TEXT OF PROPOSED RULE-Parts 200 and 201 7NYCRR

The Department of Corrections and Community Supervision repeals Part 200 of Title 7 NYCRR and replaces it with a new Part 200 and also adds a new Part 201 to 7NYCRR.

PART 200

ENTRANCE TO A CORRECTIONAL FACILITY

Section 200.1 Identification.

(a) Each person seeking entrance to a correctional facility will be required to furnish proof of identity. Failure to produce adequate identification shall result in the denial of entry. Prior to visiting, visitors and other persons not employed at the correctional facility shall sign appropriate visiting forms as required by the facility. These records will be maintained by the facility.
(b) Upon entering any gate area, identification of persons, other than facility employees, shall be properly determined and recorded.
(1) Each person entering a correctional facility will be required to furnish valid, unexpired identification. Failure to produce adequate identification shall result in denial of entry.
(2) A person visiting an inmate under the visitation program (see Part 201), family reunion program (see Part 220), special events program (see departmental directive #4022), or for inmate legal visits (see departmental directive #4404) {these directives are available on the department website} should use the same form of identification at every visit, regardless of the location of the visit, and must sign appropriate visiting forms as required by the facility or the visit shall be denied. Acceptable forms of identification for such visits are as follows:
(i) Picture I.D. (e.g., driver’s license, non-driver identification, other government issued picture identification, Armed Services I.D., or employment identification with the visitor’s picture on it);
(ii) Birth or baptismal certificates shall not be considered adequate identification for an adult visitor; however, they may be used as identification for a minor child. In the case of a minor with no other creditable identification documentation, an adult approved to visit may vouch for the identification of a minor;
(iii) A visiting spouse must possess documentation of a valid marriage license or a declaratory judgment stating the validity of an out-of-state common-law marriage for spousal participation in the family reunion program (see Part 200 of this Title and departmental directive #4500 "Family Reunion Program").
(3) Non-facility employees or non-departmental personnel requiring entrance for an approved purpose (e.g., meeting, tour, official business, etc.) must obtain authorization from the superintendent or designee. Each individual shall record his or her name, the purpose of entry, and the times of entry and exit in the front gate log book. Identification required of such persons is as follows:
(i) A person entering for an approved purpose may use professional identification consistent with the purpose of entry into the correctional facility. Examples of professional identification include a New York State Department of Corrections and Community Supervision picture identification; an employee picture identification issued by a federal, state, county or local government; a court issued employee picture identification or a Unified Court System attorney secure pass identification card.
(ii) A person not having professional identification shall be required to furnish a valid, unexpired picture I.D. as provided in paragraph (2)(i) of this subdivision.
(4) Additional identification requirements for participation in family reunion program visits are set forth in Part 220, "Family Reunion Program."
(c) Each visitor shall be required to leave via the same gate by which he or she was admitted and the time out will be recorded. A visitor should not be permitted to leave a facility by any gate other than the one through which he or she entered without the authorization of the watch commander or higher ranking facility official.
(d) If the gate officer has any question regarding the validity of any aspect of the offered identification or the identity of the visitor, the officer shall notify his or her supervisor. The supervisor may approve entry into the correctional facility, require the visitor to provide additional supportive identification, or deny entry into the correctional facility.
(e) Except at minimum security facilities and correctional camps, each visitor (any person not employed at that facility) over 5 years of age shall be hand stamped to aid in identifying visitors upon leaving the facility.
(f) A visitor shall be required to lift any facial covering (religious or otherwise) for identification purposes.
(1) If the visitor objects for religious reasons, staff shall offer the visitor a private room or screened area to remove the facial covering in the presence of a security staff member of the same sex, if one is on duty. If no security staff member of the same sex is on duty a non-uniformed staff member of the same sex shall be used. If, however, no staff member of the same sex is on duty, and the visitor still refuses to show his or her face in the usual visitor processing area, the visit will be denied.
(2) In order to leave the facility after a visitor has been processed in, the visitor shall be required to show his or her face. If the visitor objects for religious reasons, and a staff member of the same sex is on duty, staff shall use a private area as set forth above. If the visitor refuses to show his or her face, the visitor shall be detained until identity is ascertained.
NOTE: Staff shall not require a visitor to remove religious headwear, during the identification process.

