Testimony of Brian Fischer, Commissioner
New York State Department of Correctional Services
Before New York State Senate Task Force on Government Efficiency
March 24, 2010

Senator Klein, Senators, Thank you for affording me this opportunity to testify today.

Allow me to begin by raising a point that may surprise a number of people here.

There has been an assumption that our prison population has dropped as rapidly as it has due to what are commonly referred to as earned early release programs such as Merit Time, Shock Incarceration, Supplemental Merit Time and others. While such programs have contributed to the overall drop in the prison population, the declining crime rate has had a more profound impact. Our prison population continues to drop because we are simply seeing fewer offenders enter the system. This positive phenomenon has allowed us to safely reshape the agency and save money. Should this trend continue, it is both reasonable and prudent to anticipate an additional drop in the prison population this coming fiscal year, perhaps as much as 1,000 or more. That is where we can find additional major savings for New York’s taxpayers without compromising the safety and security of our prisons.

Having said this, allow me to respond to a number of fiscal and operational issues in response to specific questions sent to me last week and other matters of concern to all of us.

Overtime

Overtime is authorized to meet our obligations in maintaining safe and secure prisons and essential services such as heat and electricity, food and medical care. Overtime is caused by a number of systemic issues: vacancies due to attrition and vacancies due to our inability to hire easily, emergency hospital trips and outside hospital coverage, required security coverage during construction, facility lockdowns, absenteeism due to worker’s compensation and illnesses, military leave, jury duty and many other smaller issues. Overtime is also necessary to provide coverage for specialized training of our staff that is critical to the Department. We factor in $3.2 million in overtime to make sure our 1,200 Correctional Emergency Response Team members and 400 Crisis Intervention Unit members receive monthly training. These are the men and women we need trained and ready to go when there are major incidents in a facility.

The nurses at Bedford Hills Correctional Facility who earn a disproportionate amount of overtime are a case study in overtime problems.

Because of the job market for health care workers in the Westchester County and New York City area, and the salaries for nurses set by the Civil Service Commission, we have consistently been unable to hire enough nurses to provide the care for our inmate/patients that is constitutionally mandated.

Legislation was passed this year that did away with mandatory overtime for nurses, except in an identifiable emergency. Vacancies do not constitute an emergency. Work schedules for nurses are developed in four-week cycles, in part to avoid non-emergency overtime. Volunteers place their names into schedule slots where there is no coverage. After the volunteers sign up, remaining schedule slots are filled by outside per diem nurses who are considerably more expensive than the cost of overtime to our staff.

PEF’s and CSEA’s contracts, and that of NYSCOPBA, allow for staff to volunteer for as much overtime as they want, including working on days they would normally be off, called RDO’s. As an agency, we limit overtime to 16 hours per day. If we had the ability to fill all our vacant nurse positions at Bedford Hills, the employee would not have the opportunity to work so many hours of overtime.

As for overtime related to workers’ compensation, requests were made to GOER to negotiate changes in the NYSCOPBA contract. A recommendation that would save the state millions of dollars dealt with separating out direct inmate incident-related injuries from all others. For the inmate-related injuries, no change in the program would occur. For all injuries not related to inmates, the recommendation was for NYSCOPBA to accept the same plan as that which is in place for PEF and CSEA. Analysis has shown that about 74% of workers compensation by security personnel is unrelated to direct inmate contact or responses to inmate actions. This proposed change in the NYSCOPBA contract has not been adopted.

Correction Law Section 29(4) requires that each year I submit a detailed annual report to the Legislature on the staffing of correction officers and sergeants throughout the entire system. Such report includes the following factors: the number of closed posts designed to minimize overtime needs, the total amount of overtime accrued, and the overall overtime expenditures that resulted.

Central Office Staff

Central Office staff represents about 2% or 739 of the entire agency’s workforce of 29,982 full-time equivalent employees. Not every position in Central Office is a management position, nor does every staff person on the Central Office payroll work in Albany. More than half the Central Office staff are in titles below Director and are CSEA, PEF and NYSCOPBA members.

Since 2007, 80 items were added to Central Office, all directly related to new programs mandated by the Legislature and required to meet new court resentencing decisions and Information Technology (IT) expansion. Of those, 32 were IT positions to reduce our dependence on outside contracts, and they remain largely unfilled, 10 are temporary jobs so we can install civilian personal alarms in facilities, and eight were created so we could operate a second training site and have since expired. At the same time, and again directly related to the same mandates, 792 positions were added across the agency - 340 security staff and 452 civilians.

The complexities and requirements placed on the agency are represented by the largest units within Central Office: IT, Health Services, Budget & Finance, Personnel, Legal Counsel, Labor Relations and Facilities Planning.

