower, as follows: for a first offense, access to showers may be reduced to five days per week for two consecutive weeks; for subsequent convictions during the same punitive segregation confinement, as follows: for a second conviction, access to showers may be reduced to three days per week for up to three consecutive weeks; for a third conviction, to three days per week for up to four consecutive weeks; and for a fourth conviction, to three days per week for the duration of the current punitive segregation confinement. The provisions of this paragraph (2) shall not apply to prisoners making court appearances, during times of hot weather when access to cool showers protects prisoners’ health, and to female prisoners who are menstruating,

  1. Shaving.

   (1) All prisoners shall be permitted to shave daily. Hot water sufficient to enable prisoners to shave with care and comfort shall be provided. Upon request, necessary shaving items shall be provided at Department expense and shall be maintained in a safe and sanitary condition.

   (2) Notwithstanding paragraph (1) of this subdivision, prisoners confined in punitive segregation may be denied access to daily shaves, except for court appearances, for infraction convictions for misconduct on the way to, from or during a shower, in accordance with the schedule in paragraph (b)(2) of this section.

  1. Haircuts.

   (1) Hair shall be cut by persons capable of using barber tools. Such persons include, but are not limited to:

      (i) licensed barbers;

      (ii) facility staff members; and

      (iii) prisoners.

   (2) Barber tools shall be maintained in a safe, sanitary condition.

  1. Hair styles.

   (1) Consistent with the requirements of this subdivision, prisoners shall be permitted to adopt hair styles, including facial hair styles, of any length.

      (i) Prisoners assigned to work in areas where food is stored, prepared, served or otherwise handled may be required to wear a hair net or other head covering.

      (ii) The Department may determine that certain work assignments constitute a safety hazard to those prisoners with long hair or beards. Prisoners unwilling or unable to conform to the safety requirements of such work assignment shall be assigned elsewhere.

      (iii) Should examination of a prisoner’s hair reveal the presence of vermin, medical treatment should be initiated immediately. The cutting of a prisoner’s hair is permissible under these circumstances pursuant to a physician’s written order and under the direct supervision of the physician.

   (2) When the growth or removal of a prisoner’s hair, including facial hair, creates an identification problem, a new photograph may be taken of that prisoner.

  1. Personal health care items.

   (1) Upon admission to a facility, all prisoners shall be provided at Department expense with an issue of personal health care items, including but not limited to:

      (i) soap;

      (ii) toothbrush;

      (iii) toothpaste or tooth powder;

      (iv) drinking cup;

      (v) toilet paper;

      (vi) towel; and

      (vii) aluminum or plastic mirror, unless this is permanently available in the housing area.

   (2) In addition to the items listed in paragraph (1) of this subdivision, all women prisoners shall be provided at Department expense with necessary hygiene items.

   (3) Towels shall be exchanged at least once per week at Department expense. All other personal health care items issued pursuant to paragraphs (1) and (2) of this subdivision shall be replenished or replaced as needed at Department expense.

  1. Clothing.

   (1) Prisoners shall be entitled to wear clothing provided by the Department as needed. Such clothing shall be laundered and repaired at Department expense and shall include, but is not limited to:

      (i) one shirt;

      (ii) one pair of pants;

      (iii) two sets of undergarments;

      (iv) two pairs of socks;

      (v) one pair of suitable footwear; and

      (vi) one sweater or sweatshirt to be issued during cold weather.

   (2) The Department may require sentenced prisoners to wear facility clothing. Upon establishment and operation of clothing services described in paragraph (h)(2) of this section, the Department may require all prisoners to wear seasonally appropriate facility clothing, except that for trial appearances, prisoners may wear clothing items described in paragraph (3) of this subdivision. The facility clothing that is provided for detainees shall be readily distinguishable from that provided for sentenced prisoners. Facility clothing shall be provided, laundered and repaired at Department expense.

   (3) Until the Department establishes and operates clothing services described in paragraph (h)(2) of this section, detainees shall be permitted to wear non-facility clothing. Such clothing may include items:

      (i) worn by the prisoner upon admission to the facility; and

      (ii) received after admission from any source. This clothing, including shoes, may be new or used.

      (iii) Detainees shall be permitted to wear all items of clothing that are generally acceptable in public and that do not constitute a threat to the safety of a facility.

   (4) Prisoners engaged in work assignment or outdoor recreation requiring special clothing shall be provided with such clothing at Department expense.

   (5) Upon establishment and operation of clothing services described in paragraph (h)(2) of this section and requiring all prisoners to wear facility clothing, the Department shall provide to all prisoners upon admission at least the following:

      (i) two shirts;

      (ii) one pair of pants;

      (iii) four sets of undergarments;

      (iv) four pairs of socks;

      (v) one pair of suitable footwear; and

      (vi) one sweater or sweatshirt to be issued during cold weather.

   (6) Upon requiring all prisoners to wear facility clothing, the Department shall provide prisoners with a clean exchange of such clothing every four days.

  1. Clothing services.

   (1) Laundry service sufficient to provide prisoners with a clean change of personal or facility clothing at least twice per week shall be provided at Department expense.

   (2) Prior to requiring detainees to wear facility clothing, the Department shall establish and operate:

      (i) laundry service sufficient to fulfill the requirements of paragraphs (g)(5) and (6) of this section at Department expense, and

      (ii) secure storage facilities from which prisoners’ personal clothing can be retrieved promptly and cleaned for trial court appearances, and retrieved promptly upon prisoners’ discharge from custody.

      (i) Bedding.

   (1) Upon admission to a facility, all prisoners shall be provided at Department expense with an issue of bedding, including but not limited to:

      (i) two sheets;

      (ii) one pillow;

      (iii) one pillow case;

      (iv) one mattress;

      (v) one mattress cover; and

      (vi) sufficient blankets to provide comfort and warmth.

   (2) Prior to being issued, all bedding items shall be checked for damage and repaired or cleaned, if necessary.

   (3) Pillowcases and sheets shall be cleaned at least once each week. Blankets shall be cleaned at least once every three months. Mattresses shall be cleaned at least once every six months.

   (4) Mattresses must be constructed of fire retardant materials. Mattress covers must be constructed of materials both water resistant and easily sanitized.

   (5) All items of clothing and bedding stored within the facility shall be maintained in a safe and sanitary manner.

  1. Housing areas.

   (1) Prisoners shall be provided at Department expense with a supply of brooms, mops, soap powder, disinfectant, and other materials sufficient to properly clean and maintain housing areas, except when contraindicated by medical staff. Under such circumstance, the Department shall make other arrangements for cleaning these areas.

   (2) The Department shall provide for regular cleaning of all housing areas, including cells, tiers, dayrooms, and windows, and for the extermination of rodents and vermin in all housing areas.

   (3) All housing areas shall contain at least the following fixtures in sufficient supply to meet reasonable standards of prisoner personal hygiene:

      (i) sink with hot and cold water;

      (ii) flush toilet; and

      (iii) shower with hot and cold water.

§ 1-04 Overcrowding.

(a)  Policy. Prisoners shall not be housed in cells, rooms or dormitories unless adequate space and furnishings are provided.
  1. Single occupancy.

   (1) A cell or room designed or rated for single occupancy shall house only one prisoner.

   (2) Each single cell shall contain a flush toilet, a wash basin with drinking water, a single bed and a closeable storage container for personal property.

   (3) A single-cell housing area shall contain table or desk space for each occupant that is available for use at least 12 hours per day.

  1. Multiple occupancy.

   (1) A multiple-occupancy area shall contain for each occupant a single bed, a closeable storage container for personal property and a table or desk space that is available for use at least 12 hours per day.

   (2) Multiple-occupancy areas shall provide a minimum of 60 square feet of floor space per person in the sleeping area.

   (3) A multiple-occupancy area shall provide a minimum of one operable toilet and shower for every 8 prisoners and one operable sink for every 10 prisoners. Toilets shall be accessible for use without staff assistance 24 hours per day.

   (4) A multiple-occupancy area shall provide a dayroom space that is physically and acoustically separate from but immediately adjacent and accessible to the sleeping area, except for cells designed or rated for two or more occupants, opened on or prior to January 1, 2000.

   (5) A multiple occupancy area shall house no more than:

      (i) 50 Detainees

      (ii) 60 Sentenced Prisoners. This subparagraph shall be applicable to all multi-occupancy areas opened after July 1, 1985.

§ 1-05 Lock-in.

(a) Policy. The time spent by prisoners confined to their cells should be kept to a minimum and required only when necessary for the safety and security of the facility. The provisions of this section are inapplicable to prisoners confined in punitive segregation or prisoners confined for medical reasons in the contagious disease units.
  1. Involuntary lock-in. No prisoner shall be required to remain confined to his or her cell except for the following purposes:

   (1) At night for count or sleep, not to exceed eight hours in any 24-hour period;

   (2) During the day for count or required facility business that can only be carried out while prisoners are locked in, not to exceed two hours in any 24-hour period. This time may be extended if necessary to complete an off count. This paragraph shall not apply to prisoners confined in enhanced supervision housing, who may be locked in during the day for up to nine hours in any 24-hour period.

  1. Optional lock-in.

   (1) Prisoners shall have the option of being locked in their cells during lock-out periods. Prisoners choosing to lock in at the beginning of a lock-out period of two hours or more shall be locked out upon request after one-half of the period. At this time, prisoners who have been locked out shall be locked in upon request.

   (2) The Department may deny optional lock-in to a prisoner in mental observation status if a psychiatrist or psychologist determines in writing that optional lock-in poses a serious threat to the safety of that prisoner. A decision to deny optional lock-in must be reviewed every ten days, including a written statement of findings, by a psychiatrist or psychologist. Decisions made by a psychiatrist or psychologist pursuant to this subdivision must be based on personal consultation with the prisoner.

  1. Schedule. Each facility shall maintain and distribute to all prisoners or post in each housing area its lock-out schedule, including the time during each lock-out period when prisoners may exercise the options provided by paragraph (c)(1) of this subdivision.

§ 1-06 Recreation.

(a) Policy. Recreation is essential to good health and contributes to reducing tensions within a facility. Prisoners shall be provided with adequate indoor and outdoor recreational opportunities.
  1. Recreation areas. Indoor and outdoor recreation areas of sufficient size to meet the requirements of this section shall be established and maintained by each facility. An outdoor recreation area must allow for direct access to sunlight and air.
  2. Recreation schedule. Recreation periods shall be at least one hour; only time spent at the recreation area shall count toward the hour. Recreation shall be available seven days per week in the outdoor recreation area, except in inclement weather when the indoor recreation area shall be used.
  3. Recreation equipment.

   (1) The Department shall make available to prisoners an adequate amount of equipment during the recreation period.

   (2) Upon request each facility shall provide prisoners with appropriate outer garments in satisfactory condition, including coat, hat, and gloves, when they participate in outdoor recreation during cold or wet weather conditions.

  1. Recreation within housing area.

   (1) Prisoners shall be permitted to engage in recreation activities within cell corridors and tiers, dayrooms and individual housing units. Such recreation may include but is not limited to:

      (i) table games;

      (ii) exercise programs; and

      (iii) arts and crafts activities.

   (2) Recreation taking place within cell corridors and tiers, dayrooms and individual housing units shall supplement, but not fulfill, the requirements of subdivision (c) of this section.

  1. Recreation for inmates in the contagious disease units. In place of out-of-cell recreation, the Department, in consultation with medical providers, may provide inmates confined for medical reasons in the contagious disease units with appropriate recreation equipment and materials for in-cell recreation. The Department must provide such inmates with daily access to publications, such as newspapers, books, and magazines, which shall be made available in the six (6) most common languages spoken by the inmate population.
  2. Recreation for prisoners in segregation. Prisoners confined in close custody or punitive segregation shall be permitted recreation in accordance with the provisions of subdivision (c) of this section.
  3. Limitation on access to recreation. A prisoner’s access to recreation may be denied for up to five days only upon conviction of an infraction for misconduct on the way to, from or during recreation.

§ 1-07 Religion.

(a) Policy. Prisoners have an unrestricted right to hold any religious belief, and to be a member of any religious group or organization, as well as to refrain from the exercise of any religious beliefs. A prisoner may change his or her religious affiliation.
  1. Exercise of religious beliefs.

   (1) Prisoners are entitled to exercise their religious beliefs in any manner that does not constitute a clear and present danger to the safety or security of a facility.

   (2) No employee or agent of the Department or of any voluntary program shall be permitted to proselytize or seek to convert any prisoner, nor shall any prisoner be compelled to exercise or be dissuaded from exercising any religious belief.

   (3) Equal status and protection shall be afforded all prisoners in the exercise of their religious beliefs except when such exercise is unduly disruptive of facility routine.

  1. Congregate religious activities.

   (1) Consistent with the requirements of subdivision (a) of this section, all prisoners shall be permitted to congregate for the purpose of religious worship and other religious activities, except for prisoners confined for medical reasons in the contagious disease units.

   (2) Each facility shall provide all prisoners access to an appropriate area for congregate religious worship and other religious activities. Consistent with the requirements of paragraph (b)(1) of this section, this area shall be made available to prisoners in accordance with the practice of their religion.

  1. Religious advisors.

   (1) As used in this section, the term “religious advisor” means a person who has received endorsement from the relevant religious authority.

   (2) Religious advisors shall be permitted to conduct congregate religious activities permitted pursuant to subdivision (c) of this section. When no religious advisor is available, a member of a prisoner religious group may be permitted to conduct congregate religious activities.

   (3) Consistent with the requirements of paragraph (b)(1) of this section, prisoners shall be permitted confidential consultation with their religious advisors during lock-out periods.

  1. Celebration of religious holidays or festivals. Consistent with the requirements of paragraph (b)(1) of this section, prisoners shall be permitted to celebrate religious holidays or festivals on an individual or congregate basis.
  2. Religious dietary laws. Prisoners are entitled to the reasonable observance of dietary laws or fasts established by their religion. Each facility shall provide prisoners with food items sufficient to meet such religious dietary laws.
  3. Religious articles. Consistent with the requirements of paragraph (b)(1) of this section, prisoners shall be entitled to wear and to possess religious medals or other religious articles, including clothing and hats.
  4. Exercise of religious beliefs by prisoners in segregation.

   (1) Prisoners confined in administrative or punitive segregation shall not be prohibited from exercising their religious beliefs, including the opportunities provided by subdivisions (d) through (g) of this section.

   (2) Congregate religious activities by prisoners in close custody or punitive segregation shall be provided for by permitting such prisoners to attend congregate religious activities with appropriate security either with each other or with other prisoners.

  1. Recognition of a religious group or organization.

   (1) A list shall be maintained of all religious groups and organizations recognized by the Department. This list shall be in Spanish and English, and shall be distributed to all incoming prisoners or posted in each housing area.

   (2) Each facility shall maintain a list of the religious advisor, if any, for each religious group and organization, and the time and place for the congregate service of each religion. This list shall be in Spanish and English, and shall be distributed to all incoming prisoners or posted in each housing area.

   (3) Prisoner requests to exercise the beliefs of a religious group or organization not previously recognized shall be made to the Department.

   (4) In determining requests made pursuant to paragraph (3) of this subdivision, the following factors among others shall be considered as indicating a religious foundation for the belief:

      (i) whether there is substantial literature supporting the belief as related to religious principle;

      (ii) whether there is formal, organized worship by a recognizable and cohesive group sharing the belief;

      (iii) whether there is an informal association of persons who share common ethical, moral, or intellectual views supporting the belief; or

      (iv) whether the belief is deeply and sincerely held by the prisoner.

   (5) In determining requests made pursuant to paragraph (3) of this subdivision, the following factors shall not be considered as indicating a lack of religious foundation for the belief:

      (i) the belief is held by a small number of individuals;

      (ii) the belief is of recent origin;

      (iii) the belief is not based on the concept of a Supreme Being or its equivalent; or

      (iv) the belief is unpopular or controversial.

   (6) In determining requests made pursuant to paragraph (3) of this subdivision, prisoners shall be permitted to present evidence indicating a religious foundation for the belief.

   (7) The procedure outlined in paragraphs (1) and (3) of this subdivision shall apply when a prisoner request made pursuant to paragraph (i)(3) of this subdivision is denied.

  1. Limitations on the exercise of religious beliefs.

   (1) Any determination to limit the exercise of the religious beliefs of any prisoner shall be made in writing, and shall state the specific facts and reasons underlying such determination. A copy of this determination, including the appeal procedure, shall be sent to the Board and to any person affected by the determination within 24 hours of the determination.

   (2) This determination must be based on specific acts committed by the prisoner during the exercise of his or her religion that demonstrate a serious and immediate threat to the safety and security of the facility. Prior to any determination, the prisoner must be provided with written notification of the specific charges and the names and statements of the charging parties, and be afforded an opportunity to respond.

   (3) Any person affected by a determination made pursuant to this subdivision may appeal such determination to the Board.

      (i) The person affected by the determination shall give notice in writing to the Board and the Department of his or her intent to appeal the determination.

      (ii) The Department and any person affected by the determination may submit to the Board for its consideration any relevant material in addition to the written determination.

      (iii) The Board or its designee shall issue a written decision upon the appeal within 14 business days after receiving notice of the requested review.

§ 1-08 Access to Courts and Legal Services.

(a) Policy. Prisoners are entitled to access to courts, attorneys, legal assistants and legal materials.
  1. Judicial and administrative proceedings.

   (1) Prisoners shall not be restricted in their communications with courts or administrative agencies pertaining to either criminal or civil proceedings except pursuant to a court order.

   (2) Timely transportation shall be provided to prisoners scheduled to appear before courts or administrative agencies. Vehicles used to transport prisoners must meet all applicable safety and inspection requirements and provide adequate ventilation, lighting and comfort.

  1. Access to counsel.

   (1) Prisoners shall not be restricted in their communication with attorneys. The fact that a prisoner is represented by one attorney shall not be grounds for preventing him or her from communicating with other attorneys. Any properly identified attorney may visit any prisoner with the prisoner’s consent.

      (i) An attorney may be required to present identification to a designated official at the central office of the Department in order to obtain a facility pass. This pass shall permit the attorney to visit any prisoner in the custody of the Department.

      (ii) The Department only may require such identification as is normally possessed by an attorney.

   (2) The Department may limit visits to any attorney of record, or an attorney with a court notice for prisoners undergoing examination for competency pursuant to court order.

   (3) Visits between prisoners and attorneys shall be kept confidential and protected, in accordance with provisions of 40 RCNY § 1-09. Legal visits shall be permitted at least eight hours per day between 8 a.m. and 8 p.m. During business days, four of those hours shall be 8 a.m. to 10 a.m., and 6 p.m. to 8 p.m. The Department shall maintain and post the schedule of legal visiting hours at each facility.

   (4) Mail between prisoners and attorneys shall not be delayed, read, or interfered with in any manner, except as provided in 40 RCNY § 1-11.

   (5) Telephone communications between prisoners and attorneys shall be kept confidential and protected, in accordance with the provisions of 40 RCNY § 1-10.

  1. Access to co-defendants. Upon reasonable request, regular visits shall be permitted between a detainee and all of his or her co-defendants who consent to such visits. If any of the co-defendants are incarcerated, the Department may require that an attorney of record be present and teleconferencing shall be used, if available.
  2. Attorney assistants.

   (1) Law students, legal paraprofessionals, and other attorney assistants working under the supervision of an attorney representing a prisoner shall be permitted to communicate with prisoners by mail, telephone and personal visits, to the same extent and under the same conditions that the attorney may do so for the purpose of representing the prisoner. Law students, legal paraprofessionals and other attorney assistants working under the supervision of an attorney contacted by a prisoner shall be permitted to communicate with that prisoner by mail, telephone, or personal visits to the same extent and under the same conditions that the attorney may do so.

   (2) An attorney assistant may be required to present a letter of identification from the attorney to a designated official at the central office of the Department in order to obtain a facility pass. A pass shall not be denied based upon any of the reasons listed in 40 RCNY § 1-09(h)(1).

   (3) The pass shall permit the assistant to perform the functions listed in subdivision (e) of this section. It may be revoked if specific acts committed by the legal assistant demonstrate his or her threat to the safety and security of a facility. This determination must be made pursuant to the procedural requirements of paragraphs (2), (4) and (5) of subdivision (h) of 40 RCNY § 1-09.

  1. Law libraries. Each facility shall maintain a properly equipped and staffed law library.

   (1) The law library shall be located in a separate area sufficiently free of noise and activity and with sufficient space and lighting to permit sustained research.

   (2) Each law library shall be open for a minimum of five days per week including at least one weekend day. On each day a law library is open:

      (i) in facilities with more than 600 prisoners, each law library shall be operated for a minimum of ten hours, of which at least eight shall be during lock-out hours;

      (ii) in facilities with 600 or fewer prisoners, each law library shall be operated for a minimum of eight and a half hours, of which at least six and a half shall be during lock-out hours;

      (iii) in all facilities, the law library shall be operated for at least three hours between 6 p.m. and 10 p.m.; and

      (iv) the law library will be kept open for prisoners’ use on all holidays which fall on regular law library days except New Year’s Day, July 4th, Thanksgiving, and Christmas. The law library may be closed on holidays other than those specified provided that law library services are provided on either of the two days of the same week the law library is usually closed. On holidays on which the law library is kept open, it shall operate for a minimum of eight hours. No changes to law library schedules shall be made without written notice to the Board of Correction, and shall be received at least five business days before the planned change(s) is to be implemented.

   (3) The law library schedule shall be arranged to provide access to prisoners during times of the day when other activities such as recreation, commissary, meals, school, sick call, etc., are not scheduled. Where such considerations cannot be made, prisoners shall be afforded another opportunity to attend the law library at a later time during the day.

   (4) Each prisoner shall be granted access to the law library for a period of at least two hours per day on each day the law library is open. Upon request, extra time may be provided as needed, space and time permitting. In providing extra time, prisoners who have an immediate need for additional time, such as prisoners on trial and those with an impending court deadline shall be granted preference.

   (5) Notwithstanding the provisions of paragraph (f)(4), prisoners housed for medical reasons in the contagious disease units may be denied access to the law library. An alternative method of access to legal materials shall be instituted to permit effective legal research.

   (6) The law library hours for prisoners in punitive segregation or enhanced supervision housing may be reduced or eliminated, provided that an alternative method of access to legal materials is instituted to permit effective legal research.

   (7) Legal research classes for general population prisoners shall be conducted at each facility on at least a quarterly basis. Legal research training materials shall be made available upon request to prisoners in special housing.

   (8) The Department shall report annually to the Board detailing the resources available at the law library at each facility, including a list of titles and dates of all law books and periodicals and the number, qualifications and hours of English and Spanish-speaking legal assistants.

  1. Legal documents and supplies.

   (1) Each law library shall contain necessary research and reference materials which shall be kept properly updated and supplemented, and shall be replaced without undue delay when materials are missing or damaged.

   (2) Prisoners shall have reasonable access to typewriters, dedicated word processors, and photocopiers for the purpose of preparing legal documents. A sufficient number of operable typewriters, dedicated word processors, and photocopy machines will be provided for prisoner use.

   (3) Legal clerical supplies, including pens, legal paper and pads shall be made available for purchase by prisoners. Such legal clerical supplies shall be provided to indigent prisoners at Department expense.

   (4) Unmarked legal forms which are commonly used by prisoners shall be made available. Each prisoner shall be permitted to use or make copies of such forms for his or her own use.

  1. Law library staffing.

   (1) During all hours of operation, each law library shall be staffed with trained civilian legal coordinator(s) to assist prisoners with the preparation of legal materials. Legal coordinator coverage shall be provided during extended absences of the regularly assigned legal coordinator(s).

   (2) Each law library shall be staffed with an adequate number of permanently assigned correction officers knowledgeable of law library procedures.

   (3) Spanish-speaking prisoners shall be provided assistance in use of the law library by employees fluent in the Spanish language on an as needed basis.

      (i) Number of legal documents and research materials.

   (1) Prisoners shall be permitted to purchase and receive law books and other legal research materials from any source.

   (2) Reasonable regulations governing the keeping of materials in cells and the searching of cells may be adopted, but under no circumstances may prisoners’ legal documents, books, and papers be read or confiscated by correctional personnel without a lawful warrant. Where the space in a cell is limited, an alternative method of safely storing legal materials elsewhere in the facility is required, provided that a prisoner shall have regular access to these materials.

  1. Limitation of access to law library.

   (1) A prisoner may be removed from the law library if he or she disrupts the orderly functioning of the law library or does not use the law library for its intended purposes. A prisoner may be excluded from the law library for more than the remainder of one law library period only for a disciplinary infraction occurring within a law library.

   (2) Any determination to limit a prisoner’s right of access to the law library shall be made in writing and shall state the specific facts and reasons underlying such determination. A copy of this determination, including the appeal procedure, shall be sent to the Board and to any person affected by the determination within 24 hours of the determination.

   (3) An alternative method of access to legal materials shall be instituted to permit effective legal research for any prisoner excluded from the law library. A legal coordinator shall visit any excluded prisoner to determine his or her law library needs upon request.

   (4) Any person affected by a determination made pursuant to this subdivision (j) may appeal such determination to the Board.

      (i) The person affected by a determination shall give notice in writing to the Board and to the Department of his or her intent to appeal the determination.

      (ii) The Department and any person affected by the determination may submit to the Board for its consideration any relevant material in addition to the written determination.

      (iii) The Board or its designee shall issue a written decision upon the appeal within five business days after receiving notice of the requested review.

§ 1-09 Visiting.

(a) Policy. All inmates are entitled to receive personal visits of sufficient length and number. Maintaining personal connections with social and family networks and support systems is critical to improving outcomes both during confinement and upon reentry. Visitation with friends and family plays an instrumental role in an inmate's ability to maintain these connections and should therefore be encouraged and facilitated by the Department. Additionally, the Board recognizes that an inmate's family may not be limited to those related to the inmate by blood or by legally-recognized bonds, such as marriage or adoption. Therefore, the term "family" as it is used in this subdivision should be construed broadly to reflect the diversity of familial structures and the wide variety of relationships that may closely connect an inmate to others. This should include, for example, but may not be limited to: romantic partners; godparents and godchildren; current and former step-parents, children, and siblings; and those connected to the inmate through current or former domestic partnerships, foster arrangements, civil unions, or cohabitation.
  1. Visiting and waiting areas.

   (1) A visiting area of sufficient size to meet the requirements of this section shall be established and maintained in each facility.

   (2) The visiting area shall be designed so as to allow physical contact between prisoners and their visitors as required by subdivision (f) of this section.

   (3) The Department shall make every effort to minimize the waiting time prior to a visit. Visitors shall not be required to wait outside a facility unless adequate shelter is provided and the requirements of paragraph (b)(4) of this section are met.

   (4) All waiting and visiting areas shall provide for at least minimal comforts for visitors, including but not limited to:

      (i) sufficient seats for all visitors;

      (ii) access to bathroom facilities and drinking water throughout the waiting and visiting periods;

      (iii) access to vending machines for beverages and foodstuffs at some point during the waiting or visiting period; and

      (iv) access to a Spanish-speaking employee or volunteer at some point during the waiting or visiting period. All visiting rules, regulations and hours shall be clearly posted in English and Spanish in the waiting and visiting areas at each facility.