Section 200.2 Search.

(a) All persons entering a correctional facility are subject to search as a condition of entering a facility. All visitors, except for visitors to a correctional camp, shall pass through a walk through metal detector and/or be scanned with a hand scanner. Any visitor who exercises his or her option to refuse to comply with the required search procedures shall not be permitted to enter a correctional facility. Facility employees may be subject to search if, and when, required by the superintendent or his or her designee.
NOTE: The superintendent may make exceptions to the search requirements for department officials or other dignitaries.
(b) Notices will be posted at public entrances to a facility, in English and Spanish, providing that all visitors are subject to search as a condition of visitation.
(c) A detailed definition of contraband (see section 200.3 of this Part) shall be posted in the visitor processing area and made available to a visitor upon request.
(d) Metal Detectors.
(1) Calibration and testing. All hand scanners and metal detectors shall be calibrated to meet the criteria established and approved by the deputy commissioner for correctional facilities.
(2) Metal Detector Searches.
(i) Each visitor shall remove all metal items from clothing prior to monitoring. Jewelry (e.g., watches, chains, medals, etc.) which is normally concealed and which register an alarm will be removed. Other jewelry (e.g., rings, pins, earring, etc.) which is normally not concealed and which can be located by hand scanner, need not be removed.
(ii) Items that are removed from visitors passing through the detector will be placed in a container out of reach of the visitor where the items can be observed and checked by staff.
(iii) Staff shall thoroughly search handbags, briefcases, and other containers. Inspection of handbags, briefcases, and other containers in the possession of an attorney or duly approved legal representative prior to an approved legal visit shall be limited to cursory examination for contraband. Written materials shall be inspected, as unobtrusively as possible, to verify that the materials do not contain contraband.
(iv) Staff shall check and approve all items before returning them to the visitor and the items will be returned only after the visitor has successfully passed through the metal detector.
(v) If there is any difficulty clearing a person by use of the walk-through metal detector, staff shall use the hand scanner to locate the problem area.
NOTE: If items such as belt buckles, jewelry, metal buttons, etc. are probable causes of registering an alarm, the use of the hand scanner will usually identify the object in question. The hand scanner should be held approximately ½ inch away from the area being searched. Care should be taken by staff to ensure that the hand scanner does not make physical contact with the individual being processed. When the hand scanner indicates the presence of metal, which is concealed under clothing, the visitor shall reveal (if appropriate) the object in question thereby establishing that the item revealed caused the alarm or, if necessary, the visitor shall remove the item for inspection.
(vi) If, prior to an approved legal visit, an attorney or duly approved legal representative is unable to clear the metal detection process, staff shall contact the superintendent or designee for further direction.
(3) If the visitor is unable to reveal or remove the detected object due to its personal nature, processing shall continue as follows:
The visitor shall be provided with a document explaining that they have the right to leave the facility or they can pursue one of two search options:
(i) A limited visual search to be conducted in a private area where an officer or staff member of the same sex will visually inspect the area in question by having the visitor lift any articles of clothing or under garments to satisfy staff that no contraband is secreted on the visitor’s person in the area in question. Should a staff member of the same sex not be available, a personal item search as set forth in subparagraph (ii) below shall be utilized. Note: When the limited visual search procedure is utilized, staff must obtain a signed "Notice of Consent to Search" form from the visitor and an unusual incident report must be filed in accordance with departmental Directive #4004, "Unusual Incident Report."
(ii) A personal item search may be conducted as an alternative to a limited visual search.