In addition, legislative changes to Shock, creation of the Limited Credit Time Allowance, the resentencing of Class A and B drug offenders and the recent court decisions requiring the resentencing of inmates all require complex behind-the-scenes activity that are labor intensive and have been accomplished by our workforce with relatively minor expansion.

To reduce the cost of Central Office, two actions have been taken; the first was to cut the number of filled positions by 74 – despite the addition of the 80 required items. The second was to hold back filling critical positions throughout the year for a cash savings of $1.2 million. Agency-wide, we have 1,020 fewer positions filled today than when we did when the fiscal year started. And by delaying the filling of facility executive team items, an additional $4.1 million was saved.

Health Services, for example, has 105 persons who daily deal with both medical and mental health issues. Of those, 67 are based in Albany and 48 are based in the field as regional personnel such as Infection Control Nurses and Senior Utilization Review Nurses.

Several years ago, the Department contracted with outside contractors to arrange for medical care by specialists, hospital stays and payment for these services. Long before PEF argued against such contracts, the Department dropped its contracts and hired staff who have saved the state millions by carefully reviewing all hospital stays, developing provider contracts with physicians and hospitals, and centralizing all payments for outside medical service, a difficult problem originally left to each facility to contend with. The staff in our Coordinated Specialty Care Unit has improved the consistency and quality of the health care available to inmates throughout the State while saving the State money by systematically arranging for health care as efficiently as possible by considering the security cost and safety implications of health care service arrangements.

Combining Administrations

The idea of combining two administrations into one at some closely located facilities is, in my opinion, counterproductive. Each facility is unique, with its own generalized personality due to the make-up of staff and the offender population.

I was a Supervising Superintendent for over 15 years before becoming the Commissioner. Staff and offenders need to know who their boss is and see him or her walk around and be accountable for decisions that must be made. Meeting with staff, the local unions and the inmate liaison committees are critical administrative matters. Likewise, paying attention to disciplinary appeals, special housing time cuts and interacting with staff from the Office of Mental Health require full-time attention.

Combining some administrative functions seems reasonable, until you start looking at what can be combined and whether or not it diminishes the ability to operate effectively. While costs may be reduced, effectiveness may be lost.

Combining personnel and payroll offices has been tried, but problems transmitting documents back and forth created problems. Staff at a facility want to get direct answers to complicated issues over workers’ compensation, time and attendance, payroll discrepancies and the like. They do not want to be referred to staff at another facility who may give priority attention to their own facility’s staff. As the agency’s computerized network expands in the next year, centralizing such services becomes more realistic.

Where we can effectively, we have combined operations such as commissary and laundry at co-located facilities, and have realized efficiencies without losing effectiveness. Likewise, we have eliminated some infirmary units in co-located sites, reducing staff levels without diminishing the delivery of medical care. We have also consolidated infirmaries in eight facilities in various parts of the state.

More cost efficiencies are being planned. The Department is working on centralizing our inmate accounts program, and looking at a single source commissary provider. I believe we can make our staff work smarter and more efficiently through these efforts, especially since staff vacancies and staff reductions are inevitable.

By next spring, the Department will begin to operate an automated, centralized pharmacy operation. This will allow us to reduce our dependency on local outside pharmacies and reduce the workload of facility staff. Once operational, we will be able to extend our service to other State agencies and even county jails in the same manner as we help county jails save money by providing cook chill food from our centralized food production program.

Planned Mental Health Expansion and Other State Agency Agreements

By statute, the Office of Mental Health (OMH) is required to provide forensic psychiatric services inside the prisons. No other state agency is authorized to provide services within correctional facilities. Since 2007, when a court settlement agreement was reached, DOCS and OMH have worked on expanding the number of beds and programs designed to deal with inmates with serious mental health issues.

In anticipation of meeting the requirements of the Special Housing Exclusion Law by the statutory deadline of July 2011, the two agencies have created a Residential Mental Health Unit at Marcy Correctional Facility and have broken ground on a second unit at Five Points Correctional Facility.

With respect to working with OMH, our two agencies recently redefined which prisons would receive OMH resources and which would not. This was based on OMH’s ability to attract and retain staff in some locations but not in others, usually rural areas. Fiscally, the Department pays for all psychotropic medications and reimburses OMH for the staff assigned to units we call Intensive Care Programs.

DOCS works cooperatively with other agencies, particularly Parole and OASAS in re-entry efforts. In addition, DOCS works with the Department of Health on mutually related issues, especially Medicaid and HIV oversight.