   (5) The Department shall make every effort to utilize outdoor areas for visits during the warm weather months.

  1. Visiting schedule.

   (1) Visiting hours may be varied to fit the schedules of individual facilities but must meet the following minimum requirements for detainees:

      (i) Monday through Friday. Visiting shall be permitted on at least three days for at least three consecutive hours between 9 a.m. and 5 p.m. Visiting shall be permitted on at least two evenings for at least three consecutive hours between 6 p.m. and 10 p.m.

      (ii) Saturday and Sunday. Visiting shall be permitted on both days for at least five consecutive hours between 9 a.m. and 8 p.m.

   (2) Visiting hours may be varied to fit the schedules of individual facilities but must meet the following minimum requirements for sentenced prisoners:

      (i) Monday through Friday. Visiting shall be permitted on at least one evening for at least three consecutive hours between 6 p.m. and 10 p.m.

      (ii) Saturday and Sunday. Visiting shall be permitted on both days for at least five consecutive hours between 9 a.m. and 8 p.m.

   (3) The visiting schedule of each facility shall be available by contacting either the central office of the Department or the facility.

   (4) Visits shall last at least one hour. This time period shall not begin until the prisoner and visitor meet in the visiting room.

   (5) Sentenced prisoners are entitled to at least two visits per week with at least one on an evening or the weekend, as the sentenced prisoner wishes. Detainees are entitled to at least three visits per week with at least one on an evening or the weekend, as the detainee wishes. Visits by properly identified persons providing services or assistance, including lawyers, doctors, religious advisors, public officials, therapists, counselors and media representatives, shall not count against this number.

   (6) There shall be no limit to the number of visits by a particular visitor or category of visitors.

   (7) In addition to the minimum number of visits required by paragraphs (1), (2) and (5) of this subdivision, additional visitation shall be provided in cases involving special necessity, including but not limited to, emergency situations and situations involving lengthy travel time.

   (8) Prisoners shall be permitted to visit with at least three visitors at the same time, with the maximum number to be determined by the facility.

   (9) Visitors shall be permitted to visit with at least two prisoners at the same time, with the maximum number to be determined by the facility.

   (10) If necessitated by lack of space, a facility may limit the total number of persons in any group of visitors and prisoners to four. Such a limitation shall be waived in cases involving special necessity, including but not limited to, emergency situations and situations involving lengthy travel time.

  1. Initial visit.

   (1) Each detainee shall be entitled to receive a non-contact visit within 24 hours of his or her admission to the facility.

   (2) If a visiting period scheduled pursuant to paragraph (c)(1) of this section is not available within 24 hours after a detainee’s admission, arrangements shall be made to ensure that the initial visit required by this subdivision is made available.

  1. Visitor identification and registration.

   (1) Consistent with the requirements of this subdivision, any properly identified person shall, with the prisoner’s consent, be permitted to visit the prisoner.

      (i) Prior to a visit, a prisoner shall be informed of the identity of the prospective visitor.

      (ii) A refusal by a prisoner to meet with a particular visitor shall not affect the prisoner’s right to meet with any other visitor during that period, nor the prisoner’s right to meet with the refused visitor during subsequent periods.

   (2) Each visitor shall be required to enter in the facility visitors log:

      (i) his or her name;

      (ii) his or her address;

      (iii) the date;

      (iv) the time of entry;

      (v) the name of the prisoner or prisoners to be visited; and

      (vi) the time of exit.

   (3) Any prospective visitor who is under 16 years of age shall be required to enter, or have entered for him or her, in the facility visitors log:

      (i) the information required by paragraph (2) of this subdivision;

      (ii) his or her age; and

      (iii) the name, address, and telephone number of his or her parent or legal guardian.

   (4) The visitors log shall be confidential, and information contained therein shall not be read by or revealed to non-Department staff except as provided by the City Charter or pursuant to a specific request by an official law enforcement agency. The Department shall maintain a record of all such requests with detailed and complete descriptions.

   (5) Prior to visiting a prisoner, a prospective visitor under 16 years of age may be required to be accompanied by a person 18 years of age or older, and to produce oral or written permission from a parent or legal guardian approving such visit.

   (6) The Department may adopt alternative procedures for visiting by persons under 16 years of age. Such procedures must be consistent with the policy of paragraph (e) (5) of this subdivision, and shall be submitted to the Board for approval.

  1. Contact visits. Physical contact shall be permitted between every inmate and all of the inmate’s visitors. Permitted physical contact shall include a brief embrace and kiss between the inmate and visitor at both the beginning and end of the visitation period. Inmates shall be permitted to hold children in the inmate’s family who are ages fourteen (14) and younger throughout the visitation period, provided that the Department may limit an inmate’s holding of children to one child at a time. Additionally, inmates shall be permitted to hold hands with their visitors throughout the visitation period, which the Department may limit to holding hands over a partition that is no greater than six (6) inches. The provisions of this subdivision are inapplicable to inmates housed for medical reasons in the contagious disease units. The Department may impose certain limitations on contact visits for inmates confined in enhanced supervision housing in accordance with the procedures and guidelines set forth in 40 RCNY § 1-16.
  2. Visiting security and supervision.

   (1) All prisoners, prior and subsequent to each visit, may be searched solely to ensure that they possess no contraband.

   (2) All prospective visitors may be searched prior to a visit solely to ensure that they possess no contraband.

   (3) Any body search of a prospective visitor made pursuant to paragraph (2) of this subdivision shall be conducted only through the use of electronic detection devices. Nothing contained herein shall affect any authority possessed by correctional personnel pursuant to statute.

   (4) Objects possessed by a prospective visitor, including but not limited to, handbags or packages, may be searched or checked. Personal effects, including wedding rings and religious medals and clothing, may be worn by visitors during a visit. The Department may require a prospective visitor to secure in a lockable locker his or her personal property, including but not limited to bags, outerwear and electronic devices. A visit may not be delayed or denied because an operable, lockable locker is not available.

   (5) Supervision shall be provided during visits solely to ensure that the safety or security of the facility is maintained.

   (6) Visits shall not be listened to or monitored unless a lawful warrant is obtained, although visual supervision should be maintained.

  1. Restrictions on visitation rights.

   (1) The visitation rights of an inmate with a particular visitor may be denied, revoked or limited only when it is determined that the exercise of those rights constitutes a serious threat to the safety or security of a facility, provided that visitation rights with a particular visitor may be denied only if revoking the right to contact visits would not suffice to reduce the serious threat.

      This determination must be based on specific acts committed by the visitor during a prior visit to a facility that demonstrate the visitor’s threat to the safety and security of a facility, or on specific information received and verified that the visitor plans to engage in acts during the next visit that will be a threat to the safety or security of the facility. Prior to any determination, the visitor must be provided with written notification of the specific charges and the names and statements of the charging parties, and be afforded an opportunity to respond. The name of an informant may be withheld if necessary to protect the informant’s safety.

   (2) An inmate’s right to contact visits as provided in subdivision (f) of this section may be denied, revoked, or limited only when it is determined that such visits constitute a serious threat to the safety or security of a facility. Should a determination be made to deny, revoke or limit an inmate’s right to contact visits in the usual manner, alternative arrangements for affording the inmate the requisite number of visits shall be made, including, but not limited to, non-contact visits.

      This determination must be based on specific acts committed by the inmate while in custody under the present charge or sentence that demonstrate the inmate’s threat to the safety and security of a facility, or on specific information received and verified that the inmate plans to engage in acts during the next visit that will be a threat to the safety or security of the facility. Prior to any determination, the inmate must be provided with written notification of the specific charges and the names and statements of the charging parties, and be afforded an opportunity to respond. The name of an informant may be withheld if necessary to protect the informant’s safety.

   (3) Restrictions on visitation rights must be tailored to the threat posed by the inmate or prospective visitor and shall go no further than what is necessary to address that threat.

   (4) Visitation rights shall not be denied, revoked, limited or interfered with based on an inmate’s or a prospective visitor’s actual or perceived:

      (i) sex;

      (ii) sexual orientation;

      (iii) race;

      (iv) age, except as otherwise provided in this section;

      (v) nationality;

      (vi) political beliefs;

      (vii) religion;

      (viii) criminal record;

      (ix) pending criminal or civil case;

      (x) lack of family relationship;

      (xi) gender, including gender identity, self-image, appearance, behavior or expression; or

      (xii) disability

   (5) Any determination to deny, revoke or limit an inmate’s visitation rights pursuant to paragraphs (1) and (2) of this subdivision shall be in writing and shall state the specific facts and reasons underlying such determination. A copy of this determination, including a description of the appeal procedure, shall be sent to the Board and to any person affected by the determination within 24 hours of the determination.

  1. Appeal procedure for visitation restrictions.

   (1) Any person affected by the Department’s determination to deny, revoke or limit access to visitation may appeal such determination to the Board, in accordance with the following procedures:

      (i) The person affected by the determination shall give notice in writing to the Board and the Department of intent to appeal the determination.

      (ii) The Department and any person affected by the determination may submit to the Board for its consideration any relevant material in addition to the written determination.

      (iii) The Board or its designee shall issue a written decision upon the appeal within five (5) business days after receiving notice of the requested review, indicating whether the visitation determination has been affirmed, reversed, or modified.

      (iv) Where there exists good cause to extend the time period in which the Board or designee may issue a written decision beyond five (5) business days, the Board or designee may issue a single extension not to exceed ten (10) business days. In such instances, the Board shall immediately notify the Department and any persons affected by the extension.

§ 1-10 Telephone Calls.

(a) Policy. Prisoners are entitled to make periodic telephone calls. A sufficient number of telephones to meet the requirements of this section shall be installed in the housing areas of each facility.
  1. Initial telephone call. Upon admission to a facility, each detainee shall be permitted to make one completed local telephone call at Department expense. Requests to make additional telephone calls upon admission shall be decided by the facility. Long distance telephone calls shall be made collect, although arrangements may be made to permit the prisoner to bear the cost of such calls.
  2. Detainee telephone calls. Detainees shall be permitted to make a minimum of one telephone call each day. Three calls each week shall be provided to indigent detainees at Department expense if made within New York City. Long distance telephone calls shall be made collect or at the expense of the detainee.
  3. Sentenced prisoner telephone calls. Sentenced prisoners shall be permitted to make a minimum of two telephone calls each week. These calls shall be provided to indigent sentenced prisoners at Department expense if made within New York City. Long distance telephone calls shall be made collect or at the expense of the sentenced prisoner.
  4. Duration of telephone calls. The Department shall allow telephone calls of at least six minutes in duration.
  5. Scheduling of telephone calls. In meeting the requirements of subdivisions (c) and (d) of this section, telephone calls shall be permitted during all lock-out periods. Telephone calls of an emergency nature shall be made at any reasonable time.
  6. Incoming telephone calls.

   (1) A prisoner shall be permitted to receive incoming telephone calls of an emergency nature, or a message shall be taken and the prisoner permitted to return the call as soon as possible.

   (2) A prisoner shall be permitted to receive incoming telephone calls from his or her attorney of record in a pending civil or criminal proceeding, or a message shall be taken and the prisoner permitted to return the call as soon as possible. Such calls must pertain to the pending proceeding.

  1. Supervision of telephone calls. Upon implementation of appropriate procedures, prisoner telephone calls may be listened to or monitored only when legally sufficient notice has been given to the prisoners. Telephone calls to the Board of Correction, Inspector General and other monitoring bodies, as well as to treating physicians and clinicians, attorneys and clergy shall not be listened to or monitored.
  2. Limitation on telephone rights.

   (1) The telephone rights of any prisoner may be limited only when it is determined that the exercise of those rights constitutes a threat to the safety or security of the facility or an abuse of written telephone regulations previously known to the prisoner.

      (i) This determination must be based on specific acts committed by the prisoner during the exercise of telephone rights that demonstrate such a threat or abuse. Prior to any determination, the prisoner must be provided with written notification of specific charges and the names and statements of the charging parties, and be afforded an opportunity to respond. The name of an informant may be withheld if necessary to protect his or her safety.

      (ii) Any determination to limit a prisoner’s telephone rights shall be made in writing and state specific facts and reasons underlying such determination. A copy of this determination, including the appeal procedure, shall be sent to the Board and to any person affected by the determination within 24 hours of the determination.

   (2) The telephone rights provided in subdivisions (c) and (d) of this section may be limited for prisoners in punitive segregation, provided that such persons shall be permitted to make a minimum of one telephone call each week.

  1. Appeal. Any person affected by a determination made pursuant to this subdivision may appeal such determination to the Board.

   (1) The person affected by the determination shall give notice in writing to the Board and the Department of his or her intent to appeal the determination.

   (2) The Department and any person affected by the determination may submit to the Board for its consideration any relevant material in addition to the written deter- mination.

   (3) The Board or its designee shall issue a written decision upon the appeal within five business days after receiving notice of the requested review.

§ 1-11 Correspondence.

(a) Policy. Prisoners are entitled to correspond with any person, except when there is a reasonable belief that limitation is necessary to protect public safety or maintain facility order and security. The Department shall establish appropriate procedures to implement this policy. Correspondence shall not be deemed to constitute a threat to safety and security of a facility solely because it criticizes a facility, its staff, or the correctional system, or espouses unpopular ideas, including ideas that facility staff deem not conducive to rehabilitation or correctional treatment. The Department shall provide notice of this policy to all prisoners.
  1. Number and language.

   (1) There shall be no restriction upon incoming or outgoing prisoner correspondence based upon either the amount of correspondence sent or received, or the language in which correspondence is written.

   (2) If a prisoner is unable to read or write, he or she may receive assistance with correspondence from other persons, including but not limited to, facility employees and prisoners.

  1. Outgoing correspondence.

   (1) Each facility shall make available to indigent prisoners at Department expense stationery and postage for all letters to attorneys, courts and public officials, as well as two other letters each week.

   (2) Each facility shall make available for purchase by prisoners both stationery and postage.

   (3) Outgoing prisoner correspondence shall bear the sender’s name and either the facility post office box or street address or the sender’s home address in the upper left hand corner of the envelope.

   (4) Outgoing prisoner correspondence shall be sealed by the prisoner and deposited in locked mail receptacles.

   (5) All outgoing prisoner correspondence shall be forwarded to the United States Postal Service at least once each business day.

   (6) Outgoing prisoner non-privileged correspondence shall not be opened or read except pursuant to a lawful search warrant or the warden’s written order articulating a reasonable basis to believe that the correspondence threatens the safety or security of the facility, another person, or the public.

      (i) The warden’s written order shall state the specific facts and reasons supporting the determination.

      (ii) The affected prisoner shall be given written notification of the determination and the specific facts and reasons supporting it. The warden may delay notifying the prisoner only for so long as such notification would endanger the safety and security of the facility, after which the warden immediately shall notify the prisoner. This requirement shall not apply to prisoners confined in enhanced supervision housing.

      (iii) A written record of correspondence read pursuant to this paragraph shall be maintained and shall include: the name of the prisoner, the name of the intended recipient, the name of the reader, the date the correspondence was read, and, with the exception of prisoners confined in enhanced supervision housing, the date that the prisoner received notification.

      (iv) Any action taken pursuant to this paragraph shall be completed within five business days of receipt of the correspondence by the Department.

   (7) Outgoing prisoner privileged correspondence shall not be opened or read except pursuant to a lawful search warrant.

  1. Incoming correspondence.

   (1) Incoming correspondence shall be delivered to the intended prisoner within 48 hours of receipt by the Department unless the prisoner is no longer in custody of the Department.

   (2) A list of items that may be received in correspondence shall be established by the Department. Upon admission to a facility, prisoners shall be provided a copy of this list or it shall be posted in each housing area.

  1. Inspection of incoming correspondence.

   (1) Incoming prisoner non-privileged correspondence

      (a) shall not be opened except in the presence of the intended prisoner or pursuant to a lawful search warrant or the warden’s written order articulating a reasonable basis to believe that the correspondence threatens the safety or security of the facility, another person, or the public.

         (i) The warden’s written order shall state the specific facts and reasons supporting the determination.

         (ii) The affected prisoner and sender shall be given written notification of the warden’s determination and the specific facts and reasons supporting it. The warden may delay notifying the prisoner and the sender only for so long as such notification would endanger the safety or security of the facility, after which the warden immediately shall notify the prisoner and sender. This requirement shall not apply to prisoners confined in enhanced supervision housing.

         (iii) A written record of correspondence read pursuant to this subdivision shall be maintained and shall include: the name of the sender, the name of the intended prisoner recipient, the name of the reader, the date that the correspondence was received and was read, and, with the exception of prisoners confined in enhanced supervision housing, the date that the prisoner and sender received notification.

         (iv) Any action taken pursuant to this subdivision shall be completed within five business days of receipt of the correspondence by the Department.

      (b) shall not be read except pursuant to a lawful search warrant or the warden’s written order articulating a reasonable basis to believe that the correspondence threatens the safety or security of the facility, another person, or the public. Procedures for the warden’s written order pursuant to this subdivision are set forth in paragraph (1) of this subdivision.

   (2) Incoming correspondence may be manipulated or inspected without opening, and subjected to any non-intrusive devices. A letter may be held for an extra 24 hours pending resolution of a search warrant application.

   (3) Incoming privileged correspondence shall not be opened except in the presence of the recipient prisoner or pursuant to a lawful search warrant. Incoming privileged correspondence shall not be read except pursuant to a lawful search warrant.

  1. Prohibited items in incoming correspondence.

   (1) When an item found in incoming correspondence involves a criminal offense, it may be forwarded to the appropriate authority for possible criminal prosecution. In such situations, the notice required by paragraph (3) of this subdivision may be delayed if necessary to prevent interference with an ongoing criminal investigation.

   (2) A prohibited item found in incoming prisoner correspondence that does not involve a criminal offense shall be returned to the sender, donated or destroyed, as the prisoner wishes.

   (3) Within 24 hours of the removal of an item, the Board and the intended prisoner shall be sent written notification of this action. This written notice shall include:

      (i) the name and address of the sender;

      (ii) the item removed;

      (iii) the reasons for removal;

      (iv) the choice provided by paragraph (2) of this subdivision; and

      (v) the appeal procedure.

   (4) After removal of an item, the incoming correspondence shall be forwarded to the intended prisoner.

  1. Appeal. Any person affected by the determination to remove an item from prisoner correspondence may appeal such determination to the Board.

   (1) The person affected by the determination shall give notice in writing to the Board and to the Department of his or her intent to appeal the determination.

   (2) The Department and any person affected by the determination may submit to the Board for its consideration any relevant material in addition to the written deter- mination.

   (3) The Board or its designee shall issue a written decision upon the appeal within 14 business days after receiving notice of the requested review.

§ 1-12 Packages.

(a) Policy. Prisoners shall be permitted to receive packages from, and send packages to, any person, except when there is reasonable belief that limitation is necessary to protect public safety or maintain facility order and security.
  1. Number. The Department may impose reasonable restrictions on the number of packages sent or received.
  2. Outgoing packages. The costs incurred in sending outgoing packages shall be borne by the prisoner.
  3. Incoming packages.

   (1) Incoming packages shall be delivered within 72 hours of receipt by the Department, unless the intended inmate is no longer in custody of the Department.

   (2) Packages may be personally delivered to a facility during visiting hours.

   (3) Upon admission to a facility, prisoners shall be provided with a copy of a list of items that may be received in packages or this list shall be posted in each housing area.

  1. Inspection of incoming packages.

   (1) Incoming packages may be opened and inspected.

   (2) Correspondence enclosed in incoming packages may not be opened or read except pursuant to the procedures set forth in subdivision (e) of 40 RCNY § 1-11.

  1. Prohibited items in incoming packages.

   (1) When an item found in an incoming package involves a criminal offense, it may be forwarded to the appropriate authority for possible criminal prosecution. In such situations, the notice required by paragraph (3) of this subdivision may be delayed if necessary to prevent interference with an ongoing criminal investigation.

   (2) A prohibited item found in an incoming package that does not involve a criminal offense shall be returned to the sender, donated or destroyed, as the prisoner wishes.

   (3) Within 24 hours of the removal of an item, the Board and the intended prisoner shall be sent written notification of this action. This written notice shall include:

      (i) the name and address of the sender;

      (ii) the item removed;

      (iii) the reasons for removal;

      (iv) the choice provided by paragraph (2) of this subdivision; and

      (v) the appeal procedure.

   (4) After removal of an item, all other items in the package shall be forwarded to the intended prisoner.

  1. Appeal. Any person affected by the determination to remove an item from an incoming package may appeal such determination to the Board.

   (1) The person affected by the determination shall give notice in writing to the Board and to the Department of his or her intent to appeal the determination.

   (2) The Department and any person affected by the determination may submit to the Board for its consideration any relevant material in addition to the written determination.

   (3) The Board or its designee shall issue a written decision upon the appeal within 14 business days after receiving notice of the requested review.

§ 1-13 Publications.

(a) Policy. Prisoners are entitled to receive new or used publications from any source, including family, friends and publishers, except when there is substantial belief that limitation is necessary to protect public safety or maintain facility order and security. "Publications" are printed materials including soft and hardcover books, articles, magazines and newspapers.
  1. Number and language. There shall be no restriction upon the receipt of publications based upon the number of publications previously received by the prisoner, or the language of the publication.
  2. Incoming publications.

   (1) Incoming publications shall be delivered to the intended prisoner within 48 hours of receipt by the Department unless the prisoner is no longer in custody of the Department.

   (2) Incoming publications may be opened and inspected pursuant to the procedures applicable to incoming packages.

   (3) Incoming publications shall not be censored or delayed unless they contain specific instructions on the manufacture or use of dangerous weapons or explosives, plans for escape, or other material that may compromise the safety and security of the facility.

   (4) Incoming publications shall only be read to ascertain if they contain material prohibited by paragraph (3) of this subdivision.

   (5) Within 24 hours of a decision to censor or delay all or part of an incoming publication, the Board and the intended prisoner shall be sent written notification of such action. This notice shall include the specific facts and reasons underlying the determination and the appeal procedure.

  1. Appeal. Any person affected by a determination made pursuant to paragraph (c)(3) of this section may appeal such determination to the Board.

   (1) The person affected by the determination shall give notice in writing to the Board and the Department of his or her intent to appeal the determination.

   (2) The Department and any person affected by the determination may submit to the Board for its consideration any relevant material in addition to the written deter- mination.

   (3) The Board or its designee shall issue a written decision upon the appeal within five business days after receiving notice of the requested review.

§ 1-14 Access to Media.

(a) Policy. Prisoners are entitled to access to the media. "Media" means any printed or electronic means of conveying information to any portion of the public and shall include, but is not limited to newspapers, magazines, books or other publications, and licensed radio and television stations.
  1. Media interviews.

   (1) Properly identified media representatives shall be entitled to interview any prisoner who consents to such an interview. “Properly identified media representative” means any person who presents proof of his or her affiliation with the media.

   (2) The prisoner’s consent must be in writing on a form that includes the following information in Spanish and English:

      (i) the name and organization of the media representative;

      (ii) notification to the prisoner that statements made to the media representative may be detrimental to the prisoner in future administrative or judicial proceedings;

      (iii) notification to the prisoner that he or she is not obligated to speak to the media representative; and

      (iv) notification to the prisoner that he or she may postpone the media interview in order to consult with an attorney or any other person.

   (3) The Department may require the consent of an attorney of record prior to scheduling a media interview with a detainee undergoing examination for competency pursuant to court order.

   (4) The Department may require the consent of an attorney of record or a parent or legal guardian prior to scheduling a media interview with a prisoner under 18 years of age.

   (5) The name of the Department’s media contact shall be published. Media representatives shall direct requests for interviews to this person.

   (6) Interviews shall be scheduled promptly by the Department but not later than 24 hours from a request made between 8 a.m. and 4 p.m. The 24-hour period may be extended if necessitated by the prisoner’s absence from the facility.

  1. Limitation of media interviews.

   (1) The Department may deny, revoke or limit a media interview with a media representative or a prisoner only if it is determined that such interview constitutes a threat to the safety or security of the facility.

   (2) This determination must be based on specific acts committed by the media representative or by the prisoner during a prior visit that demonstrate his or her threat to the safety and security of the facility. Prior to any determination, the media representative or the prisoner must be provided with written notification of the specific charges and the names and statements of the charging parties, and be afforded an opportunity to respond.

   (3) Any determination made pursuant to paragraph (1) of this subdivision shall be made in writing and shall state the specific facts and reasons underlying such determination. A copy of this determination, including the appeal procedure, shall be sent to the Board and to any person affected by the determination within 24 hours of the deter- mination.

   (4) Any person affected by a determination made pursuant to this subdivision may appeal such determination to the Board.

      (i) The person affected by the determination shall give notice in writing to the Board and to the Department of his or her intent to appeal the determination.

      (ii) The Department and any person affected by the determination may submit to the Board for its consideration any relevant material in addition to the written deter- mination.

      (iii) The Board or its designee shall issue a written decision upon the appeal within five business days after it has received notice of the requested review.

§ 1-15 Variances.

(a) Policy. The Department may apply for a variance from a specific subdivision or section of these minimum standards when compliance cannot be achieved or continued. A "limited variance" is an exemption granted by the Board from full compliance with a particular subdivision or section for a specified period of time. A "continuing variance" is an exemption granted by the Board from full compliance with a particular subdivision or section for an indefinite period of time. An "emergency variance" as defined in paragraph (b)(3) of this section is an exemption granted by the Board from full compliance with a particular subdivision or section for no more than 30 days.
  1. Limited, continuing and emergency variances.

   (1) The Department may apply to the Board for a variance when:

      (i) despite its best efforts, and the best efforts of other New York City officials and agencies, full compliance with the subdivision or section cannot be achieved, or

      (ii) compliance is to be achieved for a limited period in a manner other than specified in the subdivision or section.

   (2) The Department may apply to the Board for a continuing variance when despite its best efforts and the best efforts of other New York City officials and agencies compliance cannot be achieved in the foreseeable future because:

      (i) full compliance with a specific subdivision or section would create extreme practical difficulties as a result of circumstances unique to a particular facility, and lack of full compliance would not create a danger or undue hardship to staff or prisoners; or

      (ii) compliance is to be achieved in an alternative manner sufficient to meet the intent of the subdivision or section.

   (3) The Department may apply to the Board for an emergency variance when an emergency situation prevents continued compliance with the subdivision or section. An emergency variance for a period of less than 24 hours may be declared by the Department when an emergency situation prevents continued compliance with a particular subdivision or section. The Board or its designee shall be immediately notified of the emergency situation and the variance declaration.