(a) The visitor shall be provided a private area or other room that provides personal privacy to remove items of a personal nature including braces, underwire bras, etc.; a paper bag in which to place any personal items they have removed; and an opportunity to use a large mess hall style white shirt as an outer covering during reprocessing procedures. (The facility shall have at least two x large and two xx large mess hall style shirts available. The facility must specifically advise any female visitor who may be required to remove an underwire bra of the availability of these shirts to wear as an outer garment during reprocessing procedures.)
Note: A visitor shall not be routinely required to remove religious headwear during search procedures. However, if staff determines following the use of the hand scanner that removal of the headwear or any other item of religious apparel is necessary, the item shall be removed in a private area in the presence of a security staff member of the same sex, if one is on duty. If no security staff member of the same sex is on duty, a non-uniformed staff member of the same sex shall be used. The staff member of the same sex shall conduct a hand scanner search and visual inspection of both the visitor and the removed item in a private area. If there is no staff member of the same sex on duty, and the visitor still refuses or cannot remove the item due to its personal nature in the visitor processing area, the visit will be denied.
(b) Once the detected item is removed and placed in the paper bag, staff shall reprocess the visitor via a hand scanner or walk-through metal detector and both the bag and it’s contents shall be discreetly inspected for contraband. All visitors must be dressed in appropriate attire, as outlined in section 201.3 of this Title, when not within the private area. Once the visitor has cleared the detector, the personal items shall be returned and a private area made available for redressing. The outer covering shirt shall be returned to a security staff member.
(c) Whenever possible, the private area used to disrobe shall not be the same area that is used for redressing. Any private area shall be out of sight of the inmate population. If separate areas are not available, staff must search the area before the visitor enters to redress.
(4) Contact between processed and unprocessed visitors shall be prevented.
(5) If staff is unable to locate the source of the problem with the hand scanner or believes that there is probable cause for further processing, he/she shall follow the strip search procedures as set forth in subdivision (f) of this section, even if the visitor offers to voluntarily remove items of clothing other than coat, hat, or shoes.
(e) Substance Detection/Ion Scan Testing. Visitors entering any department facility, by whatever gate, may be subject to ion scanning or other non-intrusive test for detection of illicit substances.
(1) A substance detection/ion scanner test means a search in which surface samples are taken using a handheld collection unit for testing in a drug and/or explosives detection device. The collection unit may come into contact with an individual’s hands, areas of clothing, personal items, purses/handbags, packages, correspondence or any other articles that may retain microscopic traces of illicit substances. A positive test result may occur in any case where a person has come into contact with an illicit substance, whether the person has used that substance or not. All substance abuse detection/ion scan staff shall use the thresholds established and approved by the deputy commissioner for correctional facilities or his or her designee to determine whether or not a test is positive.
(2) If a visitor tests positive, a second test will be conducted to confirm or negate the first test result. Upon a confirmed positive test result, or test refusal, the visitor will be denied entrance into any correctional facility for two (2) days. If that visitor is a minor child, that child’s parent, guardian or approved escort will also be denied entrance into the correctional facility. Otherwise, a confirmed positive test result on a specific visitor will not serve as a basis to deny entrance to any other visitor. A confirmed positive test means that a second sample from the same area on the person or the person’s belongings tests positive for the same substance.
(3) No disciplinary action shall be taken against an inmate solely because an individual that is attempting to visit the inmate tests positive or refuses to test.
(f) Strip Searches.
(1) If a visitor to a correctional facility has complied with all the aforementioned processes and the officer in charge reasonably believes further processing is required to prevent the introduction of contraband into the facility, the following action must be taken:
