CMC-45-15-00024-P Manner in Which Significant Correctional Facility Incidents Are Reported to the Commission of Correction

11/10/15 N.Y. St. Reg. CMC-45-15-00024-P

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 45

November 10, 2015

RULE MAKING ACTIVITIES

STATE COMMISSION OF CORRECTION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. CMC-45-15-00024-P

Manner in Which Significant Correctional Facility Incidents Are Reported to the Commission of Correction

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

Proposed Action:

Amendment of sections 7022.3, 7022.4, 7406.3, 7406.4 and 7508.2 of Title 9 NYCRR.

Statutory authority:

Correction Law, sections 45(6), (6-b), (15) and 47(2)

Subject:

Manner in which significant correctional facility incidents are reported to the Commission of Correction.

Purpose:

To allow electronic filing of reportable incidents to the Commission of Correction.

Text of proposed rule:

Paragraph (1) of subdivision (a) of section 7022.3 of Title 9 is amended to read as follows:

(1) all major disturbances, escapes, inmate group actions, personnel group actions, hostage situations, firearm discharges, natural/civil emergencies, and major maintenance/services disruptions shall be reported [by telephone] immediately upon occurrence or discovery [and all completed report forms required by], in a form and manner prescribed by the commission, as set forth in the commission’s Reportable Incident Guidelines for County Correctional Facilities [shall be transmitted by facsimile within 24 hours thereafter]; and

Paragraph (2) of subdivision (a) of section 7022.3 of Title 9 is amended to read as follows:

(2) all other reportable incidents shall be reported [by transmitting all report forms required by] in a form and manner prescribed by the commission, as set forth in the commission’s Reportable Incident Guidelines for County Correctional Facilities [by facsimile], within 24 hours of occurrence or discovery.

Paragraph (2) of subdivision (a) of section 7022.4 of Title 9 is amended to read as follows:

(2) the commission, within six hours of pronouncement of death, regardless of the time of day or day of week, [by both telephone and report submitted by facsimile] in a form and manner prescribed by the commission’s medical review board as described in the commission’s Reportable Incident Guidelines for County Correctional Facilities.

Section 7406.3 of Title 9 is amended to read as follows:

(a) As required in section 7406.2 of this Part, whenever a reportable incident occurs at a secure facility, OCFS shall report such incident to the Commission pursuant to the following requirements:

(1) all major disturbances, escapes, resident group actions, personnel group actions, hostage situations, natural/civil emergencies, major maintenance/service disruptions, or any incident during which control at a secure facility is lost or partially lost shall be reported [by telephone] immediately upon occurrence or discovery[, and followed up with a report, reduced to writing] in a form and manner as required by the Commission[, and shall be sent to the Commission within 24 hours].

(2) all assaults, sexual assaults, sexual abuse, employee misconduct, communicable reportable disease, contraband, escape attempts, fires, attempted suicides, self-inflicted injuries, serious accidental injuries, or occurrence(s) that disrupt the normal operations of a secure facility or that involve injury to residents or staff resulting in hospital treatment shall be reported, [via telephonic facsimile or electric or digitally transmitted data,] in a form and manner as required by the commission, within 24 hours of occurrence or discovery.

[(b) The initial telephone report required pursuant to subdivision (a) of this section shall be made in a form and manner as required by the Commission.]

([c]b) OCFS shall provide follow-up reports for specified incidents which may be required by the Commission. Such follow-up reports shall be submitted in writing to the Commission in a form and manner as required by the Commission, as soon as practicable, but no later than 30 days following the initial [telephone] report.

([d]c) When additional pertinent facts are discovered about an incident after OCFS has submitted the follow-up report to the Commission, such information shall be forwarded in writing, in a form and manner as required by the Commission, as soon as practicable, but no later than 14 days following discovery.

Subdivision (a) of section 7406.4 of Title 9 is amended to read as follows:

(a) OCFS shall report the death of any resident listed on its official count of secure facility residents to the commission [by telephonic facsimile] within six hours of pronouncement of death, in a form and manner prescribed by the commission.

Subdivision (a) of section 7508.2 of Title 9 is amended to read as follows:

(a) Except as provided in subdivision (b) of this section, reportable incidents shall be reported to the commission [by mail] within 24 hours of occurrence in a form and manner prescribed by the commission.

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

Deborah Slack-Bean, Senior Attorney, New York Sate Commission of Correction, Alfred E. Smith State Office Building, 80 S. Swan Street, 12th Floor, Albany, NY 12210, [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

1. Statutory authority:

Subdivision (6) of section 45 of the Correction Law authorizes the Commission to promulgate rules and regulations establishing minimum standards for the care, custody, correction, treatment, supervision, discipline, and other correctional programs for all person confined in the correctional facilities of New York State. Similarly, subdivision (6-b) of section 45 of the Correction Law authorizes the Commission to promulgate rules and regulations, in consultation with the Office of Children and Family Services (OCFS), establishing minimum standards for the care, custody, rehabilitation, treatment, supervision, discipline, and other programs for correctional facilities operated by OCFS. Subdivision (2) of section 47 of the Correction Law requires every administrator of a correctional facility to report the death of in an inmate in the manner and form as required by the Commission’s Medical Review Board. Finally, subdivision (15) of section 45 of the Correction Law allows the Commission to adopt, amend or rescind such rules and regulations as may be necessary or convenient to the performance of its functions, powers and duties.