  1. Variance application.

   (1) An application for a variance must be made in writing to the Board by the Commissioner of the Department as soon as a determination is made that continued compliance will not be possible and shall state:

      (i) the type of variance requested;

      (ii) the particular subdivision or section at issue;

      (iii) the requested commencement date of the variance;

      (iv) the efforts undertaken by the Department to achieve compliance by the effective date;

      (v) the specific facts or reasons making full compliance impossible, and when those facts and reasons became apparent;

      (vi) the specific plans, projections and timetables for achieving full compliance;

      (vii) the specific plans for serving the purpose of the subdivision or section for the period that strict compliance is not possible; and

      (viii) if the application is for a limited variance, the time period for which the variance is requested, provided that this shall be no more than six months.

   (2) In addition to the provisions of paragraph (1) of this subdivision, an application for a continuing variance shall state:

      (i) the specific facts and reasons underlying the impracticability or impossibility of compliance within the foreseeable future, and when those facts and reasons become apparent, and

      (ii) the degree of compliance achieved, and the Department’s efforts to mitigate any possible danger or hardships attributable to the lack of full compliance; or

      (iii) a description of the specific plans for achieving compliance in an alternative manner sufficient to meet the intent of the subdivision or section.

   (3) In addition to the requirements of paragraph (1) of this subdivision, an application for an emergency variance for a period of 24 hours or more, (or for renewal of an emergency variance) shall state:

      (i) the particular subdivision or section at issue;

      (ii) the specific facts or reasons making continued compliance impossible, and when those facts and reasons became apparent;

      (iii) the specific plans, projections and timetables for achieving full compliance; and

      (iv) the time period for which the variance is requested, provided that this shall be no more than thirty days.

  1. Variance procedure for limited and continuing variance.

   (1) Prior to a decision on an application for a limited or continuing variance, the Board shall consider the position of all interested parties, including correctional employees, prisoners and their representatives, other public officials and legal, religious and community organizations.

   (2) Whenever practicable, the Board shall hold a public meeting or hearing on the variance application, and hear testimony from all interested parties.

   (3) The Board’s decision on a variance application shall be in writing.

   (4) Interested parties shall be notified of the Board’s decision as soon as practicable, and no later than 5 business days after the decision is made.

  1. Granting of variance.

   (1) The Board shall grant a variance only if it is presented with convincing evidence that the variance is necessary and justified.

   (2) Upon granting a variance, the Board shall state:

      (i) the type of variance

      (ii) the date on which the variance will commence

      (iii) the time period of the variance, if any, and

      (iv) any requirements imposed as conditions on the variance.

  1. Renewal and review of variance.

   (1) An application for a renewal of a limited or emergency variance shall be treated in the same manner as an original application as provided in subdivisions (b), (c), (d) and (e) of this section. The Board shall not grant renewal of a variance unless it finds that, in addition to the requirements for approving an original application, a good faith effort has been made to comply with the subdivision or section within the previously prescribed time limitation, and that the requirements set by the Board as conditions on the original variance have been met.

   (2) A petition for review of a continuing variance may be made upon the Board’s own motion or by the Department, correctional employees, prisoners or their representatives. Upon receipt of a petition, the Board shall review and re-evaluate the continuing necessity and justification for the continuing variance. Such review shall be conducted in the same manner as the original application as provided in subdivisions (b), (c), (d) and (e) of this section. The Board will review all the facts and consider the positions of all interested parties. The Board will discontinue the variance, if after such review and consideration, it determines that:

      (i) full compliance with the standard now can be achieved; or

      (ii) requirements imposed as conditions upon which the continuing variance was granted have not been fulfilled or maintained; or

      (iii) there is no longer compliance with the intent of the subdivision or section in an alternative manner as required by subparagraph (b)(2)(ii) of this section.

   (3) The Board shall specify in writing and publicize the facts and reasons for its decision on an application for renewal or review of a variance. The Board’s decision must comply with the requirements of subdivision (e) of this section, and, in the case of limited and continuing variances, paragraphs (d)(3) and (4) of this section. Where appropriate, the Board shall set an effective date for discontinuance of a continuing variance after consultation with all interested parties.

   (4) The Board shall not grant more than two consecutive renewals of emergency variances.

§ 1-16 Enhanced Supervision Housing.

(a) Purpose. The primary objective of enhanced supervision housing (ESH) is to protect the safety and security of inmates and facilities, while promoting rehabilitation, good behavior, and the psychological and physical well-being of inmates. To accomplish these objectives, ESH is designed to separate from the general population those inmates who pose the greatest threats to the safety and security of staff and other inmates. It additionally seeks to promote the rehabilitation of ESH inmates by incentivizing good behavior and by providing necessary programs and therapeutic resources.
  1. Policy. An inmate may be confined in ESH if the inmate presents a significant threat to the safety and security of the facility if housed elsewhere. Such a determination shall only be supported by a finding that one of the following has occurred:

   (1) the inmate has been identified as a leader of a gang and has demonstrated active involvement in the organization or perpetration of violent or dangerous gang-related activity;

   (2) the inmate has demonstrated active involvement as an organizer or perpetrator of a gang-related assault;

   (3) the inmate has committed a slashing or stabbing, has committed repeated assaults, has seriously injured another inmate, visitor, or employee, or has rioted or actively participated in inmate disturbances while in Department custody or otherwise incarcerated;

   (4) the inmate has been found in possession of a scalpel or a weapon that poses a level of danger similar to or greater than that of a scalpel while in Department custody or otherwise incarcerated;

   (5) the inmate has engaged in serious or persistent violence; or

   (6) the inmate, while in Department custody or otherwise incarcerated, has engaged in repeated activity or behavior of a gravity and degree of danger similar to the acts described in paragraphs (1) through (5) of this subdivision, and such activity or behavior has a direct, identifiable and adverse impact on the safety and security of the facility, such as repeated acts of arson.

Provided, however, that, where the Department is permitted to consider an inmate’s activity occurring or actions committed at a time when the inmate was incarcerated, such activity or actions must have occurred within the preceding five (5) years. Where the Department is permitted to consider an inmate’s activity occurring or actions committed at a time when the inmate was not incarcerated, such activity or actions must have occurred within the preceding two (2) years.

  1. Exclusions.

   (1) The following categories of inmates shall be excluded from ESH placement:

      (i) inmates under the age of 18;

      (ii) as of January 1, 2016, inmates ages 18 through 21, provided that sufficient resources are made available to the Department for necessary staffing and implementation of necessary alternative programming; and

      (iii) inmates with serious mental or serious physical disabilities or conditions.

   (2) Medical staff shall be permitted to review ESH placements and participate in placement review hearings. Consistent with these regulations, when ESH assignment would pose a serious threat to an inmate’s physical or mental health, medical staff shall have the authority to determine that the inmate shall be barred from ESH placement or shall be moved from ESH to a more appropriate housing unit. This determination may be made at any time during the inmate’s incarceration.

   (3) Any inmate placed in ESH who evidences a mental or emotional disorder shall be seen by mental health services staff prior to or immediately upon ESH placement.

   (4) The total number of inmates housed in ESH shall not exceed 250 at any time.

  1. Conditions, Programming and Services.

   (1) To the extent the Department imposes restrictions on an ESH inmate that deviate from those imposed on inmates in the general population, such restrictions must be limited to those required to address the specific safety and security threat posed by that individual inmate.

   (2) To the extent the Department seeks to limit an ESH inmate’s access to contact visits, a hearing shall be held, as required by subdivision (g) of this section, which shall address the criteria set forth in subdivision (h) of 40 RCNY § 1-09 with regard to both the inmate and any individual visitors with whom the Department wishes to limit contact.

   (3) No later than July 1, 2015, the Department shall provide ESH inmates with both voluntary and involuntary, as well as both in- and out-of-cell, programming aimed at facilitating rehabilitation, addressing root causes of violence, and minimizing idleness.

   (4) All inmates in ESH shall be seen at least once each day by medical staff who shall make referrals to medical and mental health services where appropriate.

  1. Staffing.

   (1) Correction officers assigned to ESH shall receive forty (40) hours of special training designed to address the unique characteristics of ESH and its inmates. Such training shall include, but shall not be limited to, recognition and understanding of mental illness and distress, effective communication skills, and conflict de-escalation techniques.

   (2) At least twenty-five (25) percent of correction staff assigned to ESH shall be assigned to steady posts.

  1. Notice of ESH Placement.

   (1) When it is determined that an inmate should be confined in ESH, that inmate shall be given written notice of such determination within twenty-four (24) hours of placement. Inmates who are unable to read or understand such notice shall be provided with necessary assistance. Such notice shall:

      (i) state the grounds relied on and the facts that support the inmate’s ESH placement; (ii) inform the inmate of the individual restrictions the Department intends to impose during the inmate’s ESH confinement;

      (iii) notify the inmate of the upcoming ESH placement review hearing; and

      (iv) inform the inmate of the right to review, prior to the placement hearing, the evidence relied upon by the Department, to appear at the hearing in person, to submit a written statement for consideration, to call witnesses, and to present evidence.

   (2) [Reserved.]

  1. Placement Review Hearing.

   (1) Within three (3) business days of service of notice on an inmate of initial ESH placement and related restrictions, the Department shall conduct a hearing to adjudicate the inmate’s ESH placement and the individual restrictions proposed. The hearing may not be adjourned except, in extenuating circumstances, by the inmate’s documented request and may in no event be adjourned for longer than five (5) days.

   (2) One or more hearing officers shall conduct the placement review hearing. Department staff who initially recommended the inmate for ESH placement or otherwise provided evidence to support the inmate’s ESH placement shall not be eligible to serve as hearing officers at the inmate’s placement review hearing.

   (3) The placement review hearing shall consist of following:

      (i) a review of the facts upon which the Department relies to place the inmate in ESH pursuant to subdivision (b) of this section, and a determination of whether such facts exist and whether they support, by a preponderance of the evidence, the conclusion that the inmate presents a current significant threat to the safety and security of the facility such that ESH is appropriate;

      (ii) consideration of the time that has elapsed since the occurrence of the activity or behavior relied on by the Department to support ESH placement;

      (iii) a review of the individual restrictions proposed by the Department and a determination of whether each is supported by evidence of the legitimate safety and security concerns related to that individual inmate;

      (iv) consideration of any relevant information provided by medical staff;

      (v) consideration of any credible and relevant evidence submitted or statements made by the inmate at the hearing; and

      (vi) consideration of any other evidence deemed relevant to the ESH status determination or imposition of individual restrictions.

   (4) The inmate shall be permitted to appear at the hearing in person, submit a written statement, call witnesses, and present evidence.

   (5) In the following circumstances, the inmate shall be entitled to the assistance of a hearing facilitator, who shall assist the inmate by clarifying the charges, explaining the hearing process, and assisting the inmate in gathering evidence:

      (i) the inmate is illiterate or otherwise unable to prepare for or understand the hearing process; or

      (ii) the inmate has otherwise been unable to obtain witnesses or material evidence.

   (6) If it is determined that the ESH placement and each related restriction are supported by a preponderance of the evidence, the placement and each supported restriction may be continued. Written notice shall be provided to the inmate outlining the bases for such determinations. If it is determined that ESH placement or imposition of any individual restrictions is unsupported by a preponderance of the evidence, ESH status or unsupported individual restrictions shall be terminated immediately.

  1. Periodic Review of Placement.

   (1) The placement of an inmate in ESH shall be reviewed every forty-five (45) days to determine whether the inmate continues to present a significant threat to the safety and security of the facility if housed outside ESH such that continued ESH placement is appropriate.

   (2) At least twenty-four (24) hours prior to such periodic review, inmates shall be notified of the pending review in writing and of the right to submit a written statement for consideration. Inmates who are unable to read or understand such notice shall be provided with necessary assistance.

   (3) Periodic review of an inmate’s ESH status shall consider the following, with conclusions recorded in a written report made available to the inmate within seven (7) days of the review: (i) the justifications for continued ESH placement;

      (ii) the continued appropriateness of each individual ESH restriction and whether any such individual restrictions should be relaxed or lifted;

      (iii) information regarding the inmate’s subsequent behavior and attitude since ESH placement began, including participation in and availability of programming;

      (iv) information regarding the effect of ESH placement or of individual ESH restrictions on the inmate’s mental and physical health;

      (v) any written statement submitted by the inmate for consideration;

      (vi) any other factors that may favor retaining the inmate in or releasing the inmate from ESH or any other factors that may favor the lifting of individual ESH restrictions or continuing to impose individual ESH restrictions; and

      (vii) if the inmate’s ESH placement is to continue, any actions or behavioral changes that the inmate might undertake to further rehabilitative goals and facilitate the lifting of individual ESH restrictions or ESH release.

   (4) At any time when deemed appropriate, an inmate may be evaluated and recommended for placement in a more appropriate housing unit outside ESH.

  1. Board Review of ESH Implementation.

   (1) No later than sixty (60) days after ESH implementation and every sixty (60) days thereafter, the Department shall submit to the Board information related to implementation of ESH and the inmates housed there. This information shall include, but shall not be limited to:

      (i) the number of inmates housed in ESH, both currently and since implementation;

      (ii) the frequency with which each of the criteria set forth in subdivision (b) of this section is used to support ESH placement;

      (iii) rates of violence in both ESH and the general population since implementation of ESH and rates of violence for comparable time periods prior to ESH implementation;

      (iv) rates of use of force in both ESH and the general population since implementation of ESH;

      (v) programming and mental health resources available to ESH inmates and the extent of inmate participation in each program and resource;

      (vi) training received by correction officers assigned to ESH and the number of steady posts created in ESH;

      (vii) the number of inmates initially assigned to ESH but whose ESH status was terminated in a placement review hearing;

      (viii) the number of inmates released from ESH into the general population through periodic review or other ESH status review mechanisms; and

      (ix) any other data the Department or the Board deems relevant to the Board’s assessment of ESH.

   (2) The Board shall review the information provided by the Department and any other information it deems relevant to the assessment of ESH. Eighteen (18) months after implementation of ESH and no later than two (2) years after implementation of ESH, the Board shall meet to discuss the effectiveness and continued appropriateness of ESH.

§ 1-17 Limitations on the Use of Punitive Segregation.

(a) Policy. As implemented by the Department, punitive segregation is a severe penalty that should not be used under certain circumstances in the Department's facilities. In particular, punitive segregation represents a serious threat to the physical and psychological health of adolescents, with respect to whom it should not be imposed. Moreover, punitive segregation is intended to address a particular offense committed in the course of an inmate's incarceration and should not be imposed in connection with an offense committed by the same inmate during a separate and previous incarceration.
  1. Exclusions.

   (1) The following categories of inmates shall be excluded from punitive segregation:

      (i) inmates under the age of 18;

      (ii) as of January 1, 2016, inmates ages 18 through 21, provided that sufficient resources are made available to the Department for necessary staffing and implementation of necessary alternative programming; and

      (iii) inmates with serious mental or serious physical disabilities or conditions.

   (2) Consistent with these regulations, when assignment to punitive segregation would pose a serious threat to an inmate’s physical or mental health, medical staff shall have the authority to determine that the inmate shall be barred from punitive segregation placement or shall be moved from punitive segregation to a more appropriate housing unit.

   (3) An inmate who is excluded from punitive segregation at the time of an infraction due to age or health status shall not be placed in punitive segregation for the same infraction at a later date, regardless of whether the inmate’s age or health status has since changed.

   (4) Inmates shall not be confined to punitive segregation as punishment for grade 3 offenses.

  1. Due Process.

   (1) Prior to the infraction hearing provided for in paragraph (2) of this subdivision, the inmate shall receive written notice detailing the charges against the inmate and a description of the inmate’s behavior that gave rise to the charges. Inmates who are unable to read or understand such notice shall be provided with necessary assistance. Notice shall be served no later twenty-four (24) hours prior to commencement of the infraction hearing unless the inmate consents to a shorter time period in writing.

   (2) All inmates, except those who qualify for and are placed in pre-hearing detention (PHD), shall be afforded an infraction hearing prior to placement in punitive segregation housing. Inmates who qualify for and are placed in PHD shall be afforded an infraction hearing no later than seven (7) business days after PHD placement, and time spent in PHD prior to the infraction hearing shall count toward the inmate’s punitive segregation sentence.

   (3) Inmates shall be permitted to appear in person, make statements, present material evidence, and call witnesses at infraction hearings.

   (4) In the following circumstances, an inmate shall be entitled to the assistance of a hearing facilitator, who shall assist the inmate by clarifying the charges, explaining the hearing process, and assisting the inmate in gathering evidence:

      (i) the inmate is illiterate or otherwise unable to prepare for or understand the hearing process; or

      (ii) the inmate has otherwise been unable to obtain witnesses or material evidence.

   (5) The Department has the burden of proof in all inmate disciplinary proceedings. An inmate’s guilt must be shown by a preponderance of the evidence to justify punitive segregation placement.

  1. Time limitations on punitive segregation.

   (1) Except where an inmate has committed a serious assault on staff as described in paragraph (4) of this subdivision, no inmate may be sentenced to punitive segregation for more than thirty (30) days for any single infraction.

   (2) Except where an inmate is serving a punitive segregation sentence for a serious assault on staff as described in paragraph (4) of this subdivision, in no event may an inmate be held in punitive segregation longer than thirty (30) consecutive days. Except where an inmate is serving a punitive segregation sentence for a serious assault on staff as described in paragraph (4) of this subdivision, an inmate who has served thirty (30) consecutive days in punitive segregation shall be released from punitive segregation for at least seven (7) days before that inmate may be returned to punitive segregation.

   (3) An inmate may not be held in punitive segregation for more than a total of sixty (60) days within any six (6) month period, unless, upon completion of or throughout the sixty (60) day period, the inmate has continued to engage in persistent, serious acts of violence, other than self-harm, such that any placement other than punitive segregation would endanger inmates or staff.

      (i) In such instances, the Department shall not be required to release the inmate from punitive segregation after sixty (60) days have elapsed.

      (ii) The Chief of Department must approve such extensions of punitive segregation placement in writing and state: (1) the reasons why placement in a less restrictive setting has been deemed inappropriate or unavailable, and (2) why retaining the inmate in punitive segregation is necessary to ensure the safety of inmates or staff.

      (iii) The Department must immediately provide the Board and the relevant Correctional Health Authority with a copy of the Chief of Department’s written approval.

   (4) Inmates sentenced to punitive segregation for an assault on staff that causes staff to suffer one or more serious injuries, as listed under the Department’s definition of “A” Use of Force Incidents, may receive a punitive segregation sentence of up to sixty (60) days for that single infraction.

      (i) The Chief of Department or a designee must approve or disapprove in writing any punitive segregation sentence for a serious assault on staff that exceeds thirty (30) days. The written approval or disapproval shall be sent immediately to the inmate, the Board, and the relevant Correctional Health Authority.

      (ii) While an inmate is serving a punitive segregation sentence for a serious assault on staff that exceeds thirty (30) days, the Department shall not be required to release the inmate from punitive segregation housing after thirty (30) consecutive days.

      (iii) Where an inmate’s punitive segregation sentence for a serious assault on staff exceeds forty-five (45) days, the Chief of Department or a designee shall complete a review of the sentence forty-five (45) days after its commencement to determine whether the inmate could safely be placed in an available alternative housing unit for the remainder of the sentence. The decision, and the reasoning supporting it, shall be stated in writing and immediately sent to the inmate, the Board, and the relevant Correctional Health Authority.

   (5) In instances not covered by subparagraph (iii) of paragraph (4) of this subdivision, whenever forty-five (45) consecutive days of an inmate’s time served in punitive segregation have elapsed, the Chief of Department or a designee shall complete a review of the inmate’s time served on the forty-fifth (45th) day to determine whether the inmate can safely be placed in an alternative housing unit for the remainder of the sentence the inmate is serving. The decision, and the reasoning supporting it, shall be stated in writing and immediately sent to the inmate, the Board and the relevant Correctional Health Authority.

   (6) Daily mental health rounds must be provided to inmates housed in punitive segregation who have been held there longer than thirty (30) consecutive days or have served more than sixty (60) days within a six (6) month period. Such rounds must be documented in writing. Beginning August 1, 2016, the Department shall additionally offer such inmates cognitive behavioral therapy or a similar evidence-based intervention aimed at addressing the root causes of the behavior that led to the inmates’ extended stays in punitive segregation. Such programming shall be developed in consultation with the relevant Correctional Health Authority.

  1. Required out-of-cell time. Inmates confined to punitive segregation as punishment for non-violent or grade 2 offenses must be permitted at least seven (7) out-of-cell hours per day.
  2. Staffing.

   (1) Correction officers assigned to punitive segregation housing shall receive forty (40) hours of special training designed to address the unique characteristics of punitive segregation and its inmates. Such training shall include, but shall not be limited to, recognition and understanding of mental illness and distress, effective communication skills, and conflict de-escalation techniques.

   (2) At least twenty-five (25) percent of correction staff assigned to punitive segregation housing shall be assigned to steady posts.

  1. Time in punitive segregation owed from a previous incarceration. As of the effective date of this section, no inmate shall be assigned to or held in punitive segregation for any time from a separate and previous incarceration for which such inmate was sentenced to but did not serve in punitive segregation.
  2. Reports on punitive segregation.

   (1) No later than sixty (60) days after implementation of enhanced supervision housing provided for in 40 RCNY § 1-16 of this chapter and every sixty (60) days thereafter, the Department shall submit to the Board information related to implementation of required changes to punitive segregation. This information shall include, but shall not be limited to:

      (i) the number of inmates held in punitive segregation and the number of inmates waiting to be held in punitive segregation;

      (ii) data related to the length of punitive segregation sentences and the frequency of the types of offences resulting in punitive segregation sentences;

      (iii) the status of the reduction of punitive segregation sentences from ninety (90) to thirty (30) days and any other efforts to reduce the use of and length of stay in punitive segregation;

      (iv) the status of implementation of the Department’s planned policy to require that an inmate be released from punitive segregation for a minimum of seven (7) days before returning to punitive segregation;

      (v) the number of punitive segregation sentences of thirty-one (31) to forty-five (45) days in duration given to inmates for a serious assault on staff, disaggregated by whether the sentence was approved or disapproved by the Chief of Department or a designee;

      (vi) the number of punitive segregation sentences exceeding forty-five (45) days in duration given to inmates for a serious assault on staff, disaggregated by whether the sentence was approved or disapproved by the Chief of Department or a designee;

      (vii) the number of punitive segregation sentences the Chief of Department or a designee reviewed forty-five (45) days after commencement and the number of instances where, as a result of this review, an inmate was placed in an alternative housing unit for the remainder of the sentence;

      (viii) the number of requests submitted to the Chief of Department to hold an inmate in punitive segregation for more than a total of sixty (60) days within a six (6) month period, disaggregated by whether the request was approved or disapproved by the Chief of Department;

      (ix) the number of inmates who received two (2) or more placements in punitive segregation pursuant to 40 RCNY § 1-17(d)(3);

      (x) the number of inmates currently in Department custody who have, during their current incarceration, been housed in punitive segregation a total of: one (1) to thirty (30) days, thirty-one (31) to sixty (60) days, sixty-one (61) to ninety (90) days, ninety-one (91) to one-hundred-twenty (120) days, and more than one-hundred-twenty (120) days;

      (xi) the number of inmates currently housed in punitive segregation, who have been held there, consecutively, for: one (1) to thirty (30) days, thirty-one (31) to sixty (60) days, sixty-one (61) to ninety (90) days, ninety-one (91) to one-hundred-twenty (120) days, and more than one-hundred-twenty (120) days;

      (xii) a plan and timeline detailing steps necessary to reduce the length of punitive segregation sentences and to reduce the number of inmates housed in punitive segregation;

      (xiii) data related to the amount of recreation and out-of-cell time provided to inmates housed in punitive segregation; and

      (xiv) any other information the Department or the Board deems relevant to the Board’s assessment of punitive segregation in Department facilities.

   (2) No later than June 1, 2016, the Department shall submit to the Board a report analyzing and recommending options to reduce persistent violence committed by inmates housed in or released from punitive segregation that use means other than extending punitive segregation confinement. The report shall:

      (i) detail how its recommended solutions would support the goals of protecting the safety and wellbeing of staff and inmates, promoting the security of Department facilities, and facilitating successful reentry of inmates;

      (ii) describe the measures the Department has already implemented or plans to implement, including programming and housing, as well as other measures it has considered;

      (iii) include an assessment of the pros and cons of each option, and the various potential impacts of implementing each option, including any resources that may be needed; and

      (iv) include a description of research conducted by the Department on effective disciplinary systems and alternatives to punitive segregation and the progress of Department efforts to identify viable alternative programs and locations to safely house and treat violent offenders.

Chapter 4: [Procedures For Consideration of Petitions For Rulemaking Submitted To the Board of Correction]

§ 4-01 Definitions.

(a)  "Petition" shall mean a request or application for the Board of Correction ("the Board") to adopt a rule.
  1. “Petitioner” shall mean the person or entity who files the petition.
  2. “Rule” shall have the same meaning set forth in § 1041(5) of the New York City Charter.

§ 4-02 Scope.

This rule shall govern the procedures by which any person or entity may petition the Board to commence rulemaking pursuant to § 1043(f) of the New York City Charter and the procedure for submission, consideration and disposition of such petitions.

§ 4-03 Procedures for submitting petitions.

(a)  Any person or entity may petition the Board to consider the adoption of a rule.
  1. A petition must contain the following information:

   (1) the rule to be considered, with the proposed language for adoption;

   (2) a statement of the Board’s authority to promulgate the rule and its purpose;

   (3) petitioner’s arguments in support of adoption of the rule;

   (4) the period of time the rule should be in effect;

   (5) the name, address, email address and telephone number of the petitioner or his or her authorized representative;

   (6) petitioner’s signature or that of his or her authorized representative if the petition is submitted on paper or by facsimile.

  1. Any change in the information provided pursuant to 40 RCNY § 4-03(b)(5) shall be communicated promptly in writing to the office of the Board’s Executive Director.
  2. Petitions shall be delivered, mailed or submitted by facsimile or electronic mail to the office of the Board’s Executive Director.

§ 4-04 Procedures for responding to petitions.

(a)  Upon receipt of a petition in proper form, the Executive Director shall promptly forward it to the Board.
  1. Within 60 days from the date a petition is received by the office of the Executive Director, the Chair shall either state in writing the Board’s intention to initiate rulemaking by a specified date, or shall deny the petition in writing, stating the reasons for denial.

   (1) Whenever the Chair decides to initiate rulemaking, the petition shall be made part of the record of the Board meeting at which rulemaking is initiated. In proceeding with rulemaking, the Board shall not be bound by the language proposed by the petitioner, but may amend or modify such proposed language at the Board’s discretion. Neither shall the Board be bound to enact the substance of a petition for which the Chair has decided to initiate rulemaking.

   (2) Whenever the Chair intends to deny a petition, the proposed denial and the reasons therefore shall be promptly provided to the members of the Board. Should a member object to the proposed denial of the petition within 10 days of receiving notice of the Chair’s intention to deny, the petition shall be placed before the full Board for consideration as to whether the petition should be denied or the Board should proceed to rulemaking.