(i) The visitor shall be asked to remain. The officer in charge shall contact his or her immediate supervisor.
(ii) The supervisor will evaluate the situation to determine if further processing is warranted.
(2) If the supervisor determines that further processing is warranted, the superintendent or the officer of the day during non-business hours shall be notified and may authorize a consensual strip search after reviewing the matter.
(i) In order to justify a strip search of a particular visitor, the superintendent or officer of the day during non-business hours, must point to specific objective facts and rational inferences that he or she is entitled to draw from those facts in light of his or her experience. The superintendent must have reasonable cause to believe that contraband is concealed upon the person of the visitor, base upon specific and articulable facts and inferences reasonably drawn from those facts. Generalized suspicion of smuggling activity is insufficient.
(ii) Strip searches may not be authorized based on uncorroborated information or "tips" merely stating that visitors would attempt to introduce contraband into a facility where the informant’s reliability cannot be assessed and observations of visitors by staff upon arrival at the facility do not contribute to reasonable suspicion that contraband is being concealed. Reasonable suspicion exists only if the uncorroborated information can be linked to other objective facts.
(3) The visitor must be informed that he/she has the option to submit to the requested search procedure or to refuse. If a visitor refuses to submit to a strip search the visit will be denied.
(4) Guilt is not to be assumed from a visitor’s refusal to submit to a strip search.
(5) Future visits may not be denied on the basis of past refusal to a strip search.
(6) A visitor's past refusal to submit to a strip search may not be used as a basis or factor in establishing reasonable suspicion for future strip searches.
(7) If the visitor consents to a strip search, the supervisor will obtain the visitor’s written consent on Form No. 2061, "Notice of Consent to Search". In the case of a minor child, the consent must be given by a parent or guardian. Absent consent from an accompanying parent or guardian, a minor child will not be subjected to a strip search and will not be permitted entry into the facility. For purposes of this section, the term "minor child" shall mean any person who is under the age of 18, but the term shall not include any person who is emancipated (i.e., 16 years of age or older who is married (with proof of age and marriage)) and who is related to the inmate to be visited.
(8)Strip Search of a Minor Child
(i) In an unusual circumstance when the visitor to be strip searched is a minor child, the parent or guardian shall be present and, at the discretion of staff, may participate in the strip search.
(ii) If at any time during the procedure the minor child or accompanying parent or guardian objects in any manner to the strip search, the procedure shall be terminated immediately and the visit denied. When a minor child is unable to clear the search procedure, the escorting parent or guardian shall also be denied entry into the facility.
(9) Strip searches shall be conducted in locations heated to a level of human comfort for disrobed persons.
(10) Strip searches shall be conducted by a correction officer of the same sex as the visitor being searched.
(11) In performing strip searches, staff shall conduct themselves professionally. Staff shall be alert to the sensitive nature of the strip search and conduct such searches in a manner least degrading to all involved while fulfilling the objective of the search.
(12) A strip search must be reported as an Unusual Incident in accordance with departmental Directive #4004, "Unusual Incident Report." A subsidiary report of the circumstances surrounding the incident should accompany the Unusual Incident Report. Particular care should be given to setting forth in detail the factor or factors which led to a determination that the visitor required processing under this subdivision.
(g) As a prerequisite to entry to a correctional facility, the superintendent or his or her designee shall have the authority to require any visitor to surrender any article or thing to the gate officer if the superintendent or his or her designee reasonably believes to be potentially dangerous to the safety and security of the facility or constitutes contraband as defined in section 200.3 of this Part.

