Department of Corrections and Community Supervision

Testimony of Brian Fischer, Commissioner
New York State Department of Correctional Services
Before New York State Senate Committee on Crime Victims, Crime and
Correction, March 17, 2009

Chairwoman Hassell-Thompson, distinguished members of the Senate Crime Victims, Crime and Correction Committee, I am Brian Fischer, Commissioner of the Department of Correctional Services. Joining me here today is Richard Miraglia, Associate Commissioner with the Office of Mental Health. Thank you for affording us the opportunity to present testimony on the very important subject, Governor Paterson’s proposal to postpone the effective date of the SHU Exclusion Law.

I believe the fiscal implications of the issue before us today have unfortunately overshadowed the operational and programmatic elements. Those are the elements that go to the heart of the quality and extent of the treatment and programming we provide inmates with serious mental illnesses.

I believe there is a need to reconsider a final target date for the implementation of all the requirements of the SHU Exclusion Law based upon our record of progress, and for the following reasons.

The most significant component of the SHU Law is the requirement that any seriously mentally ill inmate (SMI) serving more than 30 days of disciplinary confinement in any correctional facility’s special housing unit (SHU) be transferred out of that setting.

On September 1, 2009, we will open the Residential Mental Health Unit (RMHU) at Marcy Correctional Facility. It will be the first of its kind in the nation and the most comprehensive and complex mental health prison treatment program developed in the past 20 years. A total of 100 inmate-patients who have been diagnosed as seriously mentally ill, and who have committed serious acts of misconduct while in prison, will be brought together there and offered up to four hours per day of out-of-cell therapeutic programming and/or mental health treatment, primarily in open group settings, five days a week, as required by the SHU Exclusion Law.

Although some advocates allege that this program does not represent a new approach, it has been recommended by outside, nationally recognized experts like Dr. Jeffrey Metzner, who was just appointed negotiator between the Wisconsin Department of Corrections and the United States Department of Justice in Wisconsin’s requirement to upgrade mental health services to inmates.

Whenever we open a new facility, regardless of the type, we phase inmates in over time to protect staff and inmates alike as physical and operational components are carefully assessed and modifications are made as situations warrant. In this particular case, all staff will also be required to receive 7 days of specialized training from OMH and DOCS, even before the first inmate-patient arrives. I cannot, in either good conscience or in accordance with good correctional practices, transfer in 100 mentally ill inmates in less than 9 weeks. Instead, we plan to bring in about 10-12 per week. Each inmate-patient requires an orientation from both DOCS and OMH staff.

Following this phase-in period of about nine weeks, both the Office of Mental Health and my Department will need at least 10 months to determine whether the program designed on paper is as effective as we had hoped. This time will also allow for an evaluation regarding how any additional RMHU’s could be modified. For example, it may be that the first RMHU might need to be the most secure and structured for the most disruptive inmates. However, other SMI inmates who pose less of a security concern might be better served in a unit that continues to provide structured programs in a setting that also affords enhanced freedom of movement. Perhaps inmate-patients from this first unit could graduate into a less structured unit based on treatment progress. In the end, every special unit developed has the goal of getting the inmate-patient released from it and returned or at least mainstreamed back into general population or another environment where the inmate-patient can function effectively.

Once we can determine the best way to proceed and complete all design work on future units, it will take at least 18 months for the Office of General Services to issue bid proposals, award a bid and construct a new facility. We have already developed a design framework for another two RMHU units, but both might still need serious revision, especially if we can provide the needed treatment in the least restrictive environment without compromising the safety of staff and inmates alike.