Medical Services and Outside Hospitals

Local hospitals are reluctant to take in prisoners, except for emergency care. Most small hospitals do not have the specialty care clinics and services the inmates require. Almost all the hospitals do not want to provide space for a secure prison ward where correction officers can provide security. Where we do have such units, we have agreements with local county jails where they can use a vacant bed in our unit, thus saving the county money.

Where we do have agreements with local hospitals, we have to work out payment schedules that often require us to pay above the standard Medicaid rate. Because of this, and the fact that private hospitals don’t want to deal with prisoners, over the years we have entered and then lost contracts with hospitals throughout the state.

The Department has five Regional Medical Units strategically located across the State. They house inmates who need 24-hour medical services beyond that which is available in a facility infirmary. The Walsh Regional Medical Unit at Mohawk Correctional Facility takes in even more seriously ill inmates. Using these sites maximizes savings in two ways: we do not have to keep inmates in expensive outside hospitals, and we can pull inmates in from outside hospitals after surgery and allow them to convalesce in one of our units, rather than remain in the hospital.

State Readies

Our current policy calls for the Department to take all “state ready” prisoners within 10 days of being notified, or pay the county for holding them, retroactive to the day they notify us. By working closely with each county jail, “state readies” are accepted into the system usually within five days. When the system was overcrowded and we could not accept “state readies” within established timeframes, the Department was forced to contract with local jails to keep the inmates and paid out millions each year. In 1999-2000, we paid out $55 million. This fiscal year, we have paid out only $18,000.

We have also opened two upstate facilities, Auburn and Albion, to allow county jails to bring “state readies” to these facilities instead of transporting them to Downstate in Dutchess County and Bedford Hills in Westchester. These changes have saved many county jails significant money.

Parole Violators

Current law, specifically Executive Law Section 259-I (3) (b), mandates that final hearings held on Parolees charged with a rule violation must take place in the county of the violation. A principal issue behind this law relates to the need for Parolees to be able to call witnesses at their hearings. Not every county has a state prison in the vicinity. An Article VII was introduced in 2007 that would have overridden the current law by authorizing such hearings to be conducted through videoconferencing should a county jail wish to enter into a contract with the Department. The bill was not approved, due in part to objections of defense attorneys and the lack of viable videoconference networks in many sites.

Analysis by DCJS shows that the average time for Parole to hold a final hearing in order for the county jail to declare the offender a state ready is 29 days in non-NYC counties and 20 days in NYC.

Boarding Locally Sentenced Inmates

Until last year, the Department was prohibited from boarding inmates serving definite sentences in local county jails. When the law was changed, there was a discussion with the New York City Department of Correction. New York City wanted us to board about 750 to 1,000 sentenced offenders. We could not reach an agreement on the cost. DOB asked for more money than the City was willing to pay.

County jails hold three types of offenders; pre-sentenced detainees, sentenced inmates and Parole violators who become “state readies.” DOCS cannot house pre-sentenced detainees as they have legal rights that make holding them extremely problematic.

To house sentenced county inmates, with the longest possible sentence of one year, DOCS would want to place them in either a minimum security or low medium security facility. This would mean, in almost all cases, transferring these inmates away from their home counties, complicating visiting and other issues.

In terms of cost, the daily cost per inmate in a State prison is higher than the daily cost of a county jail, primarily related to security, program, medical and mental health costs. In addition, transportation costs would be incurred by either party, particularly if a sentenced county inmate had to go back to court on other charges or appeals.

Staff Housing

There are approximately 1,217 houses, apartments, single and double occupancy rooms throughout the system. In July, some 969 spaces were occupied by security personnel of all ranks, 73 by administrators of various titles, and 93 by civilians like maintenance workers, chaplains, doctors, nurses, etc. No employee lives in any residence rent free. Annually, the State collects $2.5 million in rental fees from DOCS staff.

There are 24 houses identified by size, type and location as Superintendents’ residences. Of those, 7 are occupied by Superintendents, 1 by a Superintendent and one other staff person, 2 have been converted to other uses and should no longer be considered residences, 3 by other titled administrators, 1 was shut down and 10 are vacant.

While some of these homes were built when the prisons were built, others were built by other agencies like Mental Hygiene and OMRDD. The rent paid on all residences is determined by the Division of the Budget.

Almost all the residences are on State property and are connected to the prison for water, electricity, and sewer lines.

It should be noted that in the past 12 months the agency converted an air force barrack at the Stewart Airport in Orange County at a cost of $233,675 for staff working in the region. This was done to replace housing at a place called Harlem Valley in Dutchess County. The former, and now the latter sites, were and are used almost exclusively by security personnel.