Section 200.3 Unauthorized items/contraband.

(a) Contraband is defined as: (1) Any article or thing the possession of which would constitute an offense under any law applicable to the public;
(2) Any article or thing which is readily capable of being used to cause death or serious physical injury, including but not limited to a hand gun, shoulder gun, cartridge, knife, explosive, or dangerous drug (including marijuana);
(3) Any article or thing that is introduced into a correctional facility under circumstances showing an intent to transfer same to an inmate without the permission of the superintendent or his designee; or
(4) Any article or thing that is not specifically authorized to be possessed by an inmate in a State correctional facility pursuant to the rules of the department or the local rules of the facility. Money and identifying documents are among the items inmates are not permitted to possess. (See section 270.2 (B)(14) of this Title, "standards of inmate behavior, rule series 113 contraband.")
Note: The visitor’s intent shall be controlling. At times, innocent oversights will occur (e.g., medication). Officers should use their discretion in judging a visitor’s intent, when undeclared contraband is found, as to whether the visitor intentionally attempted to introduce contraband into the facility. Criteria to be considered include the visitor’s demeanor, whether it appears that the contraband was for the visitor’s personal use and was inadvertently left his/her pocket or handbag, and whether an effort was made to conceal the contraband where it would not readily be found and the visitor’s past history.
(b) Upon the discovery of contraband as defined in subdivision (a) paragraphs (1) and (2) above, the contraband shall be confiscated and law enforcement officials shall be contacted.
(c) Prohibited Items. Certain items are prohibited inside a State correctional facility.
(1) Cellular phones, wireless phones, pagers, laptop computers, personal digital assistants, any device with global positioning (G.P.S.) capabilities, any device with audio recording capabilities, radios, cameras or other similar electronic devices are prohibited. Other items including pocketknives, alcohol and other items posted at the facility entrance or as directed by staff are also prohibited.
(2) A visitor shall declare any prohibited item that is not specifically authorized to be possessed in a state correctional facility, but is otherwise legally possessed (e.g., medications). The visitor shall store the items in a locker, if available, until the visitor leaves the facility. If no locker is available, the visitor shall remove the item from the facility and secure it in an appropriate location (e.g., the visitor’s vehicle).

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Part 201 of title 7 NYCRR is added to read as follows:

PART 201

VISITATION

(Statutory Authority, Correction Law §§ 112, 146)

Section 201.1 Purpose.

Appropriate participation in the inmate visitor program provides inmates under custody of the New York State Department of Corrections and Community Supervision an opportunity to maintain relationships with friends and relatives and to promote better community adjustment upon release. Contact with persons from the outside provides all offenders emotional support in adjusting to the prison environment. This regulation sets forth the requirements of the inmate visitor program, provides for a uniform manner for the operation of the inmate visitor program, and provides guidance for department staff, inmates, and visitors to correctional facilities under the jurisdiction of the Department of Correction and Community Supervision.

Section 201.2 Procedures.

(a) Visitors.