  1. The Chair’s decision to initiate rulemaking, or to deny a petition in the absence of a member’s timely objection, or a decision by the Board to initiate rulemaking or deny a petition, shall be a final decision which is not subject to judicial review.

Chapter 3: Health Care Minimum Standards

§ 3-01 Service Goals and Purpose.

(a) Purpose.

   (1) The following minimum health care standards are intended to insure that the quality of health care services provided to inmates in New York City correctional facilities is maintained at a level consistent with legal requirements, accepted professional standards and sound professional judgment and practice.

   (2) These standards shall apply to health services for all inmates in the care and custody of the New York City Department of Correction (DOC), whether in City Correction facilities or at other health care facilities.

  1. Service goals. Services for the detection, diagnosis and treatment of medical and dental disorders shall be provided to all inmates in the care and custody of the New York City Department of Correction. The Department of Correction and the Health Authorities in consultation with the Department of Health (DOH) and the Health and Hospitals Corporation (HHC) shall design and implement a health care program to provide the following:

   (1) Medical and dental diagnosis, treatment and appropriate follow-up care consistent with professional standards and sound professional judgment and professional practice;

   (2) Management and administration of emergency medical and dental care;

   (3) Regular training and development of health care personnel and correctional staff as appropriate to their respective roles in the health care delivery system; and

   (4) Review and assessment of the quality of health service delivery on an ongoing basis.

  1. Definitions.

   Chief Correctional Officer. “Chief Correctional Officer” refers to the highest ranking correctional official assigned to a facility (usually a warden).

   Chronic Care. “Chronic care” is service rendered to an inmate over a long period of time. Treatment for diabetes, hypertension, asthma, and epilepsy are examples thereof.

   Convalescent Care. “Convalescent care” refers to services rendered to an inmate to assist in the recovery from illness or injury.

   Emergency. “Emergency” medical or dental care refers to care for an acute illness or an unexpected health need that cannot be deferred until the next scheduled sick call or clinic without jeopardy to the inmate’s health or causing undue suffering.

   Facility. “Facility” refers to any jail which operates as its own command or to any jail annex which is not within walking distance of the parent facility.

   Flow Sheet. “Flow sheet” refers to a document which contains all clinical and laboratory variables on a problem in which data and time relationships are complex (e.g., sequential fasting blood sugars in the diabetic inmate).

   Health Authority. “Health Authority” shall refer to any health care body designated by New York City as the agency or agencies responsible for health services for inmates in the care and custody of the New York City Department of Correction. When the responsibility is contractually shared with an outside provider this term shall also apply.

   Health Care Personnel. “Health care personnel” refers to professionals who meet qualifications stipulated by their profession and who possess all credentials and licenses required by New York State law. Medical personnel refers to physicians, physician assistants and nurse practitioners.

   Health Record. “Health record” refers to a single medical record that contains all available information pertaining to an inmate’s medical, mental health and dental care. Unless otherwise specified this record refers to a jail-based health record, not the hospital record, which is separate.

   Sick-Call. “Sick-call” refers to an encounter between an inmate and health care personnel for the purpose of assessing and/or treating an inmate’s medical complaint.

   Special Needs. “Special needs” refers to inmates requiring chronic care (see definition 6), convalescent care (definition 7) or skilled nursing care.

§ 3-02 Access to Health Care Services.

(a) Policy. The Department of Correction and the Health Authority shall be responsible for the design and implementation of written policies and procedures which ensure that all inmates have prompt and adequate access to all health care services. Services must be available, consistent with § 1-01 of the Minimum Standards for New York City Correctional Facilities.
  1. Access to Care.

   (1) Every facility must inform all inmates of their right to health care and the procedures for obtaining medical attention, as described in 40 RCNY § 3-04(b)(6).

   (2) No inmate may be punished for requesting medical care or for refusing it.

   (3) Under no circumstances shall an inmate’s access to any health care service, including but not limited to those services described in these standards, be denied or postponed as punishment.

   (4) Correctional personnel shall never prohibit, delay, or cause to prohibit or delay an inmate’s access to care or appropriate treatment. All decisions regarding need for medical attention shall be made by health care personnel.

   (5) Inmates shall not be discriminated against, with regard to treatment, on the basis of their medical diagnoses.

   (6) Any correctional personnel who knows or has reason to believe that an inmate may be in need of health services shall promptly notify the medical staff and a uniformed supervisor.

   (7) Staffing levels in the jail clinics, jail infirmaries and prison hospital wards shall be adequate in numbers and types to insure that all standards described here are met. Staffing levels refers to both clinical and correctional personnel.

   (8) The Health Authority shall develop policies and procedures to insure that inmates have access to second medical opinions regarding clinical recommendations.

  1. Sick-Call.

   (1) Sick-call shall be available at each facility to all inmates at a minimum of five days per week within 24 hours of a request or at the next regularly scheduled sick-call. Sick-call need not be held on City holidays or weekends. Facilities with capacities of over 100 people, must provide sick-call services on-site in medical treatment areas. (As defined in 40 RCNY § 3-06(b)).

   (2) Sick-call is to be conducted by a physician or under the supervision of a physician.

      (i) Correctional personnel shall not prevent or delay or cause to prevent or delay an inmate’s access to medical or dental services.

      (ii) Correctional personnel will not diagnose any illness or injury, prescribe treatment, administer medication other than that described in 40 RCNY § 3-05(b)(2)(iii), or screen sick-call requests.

   (3) Requests for access to health services shall not be denied based on any prior requests.

   (4) The Department of Correction shall provide sufficient security for inmate movement to and from health service areas.

   (5) Adequate records shall be maintained daily which are distinguishable by housing area on a form developed by the Department of Correction. These records shall be maintained for at least three (3) years. The form shall include the following:

      (i) the names and number of inmates requesting sick call;

      (ii) the names and numbers of inmates arriving in the clinic; and

      (iii) the names and number of inmates seen by health care personnel.

   (6) The use of a sick-call sign up sheet shall not preclude the use of sick-call by inmates who are not on the list.

  1. Emergency Services.

   (1) All inmate requests for emergency medical or dental attention shall be responded to promptly by medical personnel. This shall include a face to face encounter between the inmate requesting attention and appropriate health care personnel. All health care and correctional personnel must be familiar with the procedures for obtaining emergency medical or dental care, with the names and telephone numbers of people to be notified and/or contacted readily accessible.

   (2) Correctional personnel who know or have reason to believe that an inmate is in need of emergency health services shall make the appropriate notifications pursuant to 40 RCNY § 3-02(d)(5).

   (3) The Department of Correction, with the advice and agreement of the Health Authority, shall prepare and implement written policies and defined procedures which shall be posted in every facility and include arrangements for, at least, the following:

      (i) emergency evacuation of an inmate from the facility when required;

      (ii) use of an appropriate emergency medical vehicle;

      (iii) use of a designated hospital emergency unit;

      (iv) security procedures for the immediate transfer of inmates when necessary; and

      (v) procedures for providing for transfer of inmates within time guidelines established by the Health Authority.

   (4) Any correctional facility with a rated capacity of less than 100 inmates must have an agreement with one or more health care providers to provide emergency medical services and must have at least one correctional personnel on each housing unit certified in Cardio-pulmonary resuscitation (CPR).

   (5) All uniformed correctional personnel shall be informed of and familiar with all written procedures pertaining to emergency health services.

   (6) In each facility, the telephone numbers of the control room and the medical clinic shall be posted prominently at each correctional officer station.

   (7) Medical personnel, with current CPR certification, trained in the provision of emergency health care shall be present at all times in each facility that has a rated capacity of 100 or more inmates. Whenever possible, health care personnel should be trained and certified in CPR.

   (8) In the case of serious illness or injury to an inmate, all reasonable attempts shall be made by the Department of Correction to notify the next of kin or legal guardian of the inmate within the time frames established for reporting unusual incidents.

   (9) The Health Authority shall determine the types and quantities of emergency equipment and supplies required to be available within each correctional facility in order to provide adequate emergency services and shall have written protocols regarding emergency care. An inventory shall be submitted to the Board of Correction within 90 days of implementation of the standards and updated annually or more frequently as determined by the Health Authority.

      (i) all emergency health equipment and supplies shall be inventoried and inspected by health services personnel at least twice each year, or more frequently as determined necessary by the Health Authority to ensure that such equipment and supplies are in good working order.

      (ii) all emergency equipment and supplies shall be easily accessible to appropriate personnel.

   (10) A uniform logbook shall be designed and used by the Department of Correction to document all requests for emergency health care. This logbook shall be maintained in the clinic and shall contain, but not be limited to the following information:

      (i) name, commitment number/book and case number, housing location of the inmate, and the location of the incident;

      (ii) the date and time of referral and the referring officer;

      (iii) the time of inmate arrival in clinic or in the event that medical personnel respond to an area outside of the clinic, the time medical personnel leave the clinic; and

      (iv) the time the inmate is examined by health care personnel.

  1. Infirmaries.

   (1) Infirmaries, with discrete nursing stations and treatment area(s), shall be utilized to provide overnight accommodations and health care services of limited duration to inmates in need of close observation or treatment of health conditions which do not require hospitalization. Housing areas shall not be used for a combination of general population and infirmary housing at any one time.

   (2) At designated facilities, The Health Authority and Department of Correction shall develop and implement written policies and procedures for the management of infirmaries that are consistent with professional standards and legal requirements. Such procedures shall incorporate at least the following;

      (i) allocation of space and beds to meet the needs of the inmates in DOC custody as determined by the Health Authority and other applicable regulatory agencies;

      (ii) accommodations for providing appropriate emergency services and the timely transfer of inmates to hospital and specialty services as consistent with 40 RCNY § 3-02(d)(3) and § 3-02(f)(1) and § 3-02(f)(2); and

      (iii) provision of 40 RCNY § 3-02 adequate space and physical plant to operate infirmary related services (such as communicable disease isolation where applicable).

   (3) The Health Authority shall develop and implement written policies that incorporate the following:

      (i) maintenance and inventory of sufficient supplies, material, and equipment to provide proper and timely services to inmates;

      (ii) clinical criteria for determining the eligibility of inmates for infirmary housing;

      (iii) appropriate methods for a daily evaluation of the medical condition of each inmate;

      (iv) supervision of the infirmary 7 days per week, 24 hours per day by nurses, and other health care personnel as sufficient to meet the established needs of the inmates; and

      (v) availability of an adequate number of medical personnel 7 days per week, 24 hours per day to provide appropriate coverage, including daily rounds on infirmary patients.

   (4) Only health care personnel shall determine, after an examination of the inmate, if an inmate’s condition necessitates admission to the infirmary.

      (i) inmates shall be discharged from the infirmary only upon the written authorization of medical personnel.

      (ii) correctional personnel shall not interfere with an inmate’s access to infirmary services or the duration of confinement in the infirmary and shall transfer inmates to and from infirmaries promptly when so requested by health care personnel.

   (5) Infirmaries shall be designed and staffed so that inmates confined therein are within the sight or sound of health care personnel at all times.

   (6) Adequate records for each infirmary admission, evaluation, and discharge shall be maintained as part of each inmate’s health record as consistent with applicable requirements of 40 RCNY § 3-07(b) and 40 RCNY § 3-07(c).

   (7) Sufficient security measures shall be provided continuously in the infirmary to assure the health and safety of all inmates and health care personnel who provide services to such inmates.

  1. Outpatient Specialty Clinics.

   (1) Outpatient specialist services shall be provided to inmates in time frames specified by the referring medical personnel upon the written determination of a physician or dentist that the treatment appropriate to the inmate’s health care need is not available in the correctional facility or cannot adequately be provided at such facility. In the event that the inmate has previously been treated by the specialty clinic physician, the specialty clinic physician shall determine the medically appropriate time for the return visit(s).

      (i) In instances where the specialty clinic physician determines the time period or date for a follow-up appointment, the jail-based physician may alter that time provided that the change in time is not medically inappropriate and shall inform the inmate of the proposed change. If the change is not medically required, the new appointment date shall be scheduled for the next available clinic, or in the alternative, shall not be scheduled for a time period greater than the original time period (for example, if the original appointment was scheduled for within one week, the rescheduled appointment cannot be more than one week from the original appointment).

      (ii) The reasons for any change in the original plan must be indicated in the inmate’s medical record with clear reasons for the change.

   (2) The Health Authority and the Department of Correction shall devise a written plan for the timely delivery of inmates to specialty clinics. This plan shall include, but not be limited to the following procedures:

      (i) maintenance of a current list of community clinics, approved by the Health Authority which can adequately provide specialist care and treatment;

      (ii) the scheduling requirements for specialist services and the hours of operation;

      (iii) the use of an appropriate vehicle for the timely transfer of inmates to and from specialty clinics;

      (iv) security procedures and escort requirements appropriate for transferring the inmate to and from the outpatient health clinic, including shackling procedures which are medically appropriate; and

      (v) the transfer of appropriate health records and/or other pertinent information to assure proper follow-up care for the inmate, and to avoid unnecessary duplication of tests and examinations, pursuant to 40 RCNY § 3-08(b)(4).

   (3) The variety of outpatient services available to inmates shall be no different than those available to civilian patients.

   (4) Correctional or health care personnel shall not deny or unreasonably delay, or cause to deny or unreasonably delay an inmate’s access to specialty services at any outpatient clinic.

      (i) sufficient Escort Officers shall be provided within the clinic or hospital to ensure that an inmate’s access to specialty clinics and related diagnostic units is not denied or unreasonably delayed.

  1. Medical Isolation.

   (1) Inmates in medical isolation will receive the same rights, privileges and services set forth in these standards for inmates not in isolation, provided that the exercise of such rights, privileges and services does not pose a threat to the health, safety, or well being of any other inmate, correctional staff or health care personnel. Access to rights, privileges and services of and procedures regarding inmates in segregation for mental health observation is governed by the Board of Correction Mental Health Minimum Standards for New York City Correctional Facilities.

   (2) Medical personnel shall assess the condition of each inmate so segregated at least once each 24 hour period. At least once each week rounds on all segregation inmates must be made by a physician.

   (3) Health care personnel must maintain a daily log that includes the name of medical personnel who made rounds on inmates in isolation and lists those inmates who required further attention in the clinic. These logs are the property of the Health Authority and subject to the confidentiality provisions described in 40 RCNY § 3-08(c). Medical services provided to individual inmates must be noted in the inmates’ health records.

   (4) Upon request of the medical staff, inmates requiring further medical evaluation outside of the housing area shall be escorted to the clinic promptly for medical attention.

   (5) The Health Authority shall develop written policies and procedures regarding the care of inmates in medical isolation. These procedures shall include that an inmate may be placed in medical isolation only upon the determination of medical personnel that isolation of an inmate is the only means to protect other people from a serious health threat, subsequent to the examination of such inmate and pursuant to 40 RCNY § 3-06(1)(2). This disposition by the medical personnel shall be in writing in the health care record and shall state:

      (i) the name of the inmate; and

      (ii) the facts and medical reasons for the isolation;

      (iii) the date and time of isolation;

      (iv) the duration of isolation, if known; and

      (v) any other special precautions or treatment deemed necessary by the medical personnel. Upon determination by a physician that an inmate in medical isolation no longer presents a serious threat to the health of any person that inmate shall be released from such special housing after the appropriate correctional personnel are advised.

  1. Special Needs.

   (1) The Health Authority in consultation with other agencies as required will develop written policies and defined procedures insuring appropriate care of inmates with special needs requiring close medical supervision, including chronic care and convalescent care or skilled nursing care.

   (2) A written treatment plan, developed by the health care provider, supervised by medical personnel, must exist for each special needs inmate. The plan, to be included in the health record, may include but need not be limited to instructions about diet, exercise, medication, the type and frequency of laboratory and diagnostic testing, and the frequency of follow-up for medical evaluation and adjustment of treatment modality.

   (3) When clinically appropriate, the treatment plan shall prescribe inmates access to the range of supportive and rehabilitative services (such as physical therapy and rehabilitation therapy), that the treating medical personnel deems appropriate.

   (4) Rehabilitation services shall be available at in-jail clinics or through the outpatient clinics at off-site facilities, as appropriate.

  1. Hospital Care.

   (1) Hospital based care shall be provided for inmates in need of hospital care consistent with applicable sections of the State Health Code. The Health Authority in conjunction with the Department of Health, Health and Hospitals Corporation, and other relevant providers, shall have a written plan defining admission and discharge procedures for appropriate levels of care. These procedures shall insure that inmates are not transferred to and from health care settings unnecessarily.

   (2) Services provided to inmates in acute care, chronic care or other non-jail health facilities must meet all applicable subdivisions of these standards.

  1. Punitive Segregation.

   (1) The Health Authority shall develop policies and procedures governing the medical attention for inmates in punitive segregation. These policies shall include the requirements of 40 RCNY § 3-02(g)(2)-(4). In addition, upon determination by a physician that the health of an inmate in punitive segregation will be adversely affected by such housing, the inmate shall be released from punitive segregation housing after the appropriate correctional personnel is advised.

§ 3-03 Training and Continuing Education.

(a) Policy. There shall be a written program for the orientation, training and continuing education of correctional and health care personnel to ensure the employment or assignment of qualified personnel and the continuous delivery of quality health care.
  1. Health Care Personnel.

   (1) The Health Authority shall be responsible for the following:

      (i) ensuring that all health service professionals are appropriately credentialed;

      (ii) monitoring verification of continued maintenance of licensure and/or certification of professional health care personnel, including participation in continuing education programs as required by their professions.

   (2) Written job descriptions approved by the Health Authority shall define the specific duties and responsibilities of health care personnel who provide health care in the facilities. Such job descriptions shall be reviewed on a periodic basis as determined by the Health Authority, but never to exceed one year.

   (3) The following shall only be performed by health care personnel and shall not be performed by correctional personnel or inmates, except as provided under 40 RCNY § 3-05(b)(2)(iii):

      (i) providing direct patient care services;

      (ii) scheduling health care appointments;

      (iii) determining access of (other) inmates to health care services;

      (iv) handling of unsealed health records except in medical emergency situations and only upon the request of health care personnel;

      (v) handling or having access to surgical instruments, syringes, needles, medications; or

      (vi) operating medical equipment.

  1. Training.

   (1) A written plan developed by the Health Authority shall require all health care personnel to participate in orientation and training appropriate to their specific health care delivery activities and job descriptions, and required by their respective disciplines and licensing bodies. This shall include training in mental health screening as described in the Mental Health Minimum Standards. The plan shall define the frequency of ongoing training for all health care personnel.

   (2) Written policy and a training program for correctional staff shall be established and approved jointly by the Health Authority and the Department of Correction determining the type of training for new staff and the type and frequency of training and continuing education for all correctional staff regarding, but not limited to, instruction in the following:

      (i) how to recognize medical emergencies;

      (ii) administration of first aid and certification in cardiopulmonary resuscitation (CPR) for sufficient staff to meet the standard described in the Mental Health Minimum Standards;

      (iii) how to obtain medical care for inmates in emergency and non-emergency situations.

      (iv) rules and regulations regarding health services and the layout of each facility in which they work.

   (3) The Department of Correction will ensure that the correctional staff are trained in those areas described in 40 RCNY § 3-03(c)(2).

§ 3-04 Screening.

(a) Policy. Screening procedures shall be developed and implemented which promote timely identification of immediate needs of the inmate and of public health concerns for the institution. The initial screening shall also establish a medical baseline for ongoing care.
  1. Intake screening.

   (1) Screening for health purposes is to be performed on all inmates upon their arrival at the initial receiving correctional facility. Screening shall be conducted by medical personnel prior to housing.

   (2) The Health Authority shall develop written policies and procedures determining the topics to be reviewed during intake screening. Such review shall include but not be limited to the following:

      (i) a history of present illnesses and past medical history including dental, vision, mental health and hearing problems, an immunization history, as well as communicable diseases such as venereal disease and tuberculosis;

      (ii) a drug history inquiring into the use of alcohol and other addictive substances including types of drugs used, mode of use, amounts used, date of last use and a history of problems which may have occurred after ceasing use, such as convulsions;

      (iii) inquiry into and, where appropriate verification of medication taken and special treatment requirements and planned procedures for inmates with significant health problems;

      (iv) recording of height, weight, pulse, blood pressure, temperature;

      (v) physical examinations and administering of tests held to be appropriate by the screening medical personnel, including but not necessarily limited to:

         (A) tuberculin skin test, if no history of prior positive reaction, if positive to be followed by chest x-ray.

         (B) urinalysis dipstick test for glucose, ketones, blood, protein, and bilirubin;

         (C) serologic test for syphilis;

         (D) gonorrhea culture for men if clinically appropriate, and gonorrhea and chlamydia screening for all women;

         (E) rectal exams for all inmates over 40 years old.

      (vi) observation of behavior which includes alertness, orientation, mood, affect, apparent signs of drug/alcohol withdrawal, and suicidal and homicidal ideation;

      (vii) observation of body deformities and ease of movement;

      (viii) observation of condition of skin, including trauma, major and/or unusual markings, bruises, lesions, jaundice, rashes and infestations, and needle marks or other indications of drug abuse;

      (ix) observation of other health problems as designated by the screening physician or Health Authority.

      (x) obstetrical and gynecological histories, pap smears and pregnancy tests for women.

   (3) The results of each inmate’s screening examination shall be reviewed by health care personnel and mental health staff when appropriate and one of the following actions shall be taken:

      (i) referral to an appropriate health care service on an emergency basis; or

      (ii) clearance for housing with follow-up scheduled later with the appropriate health care service, if required; or

      (iii) placement in specialized housing such as infirmary or mental observation. A referral to mental observation housing shall be reviewed by mental health staff on the next tour that mental health staff are on-site.

   (4) Intake screening for transfers may be limited to a review of the previous screening results by health care personnel, but must be completed prior to housing. A full screening need not be conducted except where any of the following apply:

      (i) a copy of the previous intake screening form does not accompany the transferee’s arrival or is lost, or illegible;

      (ii) the accompanying form is not in compliance with standard format or procedures as determined by the Health Authority pursuant to 40 RCNY § 3-07(b); or

      (iii) medical personnel reviewing the chart determines an inmate must be seen.

   (5) Initial intake screening results shall be recorded on a standard printed form approved by the Health Authority.

   (6) At the time of intake, all inmates shall receive written communication to be approved by the Health Authority, and written and distributed by DOC in English and Spanish describing available medical and dental services, the confidentiality of those services and the procedures for gaining access to them.

      (i) the Department of Correction shall make provisions to assure that procedures for gaining access to medical and dental services are verbally explained to illiterate inmates and that inmates whose native language is other than English or Spanish are given prompt access to translators for the explanation of these procedures.

   (7) The new admission intake screening must be completed within 24 hours of admission to DOC custody. A designated person at the Health Authority and at the Department of Correction shall be notified in writing whenever a newly admitted inmate does not receive intake screening within 24 hours of admission to DOC.

§ 3-05 Pharmaceutical Services.

(a) Policy. Written policies and procedures pertaining to pharmaceutical services, that are consistent with professional practices and in accordance with all applicable federal, state and local laws, shall be established and implemented.
  1. Management.

   (1) All written policies and procedures for the proper management of pharmaceuticals shall be established by the Health Authority in accordance with all applicable law. This plan shall include, but not be limited to the following:

      (i) a formulary specifically developed for both prescribed and non-prescribed medications stocked by the facility;

      (ii) procedures which account for receipt, dispensation, distribution, administration, and disposal of medication;

      (iii) periodic inventory of controlled substances as defined by the Drug Enforcement Administration of the United States Department of Justice;

      (iv) periodic inventory of all other medication retained in a facility on a schedule established by the Health Authority to insure that medications do not expire;

      (v) appropriate security and storage of all medications and medical supplies including needles and syringes; and

      (vi) maintenance of adequate supply of all regularly used drugs.

   (2) Access to prescription medication shall be limited to only those persons with written authority of the Health Authority or those designated by them. Prescription medication for inmates shall be prescribed, dispensed and administered only by physicians, physician’s assistants, nurse practitioners, nurses, pharmacists or other health care personnel properly trained and in compliance with State and Federal law.

      (i) Prescription medication may be prescribed, dispensed and administered only when clinically indicated and consistent with a treatment plan.

      (ii) Controlled substances or drugs whose toxic dose is close to the therapeutic dose shall be administered in liquid or powdered form whenever possible and when clinically appropriate.

      (iii) Non-prescription analgesic medication may be distributed by Correction Officers in the housing areas in accordance with written guidelines approved by the Health Authority, and the Department of Correction.

   (3) All administered medication shall be documented and maintained on records satisfactory to the Health Authority and shall consist of the following:

      (i) the name of the inmate;

      (ii) the name of the dispenser;

      (iii) the name of the prescriber;

      (iv) the name of the drug;

      (v) the time of day and date the medication is dispensed;

      (vi) the date the prescription expires;

      (vii) directions for administering the medication; and

      (viii) other information deemed necessary by the Health Authority to facilitate proper use.

   (4) All medication prescribed and dispensed to inmates shall be administered in accordance with the prescriber’s written directions and only up to the expiration date of the specific item. The Health Authority shall write policies and procedures that insure the prompt availability of non-formulary drugs and continuity of medication between health service sites.

   (5) No inmate may be prescribed a controlled substance for more than two weeks unless determined to be necessary by a physician or authorized health care personnel after a thorough re-evaluation of the inmate’s condition. There shall be exceptions for 21 day methadone and 30 day phenobarbital protocols.

   (6) Written policies and procedures will be developed by the Department of Correction and the Health Authority to insure that inmates on medications can receive them if they are scheduled to be in court or at another facility at the time that medications are administered.

   (7) Policies and procedures, developed by the Health Authority shall be implemented to insure that inmates who refuse significant medications are counseled on the medical consequences of refusal. Inmates must be offered subsequent administration if re-prescribed by medical personnel.

§ 3-06 Treatment.

(a) Policy. Adequate health care, including follow-up care, shall be provided to inmates in an environment which facilitates care and treatment. Such care and treatment shall be provided by health care personnel in a timely fashion and shall be consistent with accepted professional standards and legal requirements.
  1. Treatment Area.

   (1) Each correctional facility with a capacity of over one hundred shall establish and maintain a discrete medical treatment area (clinic) which is in accordance with all State, Federal, and local laws and all other applicable legal requirements, except where 40 RCNY § 3-06(b)(5) applies.

   (2) The Health Authority shall establish written criteria defining the following:

      (i) the equipment, supplies and materials necessary in each clinic to provide quality health treatment and appropriate specialty care, where applicable; and

      (ii) the number of health care personnel required to provide effectively for the needs of the inmate population within appropriate time frames.

   (3) At a minimum, the medical treatment areas in each clinic shall be equipped with the following:

      (i) hot and cold running water in each exam room;

      (ii) adequate lighting in each exam room;

      (iii) an examination table;

      (iv) an appropriate receptacle for infectious waste in accordance with local laws;

      (v) sterilization equipment as needed;

      (vi) adequate space to provide privacy for all encounters between health care personnel and inmates;

      (vii) acceptable heating, air-conditioning and ventilation;

      (viii) soap and paper towels, and

      (ix) all other equipment, supplies and materials deemed appropriate by the Health Authority pursuant to 40 RCNY § 3-06(b)(2).