Beyond any plans for future RMHUs, my Department and OMH have already made significant progress in addressing the needs of seriously mentally ill inmates, especially in the last two years. First and foremost, we began in 2007 screening every inmate who enters our system and providing immediate mental health care as warranted. Until then, we only screened about 40 percent of entering inmates. We also enhanced the protocols for factoring an inmate’s mental health into our disciplinary determinations, and trained correction officers and other staff who work in SHUs, Level 1 and 2 facilities in critical mental health issues. These and other efforts have resulted in a significant reduction in the number of inmates with SHU sanctions of more than 30 days – and thus a significant reduction in the number who would be subject to the SHU Exclusion Law’s requirements. As of now, out of nearly 60,000 inmates in our system and approximately 8,650 on the OMH caseload, there are only about 220 seriously mentally ill inmates with SHU confinement sanctions. Virtually every one of them is already in a special program, being offered at least two hours of out-of-cell structured treatment and programming per day.

Keep in mind that OMH and DOCS have already jointly implemented most of the requirements of the April 2007 court-approved Private Settlement Agreement (PSA) with Disability Advocates Inc., and will continue to operate in accordance with the provisions of that settlement even after the SHU Exclusion Law takes full effect. That translates into DOCS and OMH operating more than 2,523 beds including: 743 Intermediate Care beds, 214 Residential Crisis Treatment beds, 38 Intensive Intermediate Care beds, 217 Transitional Treatment beds, and a host of other treatment modalities already in place that offer the level of mental health treatment each inmate requires based on his or her need and ability to accept treatment.

More importantly, under the PSA, every inmate with SMI who is in SHU with a sanction of more than 30 days will receive a heightened level of care. This means that the inmate will be offered at least two hours per day of structured out-of-cell therapeutic programming and/or mental health treatment, in addition to the one hour of exercise. Hence, contrary to what has been portrayed, such inmates will be offered the care and treatment they need and will not be left alone in isolation to potentially deteriorate, even if the effective date of the SHU Law is postponed.

Another key aspect of the PSA is the requirement to not only deliver all the necessary care and treatment required, but also to provide it in the least restrictive setting possible, when clinically appropriate and when consistent with safety and security. The results to date have been very encouraging and were detailed in a recent white paper called Prison-Based Mental Health Services in New York State, copies of which have been made part of my written submission.

The training that both DOCS and OMH have jointly provided to the disciplinary hearing officers and the superintendents; the initial screening by OMH that is being performed on all incoming inmates; and the special programs and initiatives that have become operational are all having the desired effect of dramatically reducing the number of inmates with SMI in SHU. Each of these programs and initiatives is more fully described in the white paper.

In addition, a provision of the SHU Exclusion Law now in effect has the Commission on Quality of Care and Advocacy For Persons With Disabilities (CQCAPD) already monitoring both our agencies’ efforts to date and will likewise continue for years to come. That Commission’s independent evaluation and monitoring means that the proper treatment of the mentally ill inmate-patient will continue to be maintained regardless of other statutory requirements that may develop.

I also ask that you reconsider the SHU Exclusion Law’s failure to recognize the jointly operated use of our Special Treatment Program (STP), which already provides 108 treatment slots at several maximum security facilities and will offer 25 more at the medium security Mid-State Correctional Facility for individuals who, for various reasons, would not be able to be treated in a residential mental health unit. I am talking about individuals who refuse treatment, who cannot handle four hours of out-of-cell therapy, who do not want to be in close proximity to other inmates, are escape risks or who have demonstrated by past behavior to be so violent as to place staff and other inmates in serious jeopardy if allowed out of their cells beyond the manner in which we currently secure them. At our STP sites, we will continue to offer two hours of out-of-cell therapy to those inmates willing and able to participate. In addition, we need to consider the possibility that an inmate-patient already in a residential mental health unit may refuse treatment, or behave in such a disruptive manner that it negatively impacts on the treatment of other inmates. In those cases, it may be appropriate and necessary to return that person to a more secure setting, such as an STP.

Conclusion

In view of everything the State is currently undertaking, including those scheduled initiatives yet to be made operational, as well as the positive results thus far achieved, the Governor’s proposal to delay the effective date of the SHU Exclusion Law is a prudent measure which will afford a meaningful opportunity to assess the viability of a new program before the State commits significant additional resources to replicate it at other locations, and also to assess the continued viability of a proven program, the STP.