(1) First-time Visitors. First-time visitors will be allowed to visit if proper identification is presented and if the inmate to be visited agrees to the visit.
(2) Visitor Record. A record of visitors for each inmate and a record of each visit will be maintained. The department visitor record will be updated as visitors register and are processed to visit inmates. This record will be updated by security staff in the area where visitors are processed.
(3) Cross-visiting. Cross-visiting is the participation of two inmates in a visit with one or more visitors. Cross-visiting is permitted with the approval of the superintendent and, in the case of immediate family members, is to be encouraged.
(i) Inmates wishing to cross-visit must submit requests to their respective counselors at least one month prior to the proposed visit.
(ii) Only persons who are on both inmates’ visiting lists may participate in cross-visits.
(iii) Cross-visiting may be limited when necessary in order to accommodate all visitors.
(iv) Small children may play with each other with the permission of their families provided that they are not disruptive.
(v) When a cross-visit is taking place, the two inmates may participate in a common photograph.
(4)Visitors under 18 years of age.
(i) All minors must be escorted by an adult approved to visit or an adult in an official capacity with proper identification and the approval of the superintendent, or his or her designee, except as otherwise provided in subparagraphs (ii) through (vi) of this paragraph. Such adult will be responsible for the behavior and conduct of the minor while on facility property and for identification of the minor.
(ii) Unmarried minors under 18 years of age, who are not accompanied by their parent or guardian, must have prior written permission from their parent or guardian to visit an inmate. The written permission may be mailed to the facility in advance or presented by the accompanying adult at the time of the visit. The written permission must be signed before a witness and contain a telephone number of both the parent or guardian and the witness to permit staff to verify the permission at the time of the visit.
(iii) Children of inmates will be allowed to visit without prior written permission as long as no court order prohibiting such visiting is on file with the facility. (iv) Allowance will be made for inmates’ children 16 years of age and older to be admitted without escort.
(v) Married persons under 18 years of age who are related to an inmate do not need the permission of a parent, guardian, or an adult escort in order to visit an inmate; however, proof of age and marriage will be required.
(vi) Special arrangements approved by the superintendent of the facility may be made for groups of children to be brought to the facility by an adult approved to visit (e.g., Children's Center Program at Bedford Hills).
(5) Persons under probation or parole supervision will be allowed to visit an inmate only with the prior permission of the superintendent and the written permission of the person’s probation or parole officer.
(6) An inmate released from any facility through the department’s temporary release program will be allowed to visit another correctional facility only with the prior permission of both the superintendent of the facility from which the inmate is temporarily released and the superintendent of the facility which the inmate wishes to visit.
(7) Pending or past criminal proceedings, ex-inmate status, or a person’s status as a former employee, contractor or volunteer, shall not solely disqualify such person from visiting an inmate in a correctional facility, except as provided herein.
(i) The superintendent of a facility may deny visiting privileges to such person by indicating in writing with specific reasons if he or she determines that the visitor's presence poses a threat to the security and good order of the facility. Criteria to be considered shall include: the purpose of the proposed visit; the institutional adjustment of an ex-inmate; the nature of a pending criminal proceeding against the visitor or inmate; the time frame between release and the proposed visit; the circumstances of separation from service of any prior employee, contractor or volunteer; and any other articulable factors the superintendent identifies, particularized to the visitor, the inmate and/or a facility or staff member, that establishes or tends to establish that such visitor may pose a threat.
(ii) Pending criminal charges related to conduct at a correctional facility or involving an inmate shall disqualify a person from visiting any department facility until the charges are resolved (e.g., promoting prison contraband).
(8) If an inmate is in a facility hospital or outside hospital, the inmate may be visited for limited periods of time by persons on his visitor list, an attorney, or his duly authorized representative, or visiting clergy. Such visits shall be subject to the approval of the superintendent, the facility’s health services director or the inmate’s doctor, and the visiting rules of the hospital.
(b) Conditions.
(1) No inmate is to be visited against his will by any person including attorneys or their duly authorized representatives or representatives of the news media.
(2) Visiting times.
(i) Unless a different schedule is approved by the commissioner, at maximum security facilities visiting is allowed every day of the year and at hours intended to encourage maximum visitation. At medium and minimum security facilities, visiting is allowed on weekends and holidays only. At work release facilities, only inmates held in restriction status shall be allowed visitors. At Upstate and Southport correctional facilities, visiting is allowed on weekends and holidays only and visits for inmates confined to a special housing unit (SHU) are limited to one non-legal visit per week. Visiting in special program units will be permitted on a schedule approved by the commissioner, or his or her designee.
(ii) Except in cases of emergency, and except for instances of denial, termination, term of suspension or indefinite suspension of either a visitor’s or inmate’s visiting privileges under the provisions of Section 201.4 of this Part including any disciplinary disposition imposed under Chapter V of this Title, the number, length, and frequency of visits by each visitor will be limited only as necessary to accommodate all visitors who arrive during scheduled visiting times. However, a superintendent may deny, limit, suspend for a term, or indefinitely suspend visitation privileges of any inmate or visitor under the provisions of Section 201.4 of this Part if the superintendent has reasonable cause to believe that such action is necessary to maintain the safety, security, and good order of the facility.
(3) The designated area or areas for visiting shall be specified and arranged to provide as much space as practical, along with adequate heat, light, and ventilation, convenient seating arrangements for both visitors and inmates, lavatory facilities, and any other appropriate accommodations. In facilities which have more than one visiting area, visiting room assignments may be made based upon the inmate's program assignment, institutional adjustment, or security risk level.
(4) The superintendent will designate an area for confidential meetings which will insure the privacy of conversations during professional visits of attorneys or their duly authorized representatives or visiting clergy.
(5) The visiting room and the visiting room lavatories will be searched before and after visiting to make certain that nothing has been concealed therein which might be removed by visitors or inmates.
(6) Inspection of an inmate’s person, clothing, and possessions will be made in accordance with departmental directives concerning control of and search for contraband.
(7) Superintendents may modify department visiting rules to adjust to local conditions; however, no modification may be imposed without the prior approval of the commissioner.