2. Legislative objectives:

By vesting the Commission with this rulemaking authority, the Legislature intended the Commission to promulgate and maintain minimum standards which provide for the efficient and effective monitoring and investigation of serious or potentially problematic incidents and deaths occurring in local correctional facilities and OCFS secure facilities.

3. Needs and benefits:

As currently constructed, sections 7022.3, 7022.4, 7406.3, 7406.4 and 7508.2 of Title 9 NYCRR set forth the manner and schedule by which local correctional facilities and OCFS secure facilities must report to the significant events and incidents to the Commission, such as an inmate death, escape, hostage situation, natural or civil emergency, maintenance or service disruption, or assault. In practice, local correctional facilities report significant incidents and inmate deaths by both telephone and the completion and faxing of a paper form to the Commission. OCFS and the New York City Department of Correction both report telephonically and electronically submit incident data in varying forms. All such reported data is thereafter manually entered by Commission staff into a database accessible only to the Commission.

In partnership with the New York State Office of Information and Technology Services (ITS), the Commission is developing a platform whereby all such incidents will be electronically reported and maintained via the eJusticeNY Integrated Justice Portal. Besides the obvious benefits to SCOC’s data collection and management, correctional facilities will have the ability to search an individual inmate’s incident history in all adult correctional facilities statewide, providing valuable information to assist in the inmate’s risk assessment and classification.

4. Costs:

a. Costs to regulated parties for the implementation of and continuing compliance with the rule: None. All such regulated parties currently have access to the eJusticeNY Integrated Justice Portal. Changing the reporting manner from paper form/facsimile to electronic may serve to reduce facility staff time and resources in preparing and transmitting reports.

b. Costs to the agency, the state and local governments for the implementation and continuation of the rule: None. As set forth above in subdivision (a), there will be no additional costs to local governments or to OCFS.

c. This statement detailing the projected costs of the rule is based upon the Commission’s oversight and experience relative to the operation and function of local correctional facilities and secure facilities operated by OCFS.

5. Local government mandates:

None.

6. Paperwork:

No change is sought to the specific incident information that must be reported, and thus this rule does not require any additional paperwork on regulated parties. Changing the reporting manner from paper form/facsimile to electronic may serve to reduce facility staff time and resources in preparing and transmitting reports.

7. Duplication:

This rule does not duplicate any existing State or Federal requirement.

8. Alternatives:

The alternative, maintaining the current regulations that require local correctional facilities and OCFS secure facilities report significant incidents and deaths by facsimile or varied electronic means, was explored by the Commission. This alternative was rejected upon the Commission’s finding that requiring incident reporting via the eJusticeNY Integrated Justice Portal would benefit the Commission’s data collection and management, allow correctional facilities to search an individual inmate’s incident history in all adult correctional facilities statewide, and serve to reduce facility staff time and resources in preparing and transmitting reports.

9. Federal standards:

There are no applicable minimum standards of the federal government.

10. Compliance schedule:

Each local correctional facility and OCFS secure facility is expected to be able to achieve compliance with the proposed rule immediately.

Regulatory Flexibility Analysis

A regulatory flexibility analysis is not required pursuant to subdivision three of section 202-b of the State Administrative Procedure Act because the rule does not impose an adverse economic impact on small businesses or local governments. The proposed rule seeks only to allow local correctional facilities, secure facilities operated by the Office of Children and Family Services, and municipal police agencies to electronically report significant incidents and inmate deaths to the Commission of Correction. Accordingly, it will not have an adverse impact on small businesses or local governments, nor impose any additional significant reporting, record keeping, or other compliance requirements on small businesses or local governments.

Rural Area Flexibility Analysis

A rural area flexibility analysis is not required pursuant to subdivision four of section 202-bb of the State Administrative Procedure Act because the rule does not impose an adverse impact on rural areas. The proposed rule seeks only to allow local correctional facilities, secure facilities operated by the Office of Children and Family Services, and municipal police agencies to electronically report significant incidents and inmate deaths to the Commission of Correction. Accordingly, it will not impose an adverse economic impact on rural areas, nor impose any additional significant record keeping, reporting, or other compliance requirements on private or public entities in rural areas.

Job Impact Statement

A job impact statement is not required pursuant to subdivision two of section 201-a of the State Administrative Procedure Act because the rule will not have a substantial adverse impact on jobs and employment opportunities, as apparent from its nature and purpose. The proposed rule seeks only to allow local correctional facilities, secure facilities operated by the Office of Children and Family Services, and municipal police agencies to electronically report significant incidents and inmate deaths to the Commission of Correction. As such, there will be no impact on jobs and employment opportunities.