   (4) Health care equipment, supplies, and materials shall be placed in an area which is easily accessible to health care personnel. Equipment used for treating inmates shall function properly and safely at all times.

   (5) Medical treatments or physical examinations shall not occur outside of appropriate treatment areas described by 40 RCNY § 3-06(b)(2) and 40 RCNY § 3-06(b)(3), except as needed in the event of an acute medical emergency.

  1. Dental Services.

   (1) Quality dental care necessary to maintain an adequate level of dental health shall be available to each inmate under the direction and supervision of a dentist licensed in New York State.

      (i) emergency dental care shall be provided as described in 40 RCNY § 3-02(d).

      (ii) a dental examination shall be offered within three weeks for each inmate who so requests or upon referral by other health care personnel unless the inmate refuses the scheduled exam. There shall be a follow-up plan developed to insure that necessary services are provided in a timely fashion. In-clinic refusals or no-shows shall be documented in the inmate’s health record.

      (iii) the Department of Correction shall be responsible for ensuring that requests for access to non-emergency dental services are communicated to dental health care personnel within two working days of receipt by Department of Correction. In the event that dental personnel are not on duty, an inmate’s request will be communicated to health care personnel, who in turn will be responsible for conveying the request to dental personnel on their next work day.

   (2) A dental examination shall include, but not be limited to, the following:

      (i) an examination of the internal and external structure of the mouth to detect abnormal functioning, diseases of the mucous membranes and jaws, and diseases of the teeth and supporting structures;

      (ii) diagnostic X-rays when deemed necessary by the dentist;

      (iii) testing of the pulp and other tissues;

      (iv) caries susceptibility;

      (v) cancer smears, as indicated;

      (vi) taking or reviewing a dental history and noting decayed, missing, and filled teeth; and

      (vii) education in proper dental hygiene.

   (3) Dental treatment, not limited to extractions, shall be provided when the health or comfort of the inmate would otherwise be adversely affected for an unreasonable length of time as determined by the dentist after reviewing the results of a dental examination. Treatment may include, but not be limited to, the following:

      (i) relief of pain and treatment of acute infections;

      (ii) removal of irritating conditions which may lead to malignancies;

      (iii) treatment of related bone and soft tissue diseases;

      (iv) repair of injured or carious teeth;

      (v) replacement of lost teeth and restoration of function;

      (vi) oral prophylaxis;

      (vii) endodontics;

      (viii) oral surgery; and

      (ix) periodontics.

   (4) Dental treatment shall be conducted within a reasonable time as determined by the results of the dental examination.

   (5) A full health record must be available to the treating dentist at the time of treatment if requested by the dentist or deemed necessary by health care personnel.

   (6) Adequate dental records of each inmate’s visit shall be maintained in the health record, including the following:

      (i) date of the visit;

      (ii) results of the dental examination;

      (iii) treatment planned or provided where appropriate;

      (iv) follow up plans if any; and

      (v) name and signature of the dentist.

   (7) Only a dentist or a dental hygienist licensed to practice in New York State may conduct dental examinations. Only a dentist so licensed may provide dental treatment.

      (i) correctional personnel will not screen requests for dental services.

      (ii) no person shall deny or in any way delay an inmate’s request for access to dental services.

   (8) A daily record or log shall be maintained by the Health Authority which lists the following:

      (i) the names and number of inmate requests for dental services;

      (ii) the names and number of inmates brought to the dental clinic; and

      (iii) the names and number of inmates seen by dental personnel.

  1. Vision and Eye Care Services.

   (1) The Health Authority shall establish written policies and procedures to provide vision and eye care services to inmates in need of such services.

      (i) All inmates who in the opinion of medical personnel require vision and eye care services beyond that which is provided during the intake screening, shall be so referred and provided.

      (ii) Inmates whose eyeglasses are broken, lost, or otherwise unavailable shall be entitled to a vision examination.

   (2) If determined after an eye examination that an inmate is in need of eyeware, the Health Authority shall be responsible for providing the inmate with such eyeware.

   (3) All incoming inmates who are in possession of corrective eyeware shall be allowed to retain such unless otherwise determined by health care personnel.

   (4) Records shall be maintained in the inmate’s medical chart of all ophthalmologic, optometric, and vision services. Such records will include at least the following:

      (i) results of vision examinations conducted in addition to initial screening;

      (ii) treatment or medication prescribed and follow-up plans; and

      (iii) the name of the treating ophthalmologist/ optometrist.

   (5) A daily log shall be maintained by the Health Authority to document the following:

      (i) the names and number of inmates referred to or requesting vision and eye care services; and

      (ii) the names and number of referrals and requests honored.

   (6) Eye and vision examinations and treatment shall be conducted only by an ophthalmologist or an optometrist licensed in New York State.

  1. Pregnancy and Child Care.

   (1) All pregnant inmates shall receive comprehensive counseling, assistance, and medical care consistent with professional standards and legal requirements.

   (2) A pregnant inmate shall be provided with appropriate and timely prenatal and postnatal care including but not limited to the following:

      (i) gynecological and obstetrical care;

      (ii) medical diets for prenatal nutrition;

      (iii) all laboratory tests as deemed necessary by medical personnel; and

      (iv) special housing as deemed necessary by medical personnel.

   (3) Upon request, and in accordance with all applicable laws, female inmates shall be entitled to receive abortions in an appropriately equipped and licensed medical facility within a reasonable time-frame. The following conditions shall apply to abortion services at a hospital:

      (i) subsequent to consultation with a licensed physician, the voluntary informed consent of the inmate shall be obtained as pursuant to 40 RCNY § 3-06(j) prior to the procedure; and

      (ii) the procedure shall not be performed in the correctional institution.

   (4) The Health Authority shall make all reasonable arrangements to ensure that child births take place in a safe and appropriately equipped medical facility outside of the correctional facility.

   (5) If an inmate decides to keep her child, necessary child care will be provided as consistent with applicable section(s) of the New York Correction Law and all other legal requirements and consistent with Department of Correction policies governing the nursery program.

   (6) Upon request, pregnant inmates shall be provided access to adoption or foster care services through the Department of Correction’s Social Service Unit. Under no circumstances will correctional or health care personnel delay or deny an inmate access to such services or force an inmate to utilize either service against her will.

      (i) if the inmate decides on adoption or foster care for the new born child, referral services with the New York City Department of Social Services will be promptly provided for planning and placement of the infant.

   (7) The Health Authority and the Department of Correction shall insure that nursing mothers admitted to the Department of Correction are screened for eligibility for the nursery program with appropriate speed. There shall be written policies and procedures defining the program and criteria for admission to and discharge, including grounds for removal from the program.

  1. Diagnostic Services.

   (1) Written policies and procedures pertaining to diagnostic services, including radiology, pathology, and other medical laboratory services shall be developed and implemented by the Health Authority within the correctional facilities in accordance with legal requirements, accepted professional standards and sound professional judgment and practice.

   (2) Pathology and medical laboratory procedures and policy shall include but not be limited to the following:

      (i) conducting laboratory tests appropriate to the inmate’s needs;

      (ii) performing tests in a timely and accurate manner;

      (iii) prompt distribution and review of test results and maintaining copies of results in the laboratory and in the inmate’s health record;

      (iv) calibration of equipment on a periodic basis;

      (v) validation of test results through use of standardized control specimens or laboratories;

      (vi) receipt, storage, identification and transportation of specimens;

      (vii) maintenance of complete descriptions of all test procedures performed in the laboratory including sources of reagents, standards, and calibration procedures; and

      (viii) space, equipment and supplies sufficient for performing the volume of work with optimal accuracy, precision, efficiency, and safety.

   (3) Policies and procedures for the delivery of radiology services within the correctional facilities shall be established by the Health Authority and shall include but not be limited to the following:

      (i) appropriate radiographic or fluoroscope diagnostic and treatment services;

      (ii) interpreting x-ray films and other radiographs, and supplying reports in a timely manner;

      (iii) maintaining duplicate reports for services and retaining film in the radiology department for a period of time that is in accordance with all applicable laws;

      (iv) maintaining an adequate record of all examinations performed on each inmate in a separate log and as part of the inmate’s health record; and

      (v) when appropriate, prompt referral to necessary off-site radiology services.

   (4) Safety issues regarding all radiology services shall be explained to all appropriate health personnel. Policies and procedures addressing these aspects shall include, but not be limited to, the following:

      (i) performing radiology services only upon the written order of medical personnel or a dentist which contains the reason for the procedure;

      (ii) limiting the use of any radioactive materials to qualified health care personnel;

      (iii) regulating the use, removal, handling, and storage of any radioactive material;

      (iv) precautions against electrical, mechanical, and radiation hazards;

      (v) instruction to health care and correctional personnel in safety precautions and in the handling of emergency radiation hazards;

      (vi) proper shielding where radiation sources are used, acceptable monitoring devices for all personnel who might be exposed to radiation to be worn in any area with a radiation hazard, and the maintenance of records on personnel exposed to radiation; and

      (vii) ongoing recorded evaluation of radiation sources and of all safety measures followed, in accordance with all federal, state, and local laws and regulations.

   (5) Pathology and radiology services shall be directed by qualified physicians licensed by New York State.

   (6) Inmates will be notified promptly of all clinically significant findings and appropriate follow-up evaluation and care will be provided. This section applies to diagnostic service provided in all settings.

  1. Surgical and Anesthesia Services.

   (1) Inmates shall be provided with access to adequate surgical and anesthesia services as defined in written policies and procedures developed by the Health Authority in accordance with legal requirements, accepted professional standards and sound professional judgment and practices.

   (2) Minor surgical and oral surgical procedures can be performed only by medical personnel or dentists with appropriate training and appropriate levels of back up services available.

   (3) The informed consent of the inmate must be obtained before an operation is performed, pursuant to 40 RCNY § 3-06.

   (4) The Health Authority shall provide observation and care for inmates during pre-operative preparation and post-operative recovery periods, and establish written instructions for inmates in follow-up care after surgery.

   (5) Surgical rooms, supplies, and equipment shall be properly cleaned and sterilized before and after each use.

   (6) Adequate surgical and anesthesia equipment and space will be available.

      (i) all equipment shall be calibrated, adjusted and tested regularly and so recorded to ensure proper functioning at all times.

  1. Medical Diets.

   (1) Written policies and defined procedures shall be developed by the Health Authority and the Department of Correction and shall provide for special medical and dental diets which are prepared and served to inmates according to the written orders of the medical or dental personnel.

   (2) When determined by medical or dental personnel that an inmate’s health condition necessitates a special therapeutic diet, the Department of Correction shall be responsible for providing such diets promptly. Written records shall be maintained that identify the names of inmates receiving special diets, the date they are initiated, the duration and the specification of the diets.

   (3) Requests for special diets or modifications of previous requests will be in writing, signed by medical or dental personnel and completely and specifically list the following: (i) levels of applicable nutrients or calories desired;

      (ii) types of and quantities of food groups allowed;

      (iii) special preparation restrictions or requirements if any; and

      (iv) duration of the diet.

   (4) Orders for special diets shall be recorded in the inmate’s medical or dental record including:

      (i) the purpose for such diet;

      (ii) a description of the diet including duration; and

      (iii) the signature of the dentist or physician ordering such diet.

   (5) Inmates who are in need of long-term therapeutic diets shall be given written dietary instructions specific to their diet modification by the Health Authority.

   (6) A Department of Correction registered dietician trained in the preparation of therapeutic diets shall be available for consultation to all facilities where food is prepared for inmates. This registered dietician shall oversee the staff dieticians who will be available in sufficient numbers to insure that all relevant sections of these standards are met.

   (7) Special diets shall be available to inmates in general population and special housing. Special housing shall not be required in order to receive special diets.

  1. Prosthetic Devices.

   (1) Medical and/or dental prostheses shall be provided promptly by the Health Authority when it has been determined by the responsible physician and/or dentist that they are necessary, unless there is a reasonable basis to assume that the inmate will not be incarcerated for sufficient time to receive the prosthesis.

      (i) prostheses shall include any artificial device to replace missing body parts or compensate for defective bodily functions;

      (ii) the cost for prosthetic equipment and services shall be borne by the Health Authority.

  1. Informed Consent.

   (1) Informed consent will always be sought by health care per- sonnel.

   (2) When an invasive procedure is indicated and except as otherwise provided in 40 RCNY § 3-06(j)(4) an inmate shall be given complete information, in a language he/she understands, pertaining to the following:

      (i) the inmate’s diagnosis and the nature and purpose of the proposed medical or dental treatment;

      (ii) the risks and benefits of the proposed treatment;

      (iii) alternative methods of treatment, if any; and

      (iv) the consequences of forgoing the proposed treatment.

   (3) Medical personnel or dentists shall not withhold any facts necessary for an inmate to make an informed, knowing decision regarding treatment, or minimize the risks of known dangers of a procedure in order to induce the inmate’s consent.

   (4) The Health Authority shall develop and implement written policies and procedures pertaining to informed consent which will be submitted for approval to the Board of Correction within 90 days and must be consistent with all applicable laws. The policies and procedures must include, but need not be limited to the following:

      (i) obtaining informed consent for inmates who are minors or others who are or may be legally incapable of providing informed consent;

      (ii) use of a written form to document the informed consent of inmates for special procedures beyond routine treatment; and

      (iii) maintenance of detailed documentation when special procedures or surgery are performed on inmates in emergency situations pursuant to 40 RCNY § 3-06.

   (5) Informed consent forms shall be maintained as part of the inmate’s health record in accordance with all applicable laws.

   (6) Informed consent policies shall be consistent with the informed consent policies described in The Board of Correction Mental Health Minimum Standards for New York City Correctional Facilities.

  1. Drug and Alcohol Treatment.

   (1) All inmates who give empirical evidence of addiction to alcohol, drugs or both, must be observed and offered treatment to prevent complications resulting from intoxication, withdrawal and associated conditions, as appropriate and according to written protocols approved by the Health Authority.

   (2) Education and referral services should be available to inmates with alcohol or drug addiction(s) who request assistance.

  1. Right to Refuse Treatment.

   (1) An inmate may refuse a medical examination or any medical treatment except when medical personnel or a dentist has determined that immediate medical, surgical or dental treatment is required to treat a condition or injury that may cause death, serious bodily harm, or disfigurement to such inmate and at least one of the following applies:

      (i) the inmate has been determined in accordance with all applicable laws to be incompetent to consent to the specific procedure at the time it is offered;

      (ii) consistent with the provision of applicable law the inmate is a minor; or

      (iii) it is demonstrated that the parent or legal guardian of incompetent inmates or minors cannot be reached.

   (2) When an inmate refuses treatment for a health condition that is infectious, contagious, or otherwise poses a threat to the health, safety, or well-being of others, such inmate may, in accordance with determination made by health care personnel either:

      (i) be placed in medical isolation in compliance with 40 RCNY § 3-02(g); or

      (ii) be transferred to an infirmary setting.

   (3) When an inmate is treated against his or her will pursuant to 40 RCNY § 3-06(l)(2):

      (i) the medical personnel will use only those measures which in his or her best professional judgment are deemed appropriate in response to the emergency; and

      (ii) adequate health records shall be maintained to detail the inmate’s condition, the threat the inmate poses to himself and others, and the specific reasons for the inter- vention.

   (4) An inmate who voluntarily refuses any health service deemed essential upon review by health care personnel shall do so after consultation with a Health Authority and shall sign a waiver form developed by the Health Authority.

      (i) if the inmate refuses to sign a waiver, non-treating health care personnel shall sign the waiver as a witness, and note that the inmate has verbally refused such health services and refused to sign any waiver.

      (ii) completed waiver forms shall be maintained as part of each inmate’s health file in accordance with all applicable laws regarding duration of retention.

      (iii) the waiver shall be specific to the procedure or care being refused and must be accompanied by a detailed and documented discussion of the procedure/treatment being refused and medical consequences of refusal and cannot be used to deny or fail to offer the inmate subsequent treatment.

      (iv) Whenever required by medical personnel and practicable, all refusals for specialty clinics should be signed in the presence of medical personnel before the inmate is scheduled for transfer to the specialty clinic.

   (5) Inmates refusing treatment need not remain in a medical area unless their condition, without treatment, cannot be managed in a less intensive setting.

   (6) The policies developed regarding the right to refuse treatment shall be consistent with the Mental Health Minimum Standards.

   (7) Care rendered under 40 RCNY § 3-06(l)(1) or 40 RCNY § 3-06(l)(3) or care refused as described in 40 RCNY § 3-06(l)(4) shall be recorded in a log specifically maintained for this purpose. The log which shall be maintained by the Health Authority in each clinic shall have sequentially numbered pages, and must at a minimum indicate the name and number of the inmate refusing care or being treated against his/her will, the name(s) of the health care personnel involved and a description of the event. This log shall be reviewed by medical personnel designated by the Health Authority on a daily basis. Nothing in this subdivision shall alter the requirements for appropriate documentation in the health care record.

  1. Acquired Immune Deficiency Syndrome.

   (1) The Department of Correction and the Health Authority shall develop policies and procedures to insure that inmates with HIV disease are treated in a non-discriminatory manner. These policies shall state that discrimination against any inmate based on his/her diagnosis or unauthorized disclosure of HIV-related information will result in disciplinary action by the relevant agency.

   (2) The Health Authority shall develop protocols for the prevention and treatment of HIV related illnesses that are consistent with accepted professional standards and sound professional judgment and practice. All practices affecting the treatment or care of people with HIV infection shall be in compliance with federal, state and local laws and with all other parts of these standards.

   (3) Confidentiality. All services for HIV-related disease shall be provided in a manner that insures confidentiality, consistent with these standards and New York State law. Segregation based solely upon this diagnosis shall be prohibited.

   (4) Testing. Testing for HIV infection will be voluntary and performed only with specific informed consent and appropriate pre- and post-test counseling.

   (5) Education. There shall be comprehensive AIDS education for all inmates and personnel who work in Department of Correction facilities and on the prison hospital wards. The curriculum shall be reviewed by the Health Authority, and revised as new information and treatments become available. Education services shall be provided by the Department of Health, the Department of Correction, Health and Hospitals Corporation or their designees. The Health Authority and the Department of Correction shall maintain a schedule of training sessions which includes the number of people in each session which shall be available for review by the Board of Correction.

§ 3-07 Records.

(a) Policy.

   (1) The Health Authority shall design and implement written policies and procedures for the maintenance of medical and dental records for use in correctional facilities which are:

      (i) documented accurately, legibly, and in a timely manner; and

      (ii) readily accessible to health care personnel.

   (2) Records for inmates who are treated at the hospital shall comply with the legal requirements of the hospitals’ accrediting agent(s).

  1. Format and Contents.

   (1) The Health Authority shall approve uniform medical and dental forms for the recording of health information at all Department of Correction facilities.

   (2) A health record shall be established and maintained for each inmate. At a minimum, the health record file shall contain, but not be limited to, the following:

      (i) the completed intake screening form, as described in 40 RCNY § 3-04(b);

      (ii) a problem list;

      (iii) place, date, time, and the type of health service provided at each clinical encounter;

      (iv) all findings, diagnoses, treatments, dispositions, recommendations, and summary of instructions to inmates;

      (v) prescribed medications, their administration, and the duration;

      (vi) original or copies of original laboratory, x-ray, and other diagnostic studies;

      (vii) signature and title of each health care provider shall accompany each chart note; (viii) completed consent and refusal forms;

      (ix) release of information forms signed by the inmate;

      (x) special diets and other specialized treatment plans;

      (xi) clinical and discharge summaries when an inmate is treated outside of Department of Correction facilities;

      (xii) health service reports of medical and dental treatments, examinations, and all consultations pertaining to such services; and

      (xiii) flow sheets for all infirmary or chronic patients.

   (3) The health record shall accompany each inmate whenever he or she is transferred to another New York City Department of Correction institution. The health record, or a copy of the record, or pertinent sections of the record shall accompany each inmate whenever he or she is treated in a specialty clinic within a Department of Correction facility upon request of the specialty clinic physician.

   (4) When an inmate is treated at a specialty clinic in a municipal hospital or other off-site health care facility, a detailed consultation request containing significant data, lab results and all relevant medical history shall accompany each inmate. When specialists at any off-site facility require the complete medical record, there shall be a written procedure in place to allow for the confidential transfer and return of this record or a copy of the record.

  1. Retention of Institutional Records.

   (1) At a minimum the Health Authority shall be responsible for the following:

      (i) safeguarding all health records from loss, tampering, alteration, or destruction;

      (ii) maintaining the confidentiality and security of health records;

      (iii) maintaining the unique identification of each inmate’s health record;

      (iv) supervising the collection, processing, maintenance, storage, timely retrieval, distribution, and release of health records;

      (v) maintaining a predetermined, organized health record format; and

      (vi) retention of active health records and retirement of inactive health records.

   (2) Active and inactive health record files shall be retained according to all applicable laws.

§ 3-08 Privacy and Confidentiality.

(a) Policy. The Health Authority shall establish and implement written policies and procedures which recognize the rights of people in custody to private and confidential treatment and consultations consistent with legal requirements, professional standards, and sound professional judgment and practice.
  1. Privacy.

   (1) All consultations and evaluations between people in custody and health care personnel will be confidential and private.

      (i) Correctional personnel may be present during the delivery of health services when health care and correctional personnel determine that such action is necessary for the safety and/or security of any person.

      (ii) Correctional personnel shall remain sufficiently distant from the place of health care encounters so that quiet conversations between people in custody and health care personnel cannot be overheard. Every effort shall be made to maintain aural and, where possible, visual privacy during encounters between health care personnel and people in custody.

   (2) The Health Authority shall not conduct body cavity searches or strip searches.

  1. Confidentiality.

   (1) Information obtained by health care personnel from people in custody in the course of treatment or consultations shall be confidential except as provided in 40 RCNY § 3-03(b)(3)(iv) and 40 RCNY § 3-08(c)(3).

      (i) All professional standards and legal requirements pertaining to the physician-patient privilege apply.

   (2) Active health records shall be maintained by health care personnel separately from the confinement record and shall be kept in a secure location.

      (i) Access to health records shall be controlled by the Health Authority.

      (ii) Health records shall not be released, communicated or otherwise made available to any person, except treatment personnel or as pursuant to a lawful court order, without the written authorization of the person in custody, except in emergency situations described in 40 RCNY § 3-03(b)(3)(iv).

   (3) Subject to applicable State and Federal law, health care personnel may report a person in custody’s health information to correctional authorities without the written consent of the person in custody only when such information is necessary to provide appropriate health services to the person or to protect the health and safety of the person or others. Disclosures made under this section shall not include:

      (i) The entire health record;

      (ii) Specific diagnoses, with the following exceptions:

         (A) specific diagnoses of injuries sustained by people while in custody may be shared with appropriate correctional personnel for the limited purposes of investigating and identifying trends related to injuries;

         (B) When an exposure to a specific communicable disease other than a common sexually transmitted infection has occurred in a facility, the Health Authority may disclose an individual’s communicable disease diagnosis to appropriate correctional personnel for the limited purpose of contact tracing, and only when disclosing the identity of the individual is absolutely necessary to protect the health and safety of potentially exposed persons. In all other cases involving persons in custody with communicable diseases, the correctional personnel shall be instructed by health care personnel on proper precautions needed to protect correctional personnel and others without being told disease-specific diagnoses for individuals. Disclosures of individuals’ communicable disease diagnoses made pursuant to this provision shall be reported to the Board in writing within 24 hours.

   (4) Correctional personnel shall keep confidential any health-related information or records of a person in custody that the officer receives from health care personnel. Information received by correctional personnel pursuant to 40 RCNY § 3-08(c)(3)(ii) shall not be re-disclosed to anyone, including other correctional personnel.

   (5) When a person in custody communicates health-related information to correctional personnel to obtain access to health services or treatment of a health condition, correctional personnel shall keep such information confidential. People in custody need not disclose their specific medical complaints to correction personnel to obtain medical assistance.

   (6) To assure continuity of care and avoid unnecessary duplication of tests and examinations, a person in custody’s health information shall be made available to health care personnel when that person is transferred to another correctional or health care facility.

      (i) When a person in custody is transferred from one correctional facility to another within the New York City Department of Correction, the person’s complete health record shall be maintained and available in each location.

      (ii) When a person in custody is transferred to or from a municipal hospital ward, a pertinent summary of the person’s health record shall accompany the transfer.

      (iii) When a person in custody is transferred to another correctional system, a record summary defined by the receiving and sending systems shall accompany the person.

      (iv) Complete health record information shall be transferred to specific and designated physicians outside the jurisdiction of the Department of Correction upon the request and written authorization of the person in custody for the release of such information. The release form must specify the information to be transferred.

  1. Experimentation.

   (1) Biomedical, behavioral, pharmaceutical, and cosmetic research involving the use of any person in custody shall be prohibited except where:

      (i) the person in custody has voluntarily given his/her informed consent, pursuant to 40 RCNY § 3-06(j); and

      (ii) all ethical, medical and legal requirements regarding human research are satisfied; and

      (iii) the research satisfies all standards of design, control and safety; and

      (iv) the Health Authority has approved the proposed research, in writing.

   (2) The use of a new medical protocol for individual treatment of a a person in custody by the person’s physician will not be prohibited, provided that such treatment is conducted subsequent to a full explanation to the person of the positive and negative features of the treatment, all requirements of 40 RCNY § 3-06(j) regarding informed consent have been satisfied, and the protocol/treatment has been reviewed by the appropriate local and institutional review boards as required by applicable Federal, State and local laws. As an example, the protocol must be reviewed by an established human research review committee with representation by advocates for people in custody.

§ 3-09 Quality Assurance.

(a) Policy.

   (1) The Health Authority shall establish and implement written policies and procedures for a Quality Assurance Program which ensures the delivery of quality health care. This program shall be systematic and include objective criteria for evaluating care and shall include procedures for the following:

      (i) monitoring and evaluation of the quality, appropriateness, and effectiveness of health care services; and

      (ii) prompt identification and resolution of problems.

   (2) Hospital Prison Wards shall meet accepted community standards for accreditation. Each hospital that is designated to provide health services for inmates shall have a single physician of attending status responsible for all treatment provided to inmates in that hospital.

  1. Quality Assurance Program.

   (1) The monitoring and evaluation activities of the Quality Assurance Program shall reflect the following:

      (i) the ongoing collection and/or screening and evaluation of information about health care services to identify opportunities for improving care and to identify problems that have an impact on health care provision and clinical performance;

      (ii) the use of objective criteria that reflect current knowledge and clinical experience;

      (iii) the identification of problems and improvement of the quality of health care through appropriate actions by administrative and health personnel; and

      (iv) documentation and reporting of the findings, conclusions, recommendations, actions taken and the results of such actions.

   (2) The administration and coordination of the overall Quality Assurance Program will be designed to assure the following:

      (i) all monitoring and evaluation activities are performed appropriately and effectively;

      (ii) necessary information is communicated within and between the Health Authority and the Department of Correction when problems or opportunities to improve health care involve more than one department or service. Communication with the Department of Correction must be consistent with State law and 40 RCNY § 3-08(c) of these standards regarding confidentiality.

      (iii) the status of identified problems shall be tracked to assure prompt improvement or timely resolution;

      (iv) all documented information and recordings will be statistically analyzed to detect trends, patterns of performance or potential problems;

      (v) a quarterly statistical report outlining the types of health care rendered and their frequency shall be prepared by the Health Authority; and

      (vi) the objectives, scope, organization, and effectiveness of the quality assurance program shall be evaluated at least annually and revised as necessary.

   (3) There shall be monthly meetings attended by the facility correctional administrator, the chief representative of Health Services at the facility and representatives of the medical, dental, and nursing staff.

      (i) each meeting will include a written agenda as well as the taking and distribution of minutes.

   (4) All Hospital Prison Wards shall be inspected as part of the accreditation process by the Joint Commission on Accreditation of Hospitals (JCAH), and shall be in compliance with JCAH and State Department of Health standards. In addition, each hospital that is designated to care for inmates will submit as part of their quarterly written reports to the Health Authority, a section that reflects quality assurance activities concerning care provided to inmates.

   (5) The Health Authority shall annually conduct itself or contract for a formal evaluation of the quality, effectiveness, and appropriateness of health services provided to inmates in each New York City correctional facility. If the review is conducted by the Health Authority, it must be done by personnel other than those who provide care directly to inmates.

      (i) At a minimum the evaluation will consist of the items outlined in 40 RCNY § 3-09(c).

      (ii) The findings, conclusions, and recommendations of the Health Authority’s evaluation shall be documented and distributed to the appropriate authorities, including the Board of Correction.

  1. Monitoring and Evaluation.

   (1) The quality of care shall be evaluated and monitored to ensure that medical judgments are soundly made and documented and that medical procedures are appropriately performed and evaluated. Monitoring and evaluation shall assess the appropriateness of diagnostic and treatment procedures, the use of adequate and complete diagnostic procedures including laboratory and radiology studies when indicated. Other subjects which should be reviewed include but need not be limited to: inservice training for medical personnel; the provision of chronic care services; adherence to protocols as evidenced by chart review; whether protocols are updated to reflect current medical knowledge; and whether staff education is successfully conducted to ensure compliance with current protocols.

   (2) The quality, content and completeness of medical and dental records and entries will be evaluated and shall at a minimum include verification of:

      (i) timely and adequate transfer of appropriate health care documents and information when inmates are transferred to or from other correctional facilities.

      (ii) confidentiality and security of records.

   (3) The quality, completeness and efficiency of receiving screening services shall be evaluated, including at least a review of any cases where an inmate with a serious health problem, which went undetected at screening, was placed in the general population and of cases where there are substantial delays in conducting the screening.

   (4) An evaluation of the quality and appropriateness of surgical and anesthesia services shall be conducted and include at least the following:

      (i) a regular and systematic evaluation of inmates who require hospitalization following surgery;

      (ii) a regular review to ensure that procedures are done in appropriate time frames after they are ordered;

      (iii) review of the inspection and testing of anesthetic apparatus before use; and

      (iv) review of the documentation of surgical and anesthesia procedures, annual review and revision as necessary.

   (5) The quality and appropriateness of emergency services will be evaluated and include at least a review of the following:

      (i) correctional and health personnel response times to emergencies; and

      (ii) sufficiency of supplies, equipment, materials and emergency health care per- sonnel.

   (6) An evaluation of quality control in radiology, pathology, and other laboratory services will be performed and include a review of at least the following:

      (i) the documentation, accuracy, and completeness of procedures; and

      (ii) all safety aspects of the radiology service.

   (7) Procedures for medication prescription, administration, and dispensing will be reviewed to ensure compliance with all applicable Federal, State, and local laws.

   (8) Procedures for inventory control and documentation to account for the use of materials, supplies, equipment and medication shall be evaluated.

   (9) Staffing needs shall be evaluated regularly to assure the maintenance of an adequate number of qualified health care personnel as consistent with the needs of the correctional facility.

      (i) Written job descriptions shall be reviewed to maximize the functional responsibility, authority, and utilization of available health care personnel and to make changes or additions where necessary;

      (ii) All health care personnel will receive periodic job performance appraisals by their supervisors which will include licensure or certification renewal; and

      (iii) Inservice training shall be reviewed at least annually by the Health Authority to ensure that the quality, scope and effectiveness of training is adequate.

   (10) All powered emergency, radiology, pathology, surgical, and dental equipment shall be tested at intervals deemed necessary to assure their proper functioning, but in no case shall such intervals exceed six months.

   (11) Procedures for the management of hazardous materials and wastes in accordance with Federal, State, and local laws and regulations shall be reviewed.

   (12) Documents and records will be made available to the Board of Correction by the Health Authority, Health and Hospitals Corporation and the Department of Correction in a timely fashion to allow the Board to monitor compliance with all parts of these standards. These records do not include individual medical records for living inmates, which must be obtained using standard procedures of informed consent and release.

§ 3-10 Inmate Death.

(a) Policy. The Department of Correction shall establish policies and procedures to insure that in the case of an inmate's death, prompt notification is made to family and appropriate officials and with the Health Authority shall insure that a thorough and timely review of the death is conducted.
  1. Notification. In the event of an inmate death, the Department of Correction shall notify the Medical Examiner’s Office and the inmate’s next of kin immediately.
  2. Review.

   (1) A postmortem examination shall be performed promptly whenever an inmate dies in the custody of the Department of Correction. A copy of the report will be sent to the Board of Correction.

   (2) The Board of Correction shall conduct an investigation of inmate deaths including the review of all medical records of the deceased. Appropriate reviews will be discussed by the Prison Death Review Board that the Board of Correction will staff and the Deputy Mayor for Public Safety’s Office will convene. The Prison Death Review Board will meet on an as needed basis and will include representatives from the Mayor’s office, the Health Authority, the Department of Mental Health, Mental Retardation and Alcoholism Services, the Health and Hospitals Corporation, the Department of Correction, the Board of Correction and other health care providers involved in the care of the deceased.

   (3) Nothing in this section substitutes for the reviews that must be conducted of every death by the Health Authority and the Department of Correction.

§ 3-11 Disaster Plan.

(a) Policy. There shall be policies and procedures for the management and delivery of health care in the event of a man-made or natural disaster.
  1. Disaster Plan.

   (1) The Health Authority and the Department of Correction shall be responsible for designing written policies and procedures to provide timely and orderly emergency services in the event of a natural or man-made disaster. This disaster plan shall include, but not be limited to the following:

      (i) use of an alert system;

      (ii) use of emergency equipment and supplies;

      (iii) re-assignment of health care and correctional personnel Department-wide to best meet each facility’s needs;

      (iv) a training program and schedule;

      (v) security, storage, and maintenance of medical supplies and health records;

      (vi) delivery of medical and dental supplies;

      (vii) use of ambulance services; and

      (viii) periodic recorded practice drills and staff training.

   (2) The disaster plan must be approved by the Health Authority and the Department of Correction and reviewed and updated annually. Certification of annual review must be sent to the Board of Correction.

§ 3-12 Shackling of Inmates.

(a) Policy. The Department of Correction, the Health Authority, and the Health and Hospitals Corporation shall develop and implement procedures governing the shackling of inmates who are receiving medical treatment and are housed in beds outside secure medical wards at the municipal hospitals. Inmates housed outside secure medical wards shall not be routinely shackled. The decision to shackle shall be made on a case by case basis and shall not serve as a substitute for appropriate security precautions or as punishment or for the convenience of staff. Shackling of inmates being transported between clinical settings shall be the least restrictive possible. All non-emergency decisions to shackle inmates must not be medically contraindicated.
  1. Definition. Shackling includes the use of all devices which encircle the ankle or wrist of an inmate and restrict movement.
  2. Procedures. The procedures developed for inmates housed in hospitals in beds outside of secure medical wards must include the following:

   (1) Shackling shall be used only upon the direction of the Chief Correctional Officer or his/her designee after a review of the individual case. Pending the receipt of security-related information necessary to perform the review, an inmate may be shackled unless he/she falls into categories listed in (3)(i) through (iv) below. This security-related information must be obtained promptly.

   (2) Shackling shall only be used when a Chief Correctional Officer or his/her designee demonstrates with clear and articulable facts that twenty-four hour officer coverage may be insufficient to protect the safety of others or to prevent escape.

   (3) An inmate who is to be restrained shall be seen by a physician. DOC will not shackle an inmate where a physician has determined that the inmate is:

      (i) pregnant and admitted for delivery of a baby; or

      (ii) dependent on a ventilator or respirator; or

      (iii) in imminent danger or expectation of death (unless the inmate while in the condition described by (i)-(iii) above attempts to escape or engages in violent behavior at the hospital which presents a danger of injury); or

      (iv) where shackling is medically contraindicated. Provided, however, that should an inmate, while in a condition described by (iv) above, attempt to escape or engage in violent behavior at the hospital which presents a danger of injury, he/she may be restrained pending an immediate review of his/her medical condition by a physician to determine whether the use of shackles threatens the inmate’s life. DOC shall promptly make alternative security arrangements before the restraints are removed, unless a life-threatening condition exists. In the case of a life-threatening condition, the shackles shall be removed immediately.

   (4) At least daily, physicians shall update and review the medical condition of shackled inmates. They shall convey their findings to the Department of Correction including whether the use of mechanical restraints, while the inmate ambulates is medically contraindicated.

   (5) A shackled inmate shall be given the opportunity to use the bathroom as often as the need arises unless the physician has ordered the use of bed pans instead.

   (6) The decision to shackle an inmate shall be reviewed on a daily basis by a Chief Correctional Officer or his/her designee and must be revised immediately if a physician determines that the shackles have become medically contraindicated. In the latter case, unless a life-threatening medical emergency exists, DOC shall have the opportunity to make alternative security arrangements, if necessary, before the shackles are removed. These arrangements must be made promptly.

   (7) All decisions to apply mechanical restraints will be made by the Department of Correction’s office of operations.

   (8) Written records shall be maintained at the hospitals which indicated the reason for shackling, the time and date of the approval for shackling, the name and title of the person giving approval, and the inmate’s name, book and case number and medical status.

   (9) Hospital-based physicians caring for inmates outside secure medical wards at the municipal hospitals shall receive training in this standard.

§ 3-13 Variances.

(a) Policy. Any Department may apply for a variance from a specific Section or Subdivision of these minimum standards when compliance cannot be achieved or continued.

   Continuing Variance. A “continuing variance” is an exemption granted by the Board from full compliance with a particular Section or Subdivision for an indefinite period of time.

   Emergency Variance. An “emergency variance” as defined in 40 RCNY § 3-13(c)(3) is an exemption granted by the Board from full compliance with a particular Section or Subdivision for no more than 30 days.

   Limited Variance. A “limited variance” is an exemption granted by the Board from full compliance with a particular Section or Subdivision for a specified period of time.

  1. Variances Prior to Effective Date. A Department may apply to the Board for a variance prior to the effective date of a particular Section or Subdivision when:

   (1) despite its best efforts and the best efforts of other New York City officials and agencies, full compliance with the Section or Subdivision cannot be achieved by the effective date; or

   (2) compliance is to be achieved in a manner other than specified in the Section or Subdivision.

  1. Limited, Continuing and Emergency Variances.

   (1) A Department may apply to the Board for a limited variance when:

      (i) despite its best efforts, and the best efforts of other New York City officials and agencies, full compliance with the Section or Subdivision cannot be achieved; or

      (ii) compliance is to be achieved for a limited period in a manner other than specified in the Section or Subdivision.

   (2) A Department may apply to the Board for a continuing variance when despite its best efforts and the best efforts of other New York City officials compliance cannot be achieved in the foreseeable future because:

      (i) full compliance with a Section or Subdivision creates extreme practical difficulties as a result of circumstances unique to the design of a particular facility, and lack of full compliance would not create a danger or undue hardship to staff or inmates; or

      (ii) compliance is to be achieved in an alternative manner sufficient to meet the intent of the Section or Subdivision.

   (3) A Department may apply to the Board for an emergency variance when an emergency situation prevents continued compliance with the Section or Subdivision. An emergency variance for a period of less than 24 hours may be declared by a Department when an emergency situation prevents continued compliance with a particular Section or Subdivision. The Board or a designee shall be immediately notified of the emergency situation and the variance application.

  1. Variance Application.

   (1) An application for a variance must be made in writing to the Board by the Commissioner of a Department as soon as a determination is made that continued compliance will not be possible and shall state:

      (i) the type of variance requested;

      (ii) the particular Section or Subdivision at issue;

      (iii) the requested commencement date of the variance;

      (iv) the efforts undertaken by a Department to achieve compliance;

      (v) the specific facts or reasons making full compliance impossible, and when those facts and reasons became apparent;

      (vi) the specific plans, projections and timetables for achieving full compliance;

      (vii) the specific plans for serving the purpose of the Section or Subdivision for the period that strict compliance is not possible; and

      (viii) if the application is for a limited variance, the time period for which the variance is requested, provided that this shall be no more than six months.

   (2) In addition to the provisions of subsection (1), an application for a continuing variance shall state:

      (i) the specific facts and reasons underlying the impracticability or impossibility of compliance within the foreseeable future, and when those facts and reasons became apparent; and

      (ii) the degree of compliance achieved and the Department’s efforts to mitigate any possible danger or hardships attributable to lack of full compliance; or

      (iii) a description of the specific plans for achieving compliance in an alternative manner sufficient to meet the intent of the Section or Subdivision.

   (3) In addition to the requirements of subsection (1), an application for an emergency variance for a period of 24 hours or more, (or for renewal of an emergency variance) shall state:

      (i) the specific facts or reasons making continued compliance impossible, and when those facts and reasons became apparent;

      (ii) the specific plans, projections and timetables for achieving full compliance; and

      (iii) the time period for which the variance is requested, provided that this shall be no more than thirty days.

  1. Variance procedure for limited and continuing variances.

   (1) Prior to a decision on a variance application for a limited or continuing variance, whenever practicable, the Board will consider the positions of all interested parties, including correctional employees, health service professionals, inmates and their representatives, other public officials and legal religious and community organizations.

   (2) Whenever practicable, the Board shall hold a public meeting or hearing on the variance application and hear testimony from all interested parties.

   (3) The Board’s decision on a variance application shall be in writing.

   (4) Interested parties shall be notified of the Board’s decision as soon as practicable and no later than 5 business days after the decision is made.

  1. Granting of variance.

   (1) The Board shall grant a variance only if it is convinced that the variance is necessary and justified.

   (2) Upon granting a variance, the Board shall state:

      (i) the type of variance;

      (ii) the date on which the variance will commence;

      (iii) the time period of the variance, if any; and

      (iv) any requirements imposed as conditions on the variance.

  1. Renewal of variance.

   (1) An application for a renewal of a limited or emergency variance shall be treated in the same manner as an original application as provided in 40 RCNY § 3-13(c)-(f). The Board shall not grant renewal of a variance unless it finds that, in addition to the requirements for approving an original application, a good faith effort has been made to comply with the Section or Subdivision within the previously prescribed time limitation, and that the requirements set by the Board as conditions on the original variance have been met.

   (2) A petition for review of a continuing variance may be made upon the Board’s own motion or by officials of a Department, or its employees, inmates or their representatives. Upon receipt of a petition, the Board shall review and reevaluate the continuing necessity and justification for the continuing variance. Such review shall be conducted in the same manner as the original application as provided in the 40 RCNY § 3-13(c)-(f). The Board will discontinue the variance, if after such review and consideration, it determines that:

      (i) full compliance with the standard can now be achieved; or

      (ii) requirements imposed as conditions upon which the continuing variance was granted have not been fulfilled or maintained; or

      (iii) there is no longer compliance with the intent of the Section or Subdivision in alternative manner as required by 40 RCNY § 3-13(b)(ii).

   (3) The Board shall specify in writing and publicize the facts and reason for its decision on an application for renewal or review of a variance. The Board’s decision must comply with the requirements of 40 RCNY § 3-13(f), and, in the case of limited and continuing variances, 40 RCNY § 3-13(e)(3) and (4). Where appropriate, the Board shall set an effective date for discontinuance of a continuing variance after consultation with all interested parties.

§ 3-14 Effective Date.

These standards (40 RCNY §§ 3-01 through 3-13) shall take effect May 15, 1991.

§ 3-15 Implementation Dates.

The policies, procedures, criteria, plans, programs and forms required by the various subdivisions of these standards shall be developed, approved and implemented with the time periods stated below. All time periods are computed from the effective date of these standards (see 40 RCNY § 3-14).

Subdivision Implementation
40 RCNY § 3-02(d)(7) 3 months
40 RCNY § 3-02(f)(1) 4 months
40 RCNY § 3-02(f)(2) iii 14 months
40 RCNY § 3-02(f)(4) 4 months
40 RCNY § 3-05(b)(1) 4 months
40 RCNY § 3-06(h)(2), (6), (7) 4 months
40 RCNY § 3-07(a)(1), (2) 4 months
40 RCNY § 3-09(a) (1) 4 months
40 RCNY § 3-09(b)(1)-(5) 4 months
40 RCNY § 3-09(c)(1)-(12) 4 months
40 RCNY § 3-11(a) 8 months
40 RCNY § 3-11(b)(1), (2) 8 months

~

Dated: April 10, 1991

§ 3-16 Injury Response.

(a) Policy. The Department of Correction and the Health Authority (“Agencies”) shall establish policies and procedures to address and prevent injuries to people in custody.
  1. Investigations. Investigations of injuries of people in custody, including all supporting documentation such as Injury-to-Inmate forms, shall be completed in a prompt, accurate, and objective manner. For the purposes of this section, investigations shall mean investigations conducted in the manner required by the Department of Correction (“Department”) including, but not limited to, investigations conducted by the facility or investigations contained in Injury-to-Inmate forms.
  2. Coordination.

   (1) Quarterly Meetings. The Agencies shall engage in regular communication and quarterly meetings, to review data on injuries, identify trends, and perform quality assurance on injury report documentation. These communications and quarterly meetings shall include data-informed development of corrective action plans.

   (2) Injury Tracking System. Within one year of the effective date of this rule, the Agencies shall maintain a coordinated electronic injury tracking system for serious injuries, which for purposes of 40 RCNY § 3-16 are defined as injuries designated as serious by the Health Authority for the sole purpose of tracking injuries. Within two years of the effective date of this rule, the Agencies shall maintain a coordinated electronic injury tracking system for all injuries, both serious and non-serious.

  1. Reporting and Review.

   (1) By the fourth Friday of September 2019 and on the fourth Friday of every month thereafter, the Department shall provide the Board with all Injury-to-Inmate forms (or any other injury reporting mechanism that may replace the Injury-to-Inmate form) created in the previous month and any forms updated in the previous month.

   (2) The Agencies shall provide the Board with a joint, monthly, public report of data on injuries and serious injuries to people in custody (“Joint Monthly Injury Report”), as follows:

      (i) Phase 1. Starting on the fourth Friday of September 2019 and on the fourth Friday of every month thereafter, the Joint Monthly Injury Report shall include the following information in a machine-readable format using both numerical values and percentages, for the previous month and for the year-to-date:

         (A) The Health Authority’s definition of serious injuries for that reporting period;

         (B) A list of the Health Authority’s injury reporting codes used during that reporting period;

         (C) Total number of injury reports made, overall and disaggregated by treating facility;

         (D) Total number of injuries presented to and confirmed by health care personnel, overall and disaggregated by treating facility, and then further disaggregated by serious and non-serious injuries;

         (E) Total number of injuries confirmed by heath personnel that required urgent care, overall and disaggregated by treating facility, and then further disaggregated by serious and non-serious injuries;

         (F) Total number of injuries confirmed by heath personnel that required hospital emergency care, overall and disaggregated by treating facility, and then further disaggregated by serious and non-serious injuries;

         (G) Age of persons with injuries confirmed by health personnel, overall and disaggregated by treating facility, disaggregated by serious and non-serious injuries, and then re-aggregated by age group (i.e. adolescents ages 16 and 17, young adults ages 18 to 21, and adults ages 22 and over);

         (H) Whether persons with injuries presented to health personnel received or refused treatment, grouped and totaled by “received treatment” or “refused treatment,” and then further disaggregated by serious and non-serious injuries;

         (I) Mean, median, minimum, and maximum time between the time of Department Supervisor notification and the time of initial medical evaluation for serious injuries, overall and disaggregated by treating facility;

         (J) Types of serious injuries as defined by the Health Authority, grouped and totaled by serious injury type, overall and disaggregated by treating facility;

         (K) Types of non-serious injuries, including head injuries, lacerations, and other, grouped and totaled by injury type, overall and disaggregated by specific command;

         (L) Bodily location of injuries, grouped and totaled by bodily location, overall and disaggregated by specific command, and then further disaggregated by serious and non-serious injuries;

         (M) Cause of injuries as reported by the injured person to Health Authority, including self-injury, grouped and totaled by reported cause of injury, overall and disaggregated by treating facility, and then further disaggregated by serious and non-serious injuries;

         (N) Any other information deemed notable by the Agencies.

      (ii) Phase 2. Starting one year after the effective date of this rule, and continuing on the fourth Friday of every month thereafter for a period of one year, the Joint Monthly Injury Report shall also include the following information in a machine-readable format using both numerical values and percentages, for the previous month and for the year-to-date:

         (A) Locations within the commands where the serious injuries occurred, grouped and totaled by location, overall and disaggregated by specific command (i.e. facility, transportation, court);

         (B) For serious injuries occurring in housing areas, the specific locations within the housing area where the injuries occurred, overall and disaggregated by specific command;

         (C) Total number of pending facility investigations for serious injuries reported in the previous month, overall and disaggregated by specific command;

         (D) Total number of completed investigations for serious injuries reported in the previous month, overall and disaggregated by specific command;

         (E) Cause of serious injuries, including self-injury, as recorded in the facility investigation, grouped and totaled by cause of injury, overall and disaggregated by specific command;

         (F) Mean, median, minimum, and maximum time between time of Department Supervisor notification and completion of facility investigation for all serious injuries reported in the previous month, overall and disaggregated by specific command; and

         (G) Whether incidents resulting in serious injuries were witnessed by the staff persons who completed the Injury to Inmate reports, grouped and totaled by “witnessed” or “not witnessed,” overall and disaggregated by specific command.

      (iii) Phase 3. Starting two years after the effective date of this rule, and continuing on the fourth Friday of every month thereafter, the Joint Monthly Injury Report shall also include all information required pursuant to 40 RCNY §§ 3-16(d)(2)(ii)(A) - (B), (D) - (G) for serious and non-serious injuries, in a machine-readable format using both numerical values and percentages, for the previous month and the year-to-date.

   (3) Starting on the fourth Friday of September 2019, the Agencies shall provide the Board with a monthly data file with injury-level information corresponding to the data enumerated in the Joint Monthly Injury Report. This file shall also include all relevant identifying injury-level information (e.g., injury report number, Central Operations Desk/Use of Force report number, injury date, date of injury report, specific unit and housing area, housing area type, date investigation was closed, incarcerated person-identifiers, and witnessing-staff identifiers) for each injury reported. Each file shall be shared in an electronic, machine-readable format and shall be updated cumulatively from each prior data reporting period. The file shall be maintained as confidential by the Board.

   (4) On at least an annual basis, beginning on the first day of the sixth month after the effective date of this Rule, the Department shall review all Joint Monthly Injury Reports submitted in the previous year pursuant to subdivision 40 RCNY § 3-16(d)(2). Within 60 days of each such annual review, the Department shall provide the Board with a written public report detailing:

      (i) Steps taken in its review;

      (ii) Findings, and any plans for corrective action; and

      (iii) Status of corrective actions described in prior reports submitted over the past five years.

   (5) Starting on the fourth Friday of September 2019 and on the fourth Friday of every month thereafter, the Health Authority shall provide the Board with a monthly public report on self-harm, including the following information in a machine-readable format using both numerical values and percentages, for the previous month and for the year-to-date:

      (A) Total number of injuries reflecting self-harm, as determined by health care personnel, overall and disaggregated by serious and non-serious injuries;

      (B) Injuries reflecting self-harm, disaggregated by age (adolescents ages 16 and 17, young adults ages 18 to 21, and adults ages 22 and older), and further disaggregated serious and non-serious injuries; and

      (C) Injuries reflecting self-harm, disaggregated by housing type, and further disaggregated serious and non-serious injuries.

Chapter 5: Elimination of Sexual Abuse and Sexual Harassment in Correctional Facilities

Subchapter A: Definitions

§ 5-01 General Definitions.

As used in this chapter:

Board means the New York City Board of Correction.

CHA means the Correctional Health Authority designated by the City of New York as the agency responsible for health and mental health services for inmates in the care and custody of the Department, including CHA contractor staff or volunteers.

CHA employee or staff means an employee who works directly for CHA.

Contractor
means a person who provides services on a recurring basis pursuant to a contractual agreement with the Department or CHA.
DA
means a District Attorney’s Office.
Department
means the New York City Department of Correction.

Department employee or staff means an employee who works directly for the Department.

Direct staff supervision
means that Department security staff are in the same room with, and within reasonable hearing distance of, the inmate.

DOI means the New York City Department of Investigation.

Exigent circumstances
mean any set of temporary and unforeseen circumstances that require immediate action in order to combat a threat to the security or institutional order of a facility.
Facility
means a place, institution, building (or part thereof), set of buildings, structure, or area (whether or not enclosing a building or set of buildings) used by the Department for the confinement of individuals.
Gender nonconforming
means a person whose appearance or manner does not conform to traditional societal gender expectations.

ID staff means any employee or staff who works directly for the Department in the Department’s Investigation Division.

Inmate
means any person incarcerated or detained in a facility.

Intersex means a person whose sexual or reproductive anatomy or chromosomal pattern does not seem to fit typical definitions of male or female. Intersex medical conditions are sometimes referred to as disorders of sex development.

Medical practitioner
means a health professional who, by virtue of education, credentials, and experience, is permitted by law to evaluate and care for patients within the scope of his or her professional practice. A “qualified medical practitioner” means such a professional who has also successfully completed specialized training for treating sexual abuse victims.
Mental health practitioner
means a mental health professional who, by virtue of education, credentials, and experience, is permitted by law to evaluate and care for patients within the scope of his or her professional practice. A “qualified mental health practitioner” means such a professional who has also successfully completed specialized training for treating sexual abuse victims.

Nunez Agreement means the Consent Judgment in Nunez v. City of New York, 11 Civ. 05845 (SDNY).

Pat-down search means a running of the hands over the clothed body of an inmate by an employee to determine whether the individual possesses contraband.

Security staff
means Department employees primarily responsible for the supervision and control of inmates, detainees, or residents in housing units, recreational areas, dining areas, and other program areas of the facility.

Strip search means a search that requires a person to remove or arrange some or all clothing so as to permit a visual inspection of the person’s breasts, buttocks, or genitalia.

Transgender
means a person whose gender identity (i.e., internal sense of feeling male or female) is different from the person’s assigned sex at birth.
Substantiated allegation
means an allegation that was investigated and determined to have occurred.
Unfounded allegation
means an allegation that was investigated and determined not to have occurred.
Unsubstantiated allegation
means an allegation that was investigated and the investigation produced insufficient evidence to make a final determination as to whether or not the event occurred.
Volunteer
means an individual who donates time and effort on a recurring basis to enhance the activities or programs of the Department or CHA.

§ 5-02 Definitions Related to Sexual Abuse.

For purposes of this chapter, the term:

  1. Sexual abuseincludes:

   (1) Sexual abuse of an inmate by another inmate; and

   (2) Sexual abuse of an inmate by a staff member, contractor, or volunteer.

  1. Sexual abuse of an inmate by another inmate includes any of the following acts, if the victim does not consent, is coerced into such act by overt or implied threats of violence, or is unable to consent or refuse:

   (1) Contact between the penis and the vulva or the penis and the anus, including penetration, however slight;

   (2) Contact between the mouth and the penis, vulva, or anus;

   (3) Penetration of the anal or genital opening of another person, however slight, by a hand, finger, object, or other instrument; and

   (4)    Any other intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or the buttocks of another person, excluding contact incidental to a physical altercation.

  1. Sexual abuse of an inmate by a staff member, contractor, or volunteer includes any of the following acts, with or without consent of the inmate:

   (1)    Contact between the penis and the vulva or the penis and the anus, including penetration, however slight;

   (2) Contact between the mouth and the penis, vulva, or anus;

   (3) Contact between the mouth and any body part where the staff member, contractor, or volunteer has the intent to abuse, arouse, or gratify sexual desire;

   (4) Penetration of the anal or genital opening, however slight, by a hand, finger, object, or other instrument, that is unrelated to official duties or where the staff member, contractor, or volunteer has the intent to abuse, arouse, or gratify sexual desire;

   (5) Any other intentional contact, either directly or through the clothing, of or with the genitalia, anus, groin, breast, inner thigh, or the buttocks, that is unrelated to official duties or where the staff member, contractor, or volunteer has the intent to abuse, arouse, or gratify sexual desire;

   (6) Any attempt, threat, or request by a staff member, contractor, or volunteer to engage in the activities described in paragraphs (1)-(5) of this section;

   (7) Any display by a staff member, contractor, or volunteer of his or her uncovered genitalia, buttocks, or breast in the presence of an inmate, and

   (8) Voyeurism by a staff member, contractor, or volunteer.

  1. Voyeurism by a staff member, contractor, or volunteer means an invasion of privacy of an inmate by staff for reasons unrelated to official duties, such as peering at an inmate who is using a toilet in his or her cell to perform bodily functions; requiring an inmate to expose his or her buttocks, genitals, or breasts; or taking images of all or part of an inmate’s naked body or of an inmate performing bodily functions.
  2. Sexual harassment includes—

   (1) Repeated and unwelcome sexual advances, requests for sexual favors, or verbal comments, gestures, or actions of a derogatory or offensive sexual nature by one inmate directed toward another; and

   (2) Repeated verbal comments or gestures of a sexual nature to an inmate by a staff member, contractor, or volunteer, including demeaning references to gender, sexually suggestive or derogatory comments about body or clothing, or obscene language or gestures.

Subchapter B: Prevention Planning

§ 5-03 Zero Tolerance of Sexual Abuse and Sexual Harassment; PREA Coordinator.

(a) The Department shall have a written policy mandating zero tolerance toward all forms of sexual abuse and sexual harassment and outlining the Department’s approach to preventing, detecting, and responding to such conduct.
  1. The Department shall employ or designate an upper-level, agency-wide PREA coordinator with sufficient time and authority to develop, implement, and oversee Department efforts to comply with this Chapter in all facilities.
  2. Each facility shall designate a PREA compliance manager with sufficient time and authority to coordinate the facility’s efforts to comply with the PREA standards.

§ 5-04 Supervision and Monitoring.

(a) The Department shall ensure that by January 31, 2018, each facility it operates develops, documents, and makes its best efforts to comply on a regular basis with a staffing plan that provides for adequate levels of staffing, and, where applicable, video monitoring, to protect inmates against sexual abuse. In calculating adequate staffing levels and determining the need for video monitoring, facilities shall take into consideration:

   (1) Generally accepted detention and correctional practices;

   (2) Any judicial findings of inadequacy;

   (3) Any findings of inadequacy from Federal investigative agencies;

   (4) Any findings of inadequacy from internal or external oversight bodies;

   (5) All components of the facility’s physical plant (including “blind-spots” or areas where staff or inmates may be isolated);

   (6) The composition of the inmate population;

   (7) The number and placement of supervisory staff;

   (8) Institution programs occurring on a particular shift;

   (9) Any applicable State or local laws, regulations, or standards;

   (10) The prevalence of substantiated and unsubstantiated incidents of sexual abuse; and

   (11) Any other relevant factors.

  1. In circumstances where the staffing plan is not complied with, the facility shall document and justify all deviations from the plan.
  2. By February 1, 2018, the Department shall provide the Board with each facility’s staffing plan required to be developed pursuant to subdivision (a) of this section.
  3. The Department shall provide a written report to the Board of the progress toward developing and implementing facility staffing plans by July 15, 2017.
  4. Whenever necessary, but no less frequently than once each year, for each facility the Department operates, in consultation with the PREA coordinator required by 40 RCNY § 5-03, the Departmentshall assess, determine, and document whether adjustments are needed to:

   (1) The staffing plan established pursuant to subdivision (a) of this section;

   (2) The facility’s deployment of video monitoring systems and other monitoring technologies; and

   (3) The resources the facility has available to commit to ensure adherence to the staffing plan.

  1. The Department shall provide annually to the Board, in writing, all deviations or adjustments to such plans that the Department is required to document pursuant to subdivisions (b) and (e) of this section. The Department shall provide this information to the Board by the first business day of March starting in 2019 and by each first business day of March thereafter.
  2. 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 this pilot program, including any benefits or challenges associated with the installation of video surveillance cameras in inmate transport vehicles.
  3. After termination of the Nunez Agreement, the Department shall provide to the Board a detailed description of the criteria the Department shall consider in determining whether a surveillance camera should be installed in a particular area of a facility (“installation protocol”). The purpose of the installation protocol shall be to ensure that, to the extent necessary and feasible, additional surveillance cameras shall be installed. The Department shall provide annually a written report to the Board on action taken pursuant to this protocol.
  4. After termination of the Nunez Agreement, the Department shall provide the Board with a detailed description of the process it will follow to determine whether all surveillance cameras are functioning properly and, if not, the procedures for replacing or repairing such cameras (“maintenance protocol”). The purpose of the maintenance protocol shall be to ensure that all surveillance cameras are maintained to function properly and, if repairs are required, they are timely made. The Department shall provide annually a written report to the Board on action taken pursuant to this protocol.
  5. When the Department is notified of a sexual abuse incident within 90 days of the date of the incident, the Department will preserve any video capturing the incident until the later of: (i) four (4) years after the incident, or (ii) 90 days following the conclusion of an investigation into the sexual abuse incident, or of any disciplinary, civil, or criminal proceedings relating to the incident, provided the Department was on notice of any such investigation or proceeding prior to four years (4) after the incident.
  6. The Department shall implement a policy and practice of having intermediate-level or higher-level supervisors conduct and document unannounced rounds to identify and deter staff sexual abuse and sexual harassment. Such rounds shall be conducted during night shifts as well as day shifts. Rounds shall be conducted at unpredictable and varied times.The Department shall have a policy to prohibit staff from alerting other staff members that these supervisory rounds are occurring, unless such announcement is related to the legitimate operational functions of the facility. The Department shall issue a written directive to staff regarding these monitoring rounds and provide this directive to the Board.
  7. The Department shall have a written policy requiring consideration of the feasibility of placing a surveillance camera in an area where sexual abuse is repeatedly reported or alleged to have occurred or consideration of alternative preventive measures such as increased monitoring rounds or the assignment of additional Department staff in that area.

§ 5-05 Youthful Inmates.

(a) Any inmate under the age of 18 shall not be placed in a housing unit in which the inmate under the age of 18 will have sight, sound, or physical contact with any inmate 18 years old or more through use of a shared dayroom or other common space, shower area, or sleeping quarters.
  1. In areas outside of housing units, the Department shall either:

   (1) Maintain sight and sound separation between any inmate under the age of 18 and any inmate18 years old or more, or

   (2) Provide direct staff supervision when any inmate under the age of 18 and any inmate 18 years old or more have sight, sound, or physical contact.

§ 5-06 Limits to Cross-Gender Viewing and Searches.

(a) The Department shall not conduct cross-gender strip searches or cross-gender visual body cavity searches (meaning a search of the anal or genital opening) except in exigent circumstances or when performed by medical practitioners.
  1. The Department shall not permit cross-gender pat-down searches of female inmates, absent exigent circumstances. The Department shall not restrict female inmates’ access to regularly available programming or other out-of-cell opportunities in order to comply with this provision.
  2. The Department shall document all cross-gender strip searches and cross-gender visual body cavity searches, and shall document all cross-gender pat-down searches of female inmates.
  3. The Department shall implement policies and procedures that enable inmates to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia, except in exigent circumstances or when such viewing is incidental to routine cell checks. Such policies and procedures shall require staff of the opposite gender to announce their presence when entering an inmate housing unit.
  4. The Department shall not search or physically examine a transgender or intersex inmate for the sole purpose of determining the inmate’s genital status. If the inmate’s genital status is unknown, it may be determined during conversations with the inmate, by reviewing medical records, or, if necessary, by learning that information as part of a broader medical examination conducted in private by a medical practitioner.
  5. The Department shall 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. For purposes of these searches, unless exigent circumstances require otherwise, the Department shall make its best efforts to treat intersex and transgender inmates in accordance with their gender identity. The Department shall conduct this training in accordance with the timelines set forth in 40 RCNY § 5-12(f).
  6. The Department shall issue a written directive to all staff incorporating the provisions of this section and provide this directive to the Board by June 1, 2017.

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

(a) The Departmentshall take appropriate steps to ensure that inmates with disabilities (including, for example, inmates who are deaf or hard of hearing, those who are blind or have low vision, or those who have intellectual, psychiatric, or speech disabilities), have an equal opportunity to participate in or benefit from all aspects of the Department’s efforts to prevent, detect, and respond to sexual abuse and sexual harassment. Such steps shall include, when necessary to ensure effective communication with inmates who are deaf or hard of hearing, providing access to interpreters who can interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. In addition, the Department shall ensure that written materials are provided in formats or through methods that ensure effective communication with inmates with disabilities, including inmates who have intellectual disabilities, limited reading skills, or who are blind or have low vision. The Department is not required to take actions that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity, or in undue financial and administrative burdens, as those terms are used in regulations promulgated pursuant to title II of the Americans With Disabilities Act, 28 C.F.R. § 35.164.
  1. The Department shall take reasonable steps to ensure meaningful access to all aspects of the Department’s efforts to prevent, detect, and respond to sexual abuse and sexual harassment for inmates who are limited English proficient, including steps to provide interpreters who can interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.
  2. The Department shall not rely on inmate interpreters, inmate readers, or other types of inmate assistants except in limited circumstances where an extended delay in obtaining an effective interpreter could compromise the inmate’s safety, the performance of first-response duties under 40 RCNY § 5-26, or the investigation of the inmate’s allegations.

§ 5-08 Hiring and Promotion Decisions.

(a) The Department shall not hire or promote anyone who may have contact with inmates, and shall not enlist the services of any contractor who may have contact with inmates, who—

   (1) Has engaged in sexual abuse in a prison, jail, lockup, community confinement facility, juvenile facility, or other institution ;

   (2) Has been convicted of engaging or attempting to engage in sexual activity in the community facilitated by force, overt or implied threats of force, or coercion, or if the victim did not consent or was unable to consent or refuse; or

   (3) Has been civilly or administratively adjudicated to have engaged in the activity described in paragraph (a)(2) of this section.

  1. The Department shall consider any incidents of sexual harassment in determining whether to hire or promote anyone, or to enlist the services of any contractor, who may have contact with inmates.
  2. Before hiring new employees who may have contact with inmates, the Department shall:

   (1) Perform a criminal background records check; and

   (2) Consistent with Federal, State, and local law, make its best efforts to contact all prior institutional employers for information on substantiated allegations of sexual abuse or any resignation during a pending investigation of an allegation of sexual abuse.

  1. The Department shall also perform a criminal background records check before enlisting the services of any contractor or volunteer who may have contact with inmates.
  2. The Department and CHA shall either conduct criminal background records checks at least every five years of current employees and contractors who may have contact with inmates or have in place a system for otherwise capturing such information for current employees.
  3. The Department shall ask all applicants and employees who may have contact with inmates directly about previous misconduct described in subdivision (a) of this section in written applications or interviews for hiring or promotions and in any interviews or written self-evaluations conducted as part of reviews of current employees. The Department shall also impose upon employees a continuing affirmative duty to disclose any such misconduct.
  4. Material omissions regarding such misconduct, or the provision of materially false information, shall be grounds for termination.
  5. Unless prohibited by law and upon the written consent of a Department employee pursuant to New York Civil Rights Law § 50-a, the Department shall 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.
  6. Unless prohibited by law, CHA shall 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.

§ 5-09 Upgrades to Facilities and Technologies.

(a) When designing or acquiring any new facility and in planning any substantial expansion or modification of existing facilities, the Department shall consider the effect of the design, acquisition, expansion, or modification upon the Department’s ability to protect inmates from sexual abuse.
  1. When installing or updating a video monitoring system, electronic surveillance system, or other monitoring technology, the Department shall consider how such technology may enhance the Department’s ability to protect inmates from sexual abuse.

Subchapter C: Responsive Planning

§ 5-10 Evidence Protocol and Forensic Medical Examinations.

(a) The Department shall follow a uniform evidence protocol that maximizes the potential for obtaining usable physical evidence for administrative proceedings and criminal prosecutions.
  1. The protocol shall be developmentally appropriate for youth where applicable, and, as appropriate, shall be adapted from or otherwise based on the most recent edition of the U.S. Department of Justice’s Office on Violence Against Women publication, “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents,” or similarly comprehensive and authoritative protocols developed after 2011.
  2. The Department shall offer all victims of sexual abuse access to forensic medical examinations, whether on-site or at an outside facility, without financial cost, where evidentiarily or medically appropriate. Such examinations shall be performed by Sexual Assault Forensic Examiners (SAFEs) or Sexual Assault Nurse Examiners (SANEs) where possible. If SAFEs or SANEs cannot be made available, the examination can be performed by other qualified medical practitioners. The Department shall document its efforts to provide SAFEs or SANEs.
  3. Rape crisis intervention and counseling services shall be offered and delivered to inmates in the facility in which they are housed (the “Initiative”). CHA shall be responsible for the delivery of such services by qualified victim advocates. For the purposes of this section, a qualified victim advocate is an individual who has been screened for appropriateness to serve in this role and has received education concerning sexual assault and forensic examination issues in general.
  4. As requested by the victim, a qualified victim advocate shall accompany and support the victim through the forensic medical examination process and investigatory interviews and shall provide emotional support, crisis intervention, information, and referrals.
  5. Qualified victim advocates shall assure inmates who request these services that all communications between counselors and inmates shall be kept confidential. Consistent with 40 RCNY § 5-21(b), advocates shall also inform inmates, prior to providing services, of the extent to which their communications with inmates will be monitored and the extent to which reports of sexual abuse will be forwarded to authorities in accordance with mandatory reporting laws.
  6. Services pursuant to this Initiative 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.
  7. CHA shall implement this Initiative by June 1, 2018. By June 1, 2017, CHA shall provide the Board with a written plan describing:

   (1) The services to be provided;

   (2) The credentials of the qualified victim advocates who will provide these services;

   (3) Inmates’ access to qualified victim advocates;

   (4) Privacy and confidentiality of in-person, written, and telephone communications between inmates and qualified victim advocates; and

   (5) Communication to inmates about these services.

  1. CHA shall provide the Board with a quarterly report of the steps taken toward implementation of this Initiative. CHA shall provide the first quarterly report to the Board on July 5, 2017 with respect to the previous three (3) months and on the third business day of the month following the end of each quarter thereafter. CHA shall provide such reports to the Board until the Initiative is fully implemented.
  1. After implementation of this Initiative, CHA shall provide annually a written report to the Board assessing the Initiative’s effectiveness, which shall include the number of inmates who received such services during the year that is the subject of the report. CHA shall provide its first annual report to the Board on July 2, 2019 with respect to the preceding year and within 30 days of the end of each year thereafter.

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

(a) The Department shall ensure that an administrative or criminal investigation is completed for all allegations of sexual abuse and sexual harassment.
  1. The Department shall have in place a policy to ensure that allegations of sexual abuse or sexual harassment are referred for investigation to an agency with the legal authority to conduct criminal investigations, unless the allegation does not involve potentially criminal behavior. The Departmentshall publish such policy on its website. The Department shall document all such referrals.
  2. If a separate entity is responsible for conducting criminal investigations, such publication shall describe the responsibilities of both the Department and the investigating entity.

Subchapter D: Training and Education

§ 5-12 Employee Training.

(a) The Department and CHA shall train all of their employees who may have contact with inmates on:

   (1) The zero-tolerance policy for sexual abuse and sexual harassment;

   (2) How to fulfill their responsibilities under Department and CHA sexual abuse and sexual harassment prevention, detection, reporting, and response policies and procedures;

   (3) Inmates’ right to be free from sexual abuse and sexual harassment;

   (4) The right of inmates and employees to be free from retaliation for reporting sexual abuse and sexual harassment;

   (5) The dynamics of sexual abuse and sexual harassment in confinement;

   (6) The common reactions of sexual abuse and sexual harassment victims;

   (7) How to detect and respond to signs of threatened and actual sexual abuse;

   (8) How to avoid inappropriate relationships with inmates;

   (9) How to communicate effectively and professionally with inmates, including lesbian, gay, bisexual, transgender, intersex, or gender nonconforming inmates; and

   (10) How to comply with relevant laws related to mandatory reporting of sexual abuse to outside authorities.

  1. Such training shall be tailored to the gender of the inmates at the employee’s facility. The employee shall receive additional training if the employee is reassigned from a facility that houses only male inmates to a facility that houses only female inmates, or vice versa.
  2. All current employees who have not received such training shall be trained. The Department and CHA shall provide each of their employees with refresher training every two years to ensure that all employees know the Department’s and CHA’s current sexual abuse and sexual harassment policies and procedures. In years in which an employee does not receive refresher training, the Department and CHA shall provide refresher information on current sexual abuse and sexual harassment policies.
  3. The Department and CHA shall document, through employee signature or electronic verification, that their employees understand the training they have received.
  4. All CHA employees shall be trained by December 31, 2018.
  5. All Department employees shall be trained by December 31, 2021.

   (1) At least 20% of all Department employees shall be trained by December 31, 2017.

   (2) At least 40% of all Department employees shall be trained by December 31, 2018.

   (3) At least 60% of all Department employees shall be trained by December 31, 2019.

   (4) At least 80% of all Department employees shall be trained by December 31, 2020.

  1. The Department and CHA shall report to the Board, in writing and on a quarterly basis, the number of their respective employees who have been trained during that quarter in accordance with this section. The Department and CHA shall provide their first quarterly report to the Board on May 1, 2017 with respect to the previous three months and within 30 days of the end of each quarter thereafter, until such training has been completed.
  2. The training of Department and CHA staff on working with inmates who are transgender or intersex shall include the psychosocial and safety needs of such persons in custody and instruction on communicating in a manner that is respectful of their gender identity. The Department and CHA shall complete such training by January 2, 2018.
  3. The Department and CHA shall provide to the Board on an annual basis the training schedules, training curriculum and credentials of the trainers, in accordance with this section, starting on March 1, 2017 for the previous year and on the first business day of March following the end of each year thereafter.

§ 5-13 Volunteer and Contractor Training.

(a) The Department and CHA shall ensure thateach of their volunteers and contractors who have contact with inmates have been trained on their responsibilities under the Department’s and CHA’s sexual abuse and sexual harassment prevention, detection, and response policies and procedures.
  1. The level and type of training provided to volunteers and contractors shall be based on the services they provide and level of contact they have with inmates, but all volunteers and contractors who have contact with inmates shall be notified of the Department’s and CHA’s zero-tolerance policy regarding sexual abuse and sexual harassment and informed of how to report such incidents.
  2. The Department and CHA shall maintain documentation confirming that their volunteers and contractors understand the training they have received.
  3. The Department and CHA shall complete the training of volunteers by July 31, 2017.
  4. The Department and CHA shall complete the training of contractors by July 31, 2019.
  5. The Department and CHA shall provide to the Board on an annual basis the training schedules, training curriculum and credentials of the trainers, in accordance with this section, starting on March 1, 2017 for the previous year and on the first business day of March following the end of each year thereafter.

§ 5-14 Inmate Education.

(a) During the intake process, inmates shall receive information explaining the Department’s zero-tolerance policy regarding sexual abuse and sexual harassment and how to report incidents or suspicions of sexual abuse or sexual harassment.
  1. Within 30 days of intake, the Department shall 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.
  2. The Departmentshall provide inmate education in formats accessible to all inmates, including those who are limited English proficient, deaf, visually impaired, or otherwise disabled, as well as to inmates who have limited reading skills.
  3. The Department shall maintain documentation of inmate participation in these education sessions.
  4. In addition to providing such education, the Department shall ensure that key information is continuously and readily available or visible to inmates through posters, inmate handbooks, or other written formats.
  5. The Department shall commence providing inmate education described in subdivisions (a) through (e) of this section on April 3, 2017 provided the Department has sufficient resources and necessary staffing.
  6. The Department shall provide to the Board on an annual basis the inmate education schedules, education curriculum and the credentials of the persons providing such education to inmates, in accordance with this section, starting on March 1, 2018 for the preceding year and on the first business day of March following the end of each year thereafter.

§ 5-15 Specialized Training: Investigations.

(a) In addition to the general training provided to all employees pursuant to 40 RCNY § 5-12, the Department shall ensure that its investigators have received training in conducting sexual abuse investigations in confinement settings.
  1. Specialized training shall include techniques for interviewing sexual abuse victims, proper use of Miranda and Garrity warnings, sexual abuse evidence collection in confinement settings, and the criteria and evidence required to substantiate a case for administrative action or prosecution referral.
  2. The Department shall maintain documentation thatDepartment investigators have completed the required specialized training in conducting sexual abuse investigations.
  3. The Department shall complete specialized training of its investigators by April 3, 2017.
  4. The Department shall provide to the Board on an annual basis the training schedules, training curriculum and credentials of the trainers, in accordance with this section, starting on March 1, 2017 for the previous year and on the first business day of March following the end of each year thereafter.

§ 5-16 Specialized Training: Medical and Mental Health Care.

(a) CHA shall ensure that all full- and part-time medical and mental health care practitioners who work regularly in facilities have been trained in:

   (1) How to detect and assess signs of sexual abuse and sexual harassment;

   (2) How to preserve physical evidence of sexual abuse;

   (3) How to respond effectively and professionally to victims of sexual abuse and sexual harassment; and

   (4) How and to whom to report allegations or suspicions of sexual abuse and sexual harassment.

  1. The CHA shall maintain documentation that medical and mental health practitioners have received the training referenced in this section either from the CHA or elsewhere.
  2. Medical and mental health care practitioners shall also receive the training mandated for employees under 40 RCNY § 5-12 or for contractors and volunteers under 40 RCNY § 5-13, depending upon the practitioner’s status at CHA.
  3. The specialized training of CHA’s full- and part-time medical and mental health practitioner staff shall be completed by April 3, 2017.
  4. CHA shall provide to the Board on an annual basis the training schedules, training curriculum and credentials of the trainers, in accordance with this section, starting on March 1, 2017 for the previous year and on the first business day of March following the end of each year thereafter.

Subchapter E: Screening for Risk of Sexual Victimization and Abusiveness

§ 5-17 Screening for Risk of Victimization and Abusiveness.

(a) All inmates shall be assessed during an intake screening and upon transfer to another facility for their risk of being sexually abused by other inmates or sexually abusive toward other inmates.
  1. Intake screening shall ordinarily take place within 72 hours of arrival at the facility.
  2. Such assessments shall be conducted using an objective screening instrument. Such screening instrument shall be provided to the Board.
  3. The intake screening shall consider, at a minimum, the following criteria to assess inmates for risk of sexual victimization:

   (1) Whether the inmate has a mental, physical, or developmental disability;

   (2) The age of the inmate;

   (3) The physical build of the inmate;

   (4) Whether the inmate has previously been incarcerated;

   (5) Whether the inmate’s criminal history is exclusively nonviolent;

   (6) Whether the inmate has prior convictions for sex offenses against an adult or child;

   (7) Whether the inmate is or is perceived to be gay, lesbian, bisexual, transgender, intersex, or gender nonconforming;

   (8) Whether the inmate has previously experienced sexual victimization; and

   (9) The inmate’s own perception of vulnerability.

  1. The initial screening shall consider prior acts of sexual abuse, prior convictions for violent offenses, and history of prior institutional violence or sexual abuse, as known to the Department, in assessing inmates for risk of being sexually abusive.
  2. Within a set time period, not to exceed 30 days from the inmate’s arrival at the facility, the Department will reassess the inmate’s risk of victimization or abusiveness based upon any additional, relevant information received by the Department since the intake screening.
  3. An inmate’s risk level shall be reassessed when warranted due to a referral, request, incident of sexual abuse, or receipt of additional information that bears on the inmate’s risk of sexual victimization or abusiveness.
  4. Inmates may not be disciplined for refusing to answer, or for not disclosing complete information in response to, questions asked pursuant to paragraphs (d)(1), (d)(7), (d)(8), or (d)(9) of this section.
  5. The Department shall implement appropriate controls on the dissemination within the facility of responses to questions asked pursuant to this section in order to ensure that sensitive information is not exploited to the inmate’s detriment by staff or other inmates.

§ 5-18 Use of Screening Information.

(a) The Department shall use information from the risk screening required by 40 RCNY § 5-17 to inform housing, bed, work, education, and program assignments with the goal of keeping separate those inmates at high risk of being sexually victimized from those at high risk of being sexually abusive.
  1. The Department shall make individualized determinations about how to ensure the safety of each inmate.
  2. In deciding whether to assign a transgender or intersex inmate to a facility for male or female inmates, and in making other housing and programming assignments, the Department shall consider on a case-by-case basis whether a placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems.
  3. 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.
  4. A transgender or intersex inmate’s own views with respect to his or her own safety shall be given serious consideration.
  5. Placement and programming assignments for each transgender or intersex inmate shall be reassessed at least twice each year to review any threats to safety experienced by the inmate.
  6. Transgender and intersex inmates shall be given the opportunity to shower separately from other inmates.
  7. The Department shall notify the Board, in writing, of each placement of a transgender or intersex inmate, all information considered in making the determination and the reasons for the housing determination. The Department shall provide the Board with such information commencing on January 5, 2017 and within two (2) business days following the end of each two-week period thereafter.
  8. The Department shall implement this section by the effective date of this rule provided the Department has sufficient resources and necessary staffing.

§ 5-19 Protective Custody.

(a) Inmates at high risk for sexual victimization shall not be placed in involuntary segregated housing unless an assessment of all available alternatives has been made, and a determination has been made that there is no available alternative means of separation from likely abusers. If the Department cannot conduct such an assessment immediately, the Department may hold the inmate in involuntary segregated housing for less than 24 hours while completing the assessment.
  1. Inmates placed in segregated housing for this purpose shall have access to programs, privileges, education, and work opportunities to the extent possible. If the Department restricts access to programs, privileges, education, or work opportunities, the facility shall document:

   (1) The opportunities that have been limited;

   (2) The duration of the limitation; and

   (3) The reasons for such limitations.

Documentation in accordance with subdivision (b) of this section shall commence on July 1, 2017.

  1. The Department shall assign such inmates to involuntary segregated housing only until an alternative means of separation from likely abusers can be arranged, and such an assignment shall not ordinarily exceed a period of 30 days.
  2. If an involuntary segregated housing assignment is made pursuant to subdivision (a) of this standard, the Department shall clearly document:

   (1) The basis for the Department’s concern for the inmate’s safety; and

   (2) The reason why no alternative means of separation can be arranged.

Documentation in accordance with subdivision (d) of this section shall commence on July 1, 2017.

  1. Every 30 days, the Department shall afford each such inmate a review to determine whether there is a continuing need for separation from the general population.
  2. The Department shall issue a written directive to staff incorporating subdivisions (a), (b), (c), (d), and (e) of this section and provide this directive to the Board by July 1, 2017.
  3. The Department shall provide the Board with a quarterly report detailing:

   (1) The basis for its placement of any inmate at high risk of sexual victimization in involuntary segregated housing and the reasons why no alternative means of separation could be arranged; and

   (2) The number of such inmates who remain in involuntary segregated housing for more than 30 days.

  1. Commencing on November 1, 2017, the Department shall provide its first quarterly report to the Board with the respect to the previous three months and within 30 days of the end of each quarter thereafter.

Subchapter F: Reporting

§ 5-20 Inmate Reporting.

(a) The Department shall provide multiple internal ways for inmates to privately report sexual abuse and sexual harassment, retaliation by other inmates or staff for reporting sexual abuse and sexual harassment, and staff neglect or violation of responsibilities that may have contributed to such incidents.
  1. The Department shall also provide at least one way for inmates to report abuse or harassment to a public or private entity or office that is not part of the Departmentand that is able to receive and immediately forward inmate reports of sexual abuse and sexual harassment to Departmentofficials, allowing the inmate to remain anonymous upon request.
  2. Department staff shall accept reports made verbally, in writing, anonymously, and from third parties and shall promptly document any verbal reports.
  3. The Department shall include all the ways inmates can report sexual abuse and sexual harassment on posters in all housing units, intake and program areas, clinics and mess halls, the Inmate Handbook and Visitors Handbook, and on the Department’s public website.
  4. The Department shall provide a method for staff to privately report sexual abuse and sexual harassment of inmates.
  5. The Department shall issue a written directive to all staff stating the method for staff to privately report sexual abuse and sexual harassment of inmates and all the ways inmates can report incidents of sexual abuse and sexual harassment. The Department shall provide this directive to the Board.
  6. The Department shall comply with this section by April 3, 2017, except that the Department’s Inmate Handbook and Visitor’s Handbook shall be updated by December 31, 2017.

§ 5-21 Inmate Access to Outside Confidential Support Services.

(a) The Department shall provide inmates with access to outside victim advocates for emotional support services related to sexual abuse by giving inmates mailing addresses and telephone numbers, including toll-free hotline numbers where available, of local, State, or national victim advocacy or rape crisis organizations. The Department shall enable reasonable communication between inmates and these organizations and agencies, in as confidential a manner as possible.
  1. The Department shall 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.
  2. The Department shall maintain or attempt to enter into memoranda of understanding or other agreements with community service providers that are able to provide inmates with confidential emotional support services related to sexual abuse. The Department shall maintain copies of agreements or documentation showing attempts to enter into such agreements.
  3. The Department shall comply with this section by April 3, 2017.

§ 5-22 Third-Party Reporting.

(a) The Department shall establish a method to receive third-party reports of sexual abuse and sexual harassment and shall distribute publicly information on how to report sexual abuse and sexual harassment on behalf of an inmate.
  1. The Department shall 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 Staff and Agency Reporting Duties.

(a) The Department shall require all staff to report immediately and according to Department policy any knowledge, suspicion, or information regarding an incident of sexual abuse or sexual harassment that occurred in a facility; retaliation against inmates or staff who reported such an incident; and any staff neglect or violation of responsibilities that may have contributed to an incident or retaliation.
  1. Apart from reporting to designated supervisors or officials, staff shall not reveal any information related to a sexual abuse report to anyone other than to the extent necessary, as specified in Department policy, to make treatment, investigation, and other security and management decisions.
  2. Unless otherwise precluded by Federal, State, or local law, including the Health Insurance Portability and Accountability Act of 1996 (HIPAA), New York Mental Hygiene Law § 33.13(10) and New York Public Health Law § 18, medical and mental health practitioners shall be required to report sexual abuse pursuant to subdivision (a) of this section and to inform inmates of the practitioner’s duty to report, and the limitations of confidentiality, at the initiation of services.
  3. If the alleged victim is under the age of 18 or considered a vulnerable adult under a State or local vulnerable persons statute, the Department and CHA shall report the allegation to the designated State or local services agency under applicable mandatory reporting laws.
  4. The Department shall report all allegations of sexual abuse and sexual harassment, including third-party and anonymous reports, to the investigators designated to investigate these allegations.

§ 5-24 Agency Protection Duties.

When the Department learns that an inmate is subject to a substantial risk of imminent sexual abuse, it shall take immediate action to protect the inmate.

§ 5-25 Reporting to Other Confinement Facilities.

(a) Upon receiving an allegation that an inmate was sexually abused while confined at another facility, the head of the facility that received the allegation shall notify the head of the facility where the alleged abuse occurred.
  1. Such notification shall be provided as soon as possible, but no later than 72 hours after receiving the allegation.
  2. The facility initially receiving such allegation shall document that it has provided such notification.
  3. The facility head that receives such notification shall ensure that the allegation is investigated in accordance with these rules.

§ 5-26 Staff First Responder Duties.

(a) Upon learning of an allegation that an inmate was sexually abused, the first security staff member to respond to the report shall be required to:

   (1) Separate the alleged victim and abuser;

   (2) Preserve and protect any crime scene until appropriate steps can be taken to collect any evidence;

   (3) If the abuse occurred within a time period that still allows for the collection of physical evidence, request that the alleged victim not take any actions that could destroy physical evidence, including, as appropriate, washing, brushing teeth, changing clothes, urinating, defecating, smoking, drinking, or eating; and

   (4) If the abuse occurred within a time period that still allows for the collection of physical evidence, ensure that the alleged abuser does not take any actions that could destroy physical evidence, including, as appropriate, washing, brushing teeth, changing clothes, urinating, defecating, smoking, drinking, or eating.

  1. If the first staff responder is not a security staff member, the responder shall be required to request that the alleged victim not take any actions that could destroy physical evidence, and then notify security staff.

§ 5-27 Coordinated Response.

By April 3, 2017, the Department shall develop a written plan to coordinate actions taken in response to an incident of sexual abuse among staff first responders, medical and mental health practitioners, DOI or ID investigators, and facility leadership.

§ 5-28 Agency Protection Against Retaliation.

(a) The Department shall establish a policy to protect all inmates and staff who report sexual abuse or sexual harassment or cooperate with sexual abuse or sexual harassment investigations from retaliation by other inmates or staff, and shall designate which staff members or departments are charged with monitoring retaliation.
  1. The Department shall employ multiple protection measures, such as housing changes or transfers for inmate victims or abusers, removal of alleged 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.
  2. For at least 90 days following a report of sexual abuse, the Department shall monitor 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 shall act promptly to remedy any such retaliation. Items the Department should monitor include any inmate disciplinary reports, housing, or program changes, or negative performance reviews or reassignments of staff. The Department shall continue such monitoring beyond 90 days if the initial monitoring indicates a continuing need. No later than December 31, 2017, the Department shall commence such monitoring of inmates and staff who report incidents of sexual abuse.
  3. In the case of inmates, such monitoring shall also include periodic status checks.
  4. If any other individual who cooperates with an investigation expresses a fear of retaliation, the Department shall take appropriate measures to protect that individual against retaliation.
  5. The Department’s obligation to monitor shall terminate if the Department determines that the allegation is unfounded.
  6. By April 3, 2017, the Department shall issue a written directive to all staff incorporating the provisions of this section and provide this directive to the Board.

§ 5-29 Post-Allegation Protective Custody.

Any use of segregated housing to protect an inmate who is alleged to have suffered sexual abuse shall be subject to the requirements of 40 RCNY § 5-19.

Subchapter H: Investigations

§ 5-30 Criminal and Administrative Agency Investigations.

(a) When the Department conducts its own investigations into allegations of sexual abuse and sexual harassment, it shall do sopromptly, thoroughly, and objectively for all allegations, including third-party and anonymous reports.
  1. Where sexual abuse is alleged, the Department shall use investigators who have received special training in sexual abuse investigations pursuant to 40 RCNY § 5-15.
  2. Investigators shall gather and preserve direct and circumstantial evidence, including any available physical and DNA evidence and any available electronic monitoring data; shall interview alleged victims, suspected perpetrators, and witnesses; and shall review prior complaints and reports of sexual abuse involving the suspected perpetrator.
  3. When the quality of evidence appears to support criminal prosecution, the Departmentshall conduct compelled interviews only after consulting with DOI and/or prosecutors as to whether compelled interviews may be an obstacle for subsequent criminal prosecution.
  4. The credibility of an alleged victim, suspect, or witness shall be assessed on an individual basis and shall not be determined by the person’s status as inmate or staff. The Departmentshall not require an inmate who alleges sexual abuse to submit to a polygraph examination or other truth-telling device as a condition for proceeding with the investigation of such an allegation.
  5. All investigations:

   (1) Shall include an effort to determine whether staff actions or failures to act contributed to the abuse; and

   (2) Shall 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.

  1. Criminal investigations shall be documented in a written report that contains a thorough description of physical, testimonial, and documentary evidence and attaches copies of all documentary evidence where feasible.
  2. Substantiated allegations of conduct that appears to be criminal shall be referred for prosecution.
  3. The Department shall retainall written reports referenced in this section for as long as the alleged abuser is incarcerated or employed by the Department or CHA, plus five years.
  4. The departure of the alleged abuser or victim from the employment or control of the Department or the employment of CHA shall not provide a basis for terminating an investigation.
  5. When outside agencies investigate sexual abuse, the Department shall cooperate with outside investigators and shall endeavor to remain informed about the progress of the investigation.
  6. The Department shall 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 (3) business days after an alleged incident of sexual abuse or sexual harassment is reported to the Department (the “Referral Date”). In the event sexual abuse is alleged, the Department shall conduct such an evaluation after consulting with DOI unless doing so would pose a threat to the safety and well-being of the complainant.
  7. The Department shall 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 that warrant an extension of this deadline (which shall be documented). The Department shall implement this subsection by the effective date of this rule provided that the Department has sufficient resources and necessary staffing.
  8. If an incident of alleged sexual abuse is referred to DOI or the DA for investigation or a decision on immunity, the time for completion of the sexual abuse investigation shall be tolled while the other agency is investigating the matter or making a decision on immunity.
  9. Inmates subject to alleged sexual abuse or sexual harassment shall be interviewed within 72 hours of the Referral Date, absent unusual circumstances (which shall be documented).
  10. All interviews of staff involved in a sexual abuse or sexual harassment incident shall be completed within 30 days of any immunity grants, absent unusual circumstances (which shall be documented).
  11. When requesting an inmate’s statement or interview, the inmate shall be assured that the inmate will not be subject to any form of retaliation for providing information in connection with the investigation of alleged sexual abuse or sexual harassment. Requests for statements or interviews shall be made off the living unit and shall not be made within sight or hearing of other inmates or staff involved in the incident. Inmate interviews shall be conducted in a private and confidential setting.
  12. At the conclusion of an investigation of alleged sexual abuse or sexual harassment, the Department shall prepare a closing memorandum summarizing the findings of the investigation. Within five (5) business days after completion of a closing memorandum, the Department shall provide a copy of it to the Board.
  13. All closing memoranda shall be retained for as long as the alleged perpetrator of sexual abuse or sexual harassment is incarcerated or employed by the Department or CHA, plus five years.
  14. The Department shall issue a written directive to all ID staff incorporating the provisions of this section and provide this directive to the Board.

§ 5-31 Evidentiary Standard for Administrative Investigations.

The Department shall impose no standard higher than a preponderance of the evidence in determining whether allegations of sexual abuse or sexual harassment are substantiated.

§ 5-32 Reporting to Inmates.

(a) Following an investigation into an inmate’s allegation that he or she suffered sexual abuse in a facility, the Department shall inform the inmate as to whether the allegation has been determined to be substantiated, unsubstantiated, or unfounded.
  1. If the Departmentdid not conduct the investigation, it shall request the relevant information from the investigative agency in order to inform the inmate.
  2. Following an inmate’s allegation that a Department or CHA staff member has committed sexual abuse against the inmate, the Department shall subsequently inform the inmate (unless the Department has determined that the allegation is unfounded) whenever:

   (1) The staff member is no longer posted within the inmate’s unit;

   (2) The staff member is no longer employed at the facility;

   (3) The Department learns that the staff member has been indicted on a charge related to sexual abuse within the facility; or

   (4) The Department learns that the staff member has been convicted on a charge related to sexual abuse within the facility.

  1. Following an inmate’s allegation that he or she has been sexually abused by another inmate, the Department shall subsequently inform the alleged victim whenever:

   (1) The Department learns that the alleged abuser has been indicted on a charge related to sexual abuse within the facility; or

   (2) The Department learns that the alleged abuser has been convicted on a charge related to sexual abuse within the facility.

  1. All such notifications or attempted notifications shall be documented.

Subchapter I: Discipline

§ 5-33 Disciplinary Sanctions for Staff.

(a) Department and CHA staff shall be subject to disciplinary sanctions up to and including termination for violating agency sexual abuse or sexual harassment policies.
  1. Termination shall be the presumptive disciplinary sanction for Department and CHA staff who have engaged in sexual abuse.
  2. Disciplinary sanctions for violations of Department and CHA policies relating to sexual abuse or sexual harassment (other than actually engaging in sexual abuse) shall be commensurate with the nature and circumstances of the acts committed, the staff member’s disciplinary history, and the sanctions imposed for comparable offenses by other staff with similar histories.
  3. All terminations for violations of Department and CHA sexual abuse or sexual harassment policies, or resignations by staff who would have been terminated if not for their resignation, shall be reported to law enforcement agencies, unless the activity was clearly not criminal, and to any relevant licensing bodies.

§ 5-34 Corrective Action for Contractors and Volunteers.

(a) Any contractor or volunteer who engages in sexual abuse shall be prohibited from contact with inmates and shall be reported to law enforcement agencies, unless the activity was clearly not criminal, and to relevant licensing bodies.
  1. The Department shall take appropriate remedial measures, and shall consider whether to prohibit further contact with inmates, in the case of any other violation of Department sexual abuse or sexual harassment policies by a contractor or volunteer.

§ 5-35 Disciplinary Sanctions for Inmates.

(a) Inmates shall be subject to disciplinary sanctions pursuant to a formal disciplinary process following an administrative finding that the inmate engaged in inmate-on-inmate sexual abuse or following a criminal finding of guilt for inmate-on-inmate sexual abuse.
  1. Sanctions shall be commensurate with the nature and circumstances of the abuse committed, the inmate’s disciplinary history, and the sanctions imposed for comparable offenses by other inmates with similar histories.
  2. The disciplinary process shall consider whether an inmate’s mental disabilities or mental illness contributed to his or her behavior when determining what type of sanction, if any, should be imposed.
  3. The Department may discipline an inmate for sexual contact with staff only upon a finding that the staff member did not consent to such contact.
  4. 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. The Department may, in its discretion, prohibit all sexual activity between inmates and may discipline inmates for such activity. The Departmentmay not, however, deem such activity to constitute sexual abuse if it determines that the activity is not coerced.

Subchapter J: Medical and Mental Care

§ 5-36 Medical and Mental Health Screenings; History of Sexual Abuse.

(a) If the screening pursuant to 40 RCNY § 5-17 indicates that an inmate has experienced prior sexual victimization, whether it occurred in an institutional setting or in the community, the Department shall ensure that the inmate is offered a follow-up meeting with a medical or mental health practitioner within 14 days of the intake screening.
  1. Any information related to sexual victimization or abusiveness that occurred in an institutional setting shall be strictly limited to medical and mental health practitioners and other staff, as necessary, to inform treatment plans and security and management decisions, including housing, bed, work, education, and program assignments, or as otherwise required by Federal, State, or local law.
  2. Medical and mental health practitioners shall obtain informed consent from inmates before reporting information about prior sexual victimization that did not occur in an institutional setting, unless the inmate is under the age of 18.

§ 5-37 Access to Emergency Medical and Mental Health Services.

(a) Inmate victims of sexual abuse shall receive timely, unimpeded access to emergency medical treatment and crisis intervention services, the nature and scope of which are determined by medical and mental health practitioners according to their professional judgment.
  1. If no qualified medical or mental health practitioners are on duty at the time a report of recent abuse is made, security staff first responders shall take preliminary steps to protect the victim pursuant to 40 RCNY § 5-24 and shall immediately notify the appropriate medical and mental health practitioners.
  2. Inmate victims of sexual abuse while incarcerated shall be offered timely information about and timely access to emergency contraception and sexually transmitted infections prophylaxis, in accordance with professionally accepted standards of care, where medically appropriate.
  3. Treatment services shall be provided to the victim without financial cost and regardless of whether the victim names the abuser or cooperates with any investigation arising out of the incident.

§ 5-38 Ongoing Medical and Mental Health Care for Sexual Abuse Victims.

(a) CHA shall offer medical and mental health evaluation and, as appropriate, treatment to all inmates who have been victimized by sexual abuse in any prison, jail, lockup, or juvenile facility.
  1. The evaluation and treatment of such victims shall include, as appropriate, follow-up services, treatment plans, and, when necessary, referrals for continued care following their transfer to, or placement in, other facilities, or their release from custody.
  2. CHA shall provide such victims with medical and mental health services consistent with the community level of care.
  3. Inmate victims of sexually abusive vaginal penetration while incarcerated shall be offered pregnancy tests.
  4. If pregnancy results from the conduct described in subdivision (d) of this section, such victims shall receive timely and comprehensive information about and timely access to all lawful pregnancy-related medical services.
  5. Inmate victims of sexual abuse while incarcerated shall be offered tests for sexually transmitted infections as medically appropriate.
  6. Treatment services shall be provided to the victim without financial cost and regardless of whether the victim names the abuser or cooperates with any investigation arising out of the incident.

Subchapter K: Data Collection and Review; Audits

§ 5-39 Sexual Abuse Incident Reviews.

(a) The Department shall conduct a sexual abuse incident review at the conclusion of every sexual abuse investigation, including where the allegation has not been substantiated, unless the allegation has been determined to be unfounded.
  1. Such review shall ordinarily occur within 30 days of the conclusion of the investigation.
  2. The review team shall include upper-level management officials, with input from line supervisors, investigators, and medical or mental health practitioners.
  3. The review team shall:

   (1) Consider whether the allegation or investigation indicates a need to change policy or practice to better prevent, detect, or respond to sexual abuse;

   (2) Consider whether the incident or allegation was motivated by race; ethnicity; gender identity; lesbian, gay, bisexual, transgender, or intersex identification, status, or perceived status; or gang affiliation; or was motivated or otherwise caused by other group dynamics at the facility;

   (3) Examine the area in the facility where the incident allegedly occurred to assess whether physical barriers in the area may enable abuse;

   (4) Assess the adequacy of staffing levels in that area during different shifts;

   (5) Assess whether monitoring technology should be deployed or augmented to supplement supervision by staff;

   (6) Prepare a report of its findings, including but not necessarily limited to determinations made pursuant to paragraphs (d)(1) - (d)(5) of this standard, and any recommendations for improvement and submit such report to the facility head and PREA compliance manager.

  1. The Department shall implement the recommendations for improvement, or shall document its reasons for not doing so.
  2. The Department shall provide the Board with all sexual abuse incident review reports on a quarterly basis.

§ 5-40 Data Collection and Review.

(a) The Department shall collect accurate, uniform data for each alleged incident of sexual abuse at facilities (and in transport vehicles used to transport inmates) using a standardized instrument and definitions. For this purpose, the Department shall use the definitions of and related to inmate-on-inmate and staff-on-inmate sexual abuse set forth in subdivisions (a), (b), (c) and (d) of 40 RCNY § 5-02. The Department shall provide the Board with such standardized instrument for its review at least 30 days before first providing the Board with the incident data specified in subdivision (d) of this section.
  1. The Department shall maintain, review and collect data pursuant to subdivisions (a), (d), (f) and (g) of this section from all incident-based documents and databases, including reports, investigation files, and sexual abuse incident reviews.
  2. Within two (2) years of the Effective Date of these rules, the Board will reassess whether the data enumerated in this section is adequate to ensure effective monitoring of the Department’s and CHA’s compliance with the rules embodied in this Chapter.
  3. The Department shall provide the Board with the following data regarding each alleged incident of sexual abuse:

   (1) Date, time and location of alleged incident;

   (2) Nature of alleged sexual abuse (e.g., officer-on-inmate; CHA staff-on-inmate; contractor- or volunteer-on-inmate; inmate-on-inmate, etc.);

   (3) Type of alleged sexual abuse (as defined in subdivisions (a), (b), (c) and (d) of 40 RCNY § 5-02);

   (4) Demographics

      (i) Gender of alleged victim (i.e., male or female);

      (ii) Gender of alleged perpetrator (i.e., male or female);

      (iii) Age of alleged victim (i.e., under age 18, 18 - 21, or over 21);

      (iv) Age of alleged perpetrator (if an inmate) (i.e., under age 18, 18 - 21, or over 21) ;

      (v) Race/ethnic origin of alleged victim (i.e., White-not of Hispanic origin; Black-not of Hispanic origin; Hispanic or Latino; other);

      (vi) Whether the alleged victim is known to be transgender or intersex;

      (vii) Whether the alleged victim is known to be lesbian, gay, or bi-sexual;

      (viii) Whether the alleged victim is known to have any mental, physical or developmental disabilities;

   (5) Who reported the incident, if known (e.g., alleged victim; victim’s family member, inmate other than victim; Department or CHA staff, etc.);

   (6) Method of reporting (e.g., via hotline, verbally or in writing, 311, etc.);

   (7) Video camera surveillance available (yes/no);

   (8) DNA evidence available (yes/no);

   (9) Other physical evidence available (yes/no);

   (10) Rape kit administered, declined or not applicable;

   (11) Date investigation was opened;

   (12) Date investigation was closed (e.g., by filing a closing memorandum or otherwise);

   (13) Whether the incident was substantiated, unsubstantiated or unfounded;

   (14) Whether the alleged perpetrator and alleged victim were separated during the investigation;

   (15) If the alleged perpetrator is a staff person, whether during the investigation, or after it was closed, the staff person was suspended, placed on modified duty, assigned to a no-inmate contact post, assigned to a restricted-inmate contact post, or placed on administrative leave;

   (16) If the alleged perpetrator is a staff person, whether previous allegations of sexual abuse or sexual harassment were lodged against that person;

   (17) If the alleged perpetrator is a staff person, whether the person declined an offer of use immunity pursuant to Mayor’s Executive Order No. 16 and, if so, whether that person was subject to discipline as a result;

   (18) Whether DOI assumed the investigation, and if so, the status of the investigation (e.g., pending; referral made to a DA’s Office, referred back to the Department, etc.);

   (19) Whether the allegation of staff-on-inmate or inmate-on-inmate sexual abuse was referred to a DA’s Office, including whether that DA’s Office declined to prosecute, and if the staff perpetrator was prosecuted, the outcome;

   (20) Whether the allegation was referred for disciplinary action, including (a) whether the Department’s Trials & Litigation Division declined to file disciplinary charges, or if disciplinary charges were filed, the outcome; and (b) whether the alleged staff-member perpetrator resigned in lieu of charges or as part of a negotiated plea.

  1. Unless otherwise precluded by law, CHA will assist the Department in collecting the data enumerated in subdivision (d) of this section.
  2. The Department shall provide to Board the data enumerated in subdivision (d) of this section semiannually, commencing on August 1, 2017 and within 45 days of the end of each six-month period thereafter. The Department shall continue to update data in these reports regarding each alleged incident pending its final outcome.
  3. The Department shall 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 problem areas and trends;

   (2) Taking corrective action on an ongoing basis; and

   (3) Including in a semiannual assessment report to the Board its findings and corrective actions for each facility, as well as the Department as a whole.

  1. Such semiannual assessment report shall also include a comparison of the current six (6) months’ data and corrective actions with those from the prior six (6) months and shall provide an assessment of theDepartment’s progress in addressing sexual abuse and sexual harassment.
  2. Such semiannual assessment reports shall be approved by the Commissioner of the Department, submitted to the Board, and made readily available on the Department’s website.
  3. The Department may redact specific material from semiannual assessment reports when publication would present a clear and specific threat to the safety and security of a facility, or would present privacy or other legal considerations, but must indicate the nature of the material redacted.
  4. The Department shall provide its first semiannual assessment report to the Board on August 1, 2017 and within 45 days of the end of each six-month period thereafter.
  5. The Department shall ensure that all data collected pursuant to this section is securely retained.
  6. Before making data collected pursuant to this section publicly available, the Department shall remove all personal identifiers.
  7. The Department shall maintain all data collected pursuant to this section for at least 10 years after the date of the initial collection unless Federal, State, or local law requires otherwise.

§ 5-41 Audits

The Department shall 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, submitted to PREA-certified auditors pursuant to PREA Standard § 115.93 and PREA Standards §§ 115.401 through 115.405. The Department shall provide such material to the Board within two (2) business days after its submission to the auditors.

Subchapter L: Variances

§ 5-42 Variances

The Department or CHA may apply for a variance from a specific subdivision or section of these 40 RCNY Chapter 5 rules in accordance with the procedures and criteria set forth in 40 RCNY § 1-15.