Section 201.3 Guidelines.

(a) Inmates and their authorized visitors shall abide by the visiting rules and regulations, posted facility rules, and the instructions and guidelines given by facility staff. The department shall maintain on its website the full text of Parts 200 and 201.
(b) Violation of visiting rules and regulations, posted facility rules or instructions by staff by either an inmate or visitor may result in the denial or termination of a visit and the term of suspension or indefinite suspension of future visits under the provisions of Section 201.4 of this Part.
(c) Inmates and visitors shall not be permitted to leave the visiting area together. The inmate must be accounted for by the visiting room officer prior to permitting the visitor to leave the facility. Visitors may be detained until the inmate is secured.
(d) Exchange or Review of Items. During visits, inmates and visitors are not authorized to exchange or share any items without prior approval of the area sergeant.
(1) In general, the following items may be reviewed and exchanged: only personal legal papers, the Bible and Koran and similar religious writing, and personal photographs (excluding Polaroid photographs) after the materials have been examined for contraband by facility security personnel.
(2) If a visitor wishes to leave any materials with the inmate that the visitor brought into the visiting area, or to remove materials brought into the visiting area by the inmate, the exchange must take place through the package room.
(e) Prior to a visit, a visitor may leave a package for an inmate, containing authorized items only, which will be inspected prior to delivery to the inmate. An attempt to introduce contraband through a package may result in the denial or termination of a visit and the term of suspension or indefinite suspension of future visits.
(f) Only foodstuffs or beverages purchased by the visitor from vending machined located in the visiting area may be consumed in the visiting room. Visitors to correctional camps shall normally be permitted to share foods brought into the facility with the inmates they are visiting, at the discretion of the superintendent. An exception will be made for visitors with small children needing to utilize baby bottles. Plastic baby bottles will be allowed into the visiting room after the contents have been examined. Jars of baby food should be left in the designated area where the visitor may go to feed the child.
(g) Inmates and visitors will not be allowed to use the same lavatories.
(h) Visitors appearing in unacceptable attire will not be admitted to a correctional facility. Due to the large number of families and young children participating in the inmate visitor program, the following are unacceptable: see-through clothing, bare midriffs or backs, plunging necklines, short shorts or athletic shorts, mini-skirts, bare feet, and bathing suits. Shorts or skirts shorter than mid-thigh length are unacceptable. Visitors are cautioned that clothing containing metal (e.g. decorative buckles, buttons or studs) or wire, including, but not limited to underwire bras, may cause the metal detector to alert and require further processing pursuant to Part 200.2 of this Chapter.
(i) Physical contact during contact visits.
(1) In general, kissing, embracing, and touching are allowed as long as they would be acceptable in a public place and do not offend other inmates and visitors or aid in the introduction of contraband or escape attempts.
(2) At a minimum, a visitor and inmate may embrace and kiss at the beginning and at the end of any contact visit. Brief kisses and embraces should also be permitted during the course of the contact visit. However, prolonged kissing and what is commonly considered "necking" or "petting" is not permitted.
(3) A visitor and an inmate may hold hands, as long as the hands are in plain view of staff.
(4) An inmate and visitor sitting next to one another may also rest their hands upon each others’ shoulders or around each others’ waists. Resting one’s head on another’s shoulder is also permitted when the inmate and visitor are sitting next to one another.
(5) No visitor or inmate may engage in unacceptable physical conduct, e.g., intercourse, sodomy, touching sexual or other intimate parts of another person, or masturbation.
(j) A visitor arriving with a small child will be allowed to take a diaper bag, three diapers and plastic baby bottles into the visiting room, provided all articles are thoroughly searched beforehand. If possible, a suitable area within the perimeter of the visiting room should be provided for the changing of diapers.

Section 201.4 Termination, term of suspension and indefinite suspension.

(a) General. Pursuant to the procedures set forth in this section, a superintendent may deny, limit, suspend for a term or indefinitely suspend the visitation privileges of any visitor if the superintendent has reasonable cause to believe that such action is necessary to maintain the safety, security, and good order of the facility. A loss of visiting privileges may be imposed for an inmate pursuant to the procedures for implementing the standards of inmate behavior under Chapter V of this Title and as set forth in subdivision (d), below.
(1) A visit may be terminated at the discretion of the superintendent or his or her designee if objectionable behavior is displayed during such visit.
(i) Objectionable behavior may consist of loud, abusive, or boisterous actions, disruptive behavior, or sexual activities which constitute unacceptable physical contact. Facility staff supervising visiting areas should give inmates and visitors instructions on proper behavior and admonitions if they observe improper behavior prior to giving out an official warning.
(ii) Before termination of a visit, a verbal warning must be issued by the visiting room officer to the visitor and the inmate that the objectionable behavior is prohibited and that failure to cease such behavior will result in termination of the visit. Such warning will be noted on the visitor’s record.
(2) A visit will be terminated without a warning if one or more of the following misconduct takes place:
(i) A visitor or inmate becomes apparently under the influence of alcohol or drugs during a visit;
(ii) Unapproved parties continue to cross visit after a warning is given by facility staff;
(iii) A visitor or inmate refuses to follow instructions given by facility staff or posted facility rules;
(iv) Visitor or inmate attempts to introduce or pass contraband to the other, as defined in section 200.3 of this Chapter;
(v) Assault on facility staff, inmate, or other visitors.
(vi) A visitor and/or inmate engages in unacceptable physical conduct.
(3) Termination.
(i) The decision to terminate a visit is within the discretion of the superintendent, or his or her designee, who must be the watch commander or higher ranking official. If a visit is terminated on the weekend, the watch commander shall promptly notify the officer of the day.
(ii) If a visit is terminated, the area supervisor will advise the visitor and the inmate that his or her visiting privileges are suspended for a period not to exceed one week or until such time as the visitor receives written notification from the superintendent which reinstates, limits, suspends for a term, or indefinitely suspends the visitor’s visiting privileges.
(iii) The watch commander will cause an entry to be made on the computerized visitor record imposing an interim suspension for one week and make an appropriate entry into the watch commander’s log book.
(iv) Within one week, the superintendent shall issue a written notification reinstating visiting privileges, limiting visiting privileges, suspending visiting privileges for a term, or indefinitely suspending visiting privileges in accordance with subdivision (b) or (c) of this section.
(4) Limitation to non-contact visiting. Contact visiting privileges of either an inmate or a visitor may be suspended (i.e., an inmate or a visitor may be limited to non-contact visiting) by the superintendent for a violation of visiting rules and regulations, or for conduct which represents a threat to the safety, security, and good order of the facility. An inmate may also be limited to non-contact visiting as a penalty pursuant to a disciplinary disposition resulting from a superintendent's proceeding as set forth in section 254.7 of Part 254 of Chapter V of this Title.
(i) Contact visiting privileges may be suspended or indefinitely suspended as an alternative to the term of suspension or indefinite suspension of all visiting privileges for either a visitor or an inmate depending upon who committed the misconduct. The determination to limit a visitor or an inmate to non-contact visiting in lieu of a term of suspension or indefinite suspension of all visiting privileges is within the discretion of the superintendent or his or her designee.
(ii) A visitor or inmate will be limited to non-contact visiting in the area of the facility designated for that purpose during the suspension of contact visitation privileges.
(b) Visitor suspension for a term of less than six months. A superintendent may suspend a visitor’s visitation privileges for any term less than six months for a violation of visiting rules and regulations, which represents a threat to the safety, security, and good order of the facility as set forth in subdivision (e) of this section pursuant to the following procedures:
(1) Upon imposing a term of suspension, the superintendent shall notