COR-03-11-00011-P Mental State of an Inmate at the Time of a Superintendent's (Tier III) Hearing

1/19/11 N.Y. St. Reg. COR-03-11-00011-P

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 3

January 19, 2011

RULE MAKING ACTIVITIES

DEPARTMENT OF CORRECTIONAL SERVICES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. COR-03-11-00011-P

Mental State of an Inmate at the Time of a Superintendent's (Tier III) Hearing

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Renumbering of sections 254.6(b)(1)(ii)-(viii) to 254.6(b)(1)(iii)-(ix); and addition of section 254.6(b)(1)(ii) to Title 7 NYCRR.

Statutory authority:

Correction Law, section 112

Subject:

Mental state of an inmate at the time of a Superintendent's (Tier III) hearing.

Purpose:

To create a designation to indicate to the hearing officer that an inmate's mental health is at issue.

Text of proposed rule:

The Department of Correctional Services is renumbering sub-sections 254.6(b)(1)(ii)-254.6(b)(1)(viii) as 254.6(b)(1)(iii)-254.6(b)(ix) and is adding a new sub-section 254.6(b)(1)(ii) as indicated below:

(b) Mental state or intellectual capacity. When an inmate's mental state or intellectual capacity is at issue, a hearing officer shall consider evidence regarding the inmate's mental condition or intellectual capacity at the time of the incident and at the time of the hearing in accordance with this section.

(1) For the purposes of this section, an inmate's mental state shall be deemed at issue when:

(i) the inmate is classified as level 1 by the Office of Mental Health (OMH), as indicated on the hearing record sheet;

(ii) the inmate is designated as an "S" by OMH, as indicated on the hearing record sheet;

(iii) the inmate is charged with engaging in an act of self-harm in violation of rule 123.10 (section 270.2[B][23][i] of this Title), as indicated on the misbehavior report;

([ii]iv) the incident occurred while the inmate was being transported to or from the Central New York Psychiatric Center (CNYPC), as alleged in the misbehavior report;

([i]v) the inmate was an inpatient at the CNYPC within nine months prior to the incident, as indicated on the hearing record sheet;

(vi) the incident occurred while the inmate was assigned to an OMH satellite unit, or intermediate care program, as indicated on the hearing record sheet;

(vii) the incident occurred while the inmate was being escorted to or from an OMH satellite unit or intermediate care program, as alleged in the misbehavior report;

(viii) the hearing was delayed or adjourned, after an extension of time was obtained in accordance with section 251-5.1 of this Title, because the inmate became an inpatient at the CNYPC or was assigned to the OMH satellite unit; or

([vii]ix) it appears to the hearing officer, based on the inmate's testimony, demeanor, the circumstances of the alleged offense or any other reason, that the inmate may have been mentally impaired at the time of the incident or may be mentally impaired at the time of the hearing.

Text of proposed rule and any required statements and analyses may be obtained from:

Maureen E. Boll, Deputy Commissioner and Counsel, New York State Department of Correctional Services, 1220 Washington Avenue, Harriman State Campus - Building 2, Albany, NY 12226-2050, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

Statutory Authority

Sections 112 of Correction Law assigns to the Commissioner the superintendence, management and control of all inmates confined within correctional facilities of all matters relating to the government, discipline, and policing thereof.

Legislative Objective

By vesting the commissioner with the rulemaking authority as stated in section 112 of Correction Law, the legislature intended the commissioner to promulgate such rules and regulations governing inmate discipline that are in the best interest of institutional and public safety and welfare, but also to provide a reasonable and fair means to administer disciplinary action in the event that a mentally ill inmate violates an institutional rule of conduct.

Needs and Benefits

The change would add an OMH "S" designation to the list of automatic triggers that would require a hearing officer's consideration of an inmate's mental state in Tier III inmate disciplinary hearings (Superintendent's Proceedings). The "S" designation is assigned to inmates that have been determined by OMH to currently have or to have recently had, a serious mental illness. The consideration of an inmate's mental state in such cases should enhance the Tier III inmate disciplinary hearing process by providing the hearing officer with additional input that may be relevant in reaching a proper disciplinary disposition.

Costs

a) To agency, the state and local governments: None.

b) Costs to private regulated parties: None. The proposed amendment does not apply to private parties.

c) This cost analysis is based upon the expectation that the number of additional Superintendent's Hearings where an inmate's mental state health would have to be considered as a result of this proposed change will be modest. This conclusion is based on the fact that the current regulation already lists eight other criteria requiring consideration of an inmate's mental state in Superintendent's Hearings and that the procedures for such consideration are already in place.

Local Government Mandates

There are no new mandates imposed upon local governments by these proposals. The proposed amendments do not apply to local governments.

Paperwork

There are no new reports, forms or paperwork that would be required as a result of amending these rules. The designation is being added to a form that already exists and is in use.

Duplication

These proposed amendments do not duplicate any existing State or Federal requirement.

Alternatives

No alternatives are apparent and none have been considered. The proposed amendment was recommended by the advocacy group Disability Advocates Incorporated. With the continued assistance and input of clinical professionals from the Office of Mental Health, the Department believes it can provide this additional enhancement to the Tier III inmate disciplinary process.

Federal Standards

There are no apparent minimum standards of the Federal government regarding this issue.

Compliance Schedule

The Department of Correctional Services will achieve compliance with the proposed rules upon publication in the New York State Register.

Regulatory Flexibility Analysis

A regulatory flexibility analysis is not required for this proposal since it will not impose any adverse economic impact or reporting, record keeping or other compliance requirements on small businesses or local governments. This proposal merely establishes a designation on an established form, so that the disciplinary hearing officer will note that an inmate’s mental health is at issue and must then consider required evidence in accordance with established Department procedures.

Rural Area Flexibility Analysis

A rural area flexibility analysis is not required for this proposal since it will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on rural areas. This proposal merely establishes a designation on an established form, so that the disciplinary hearing officer will note that an inmate’s mental health is at issue and must then consider required evidence in accordance with established Department procedures.

Job Impact Statement

A job impact statement is not submitted because this proposed rule will have no adverse impact on jobs or employment opportunities. This proposal merely establishes a designation on an established form, so that the disciplinary hearing officer will note that an inmate’s mental health is at issue and must then consider required evidence in accordance with established Department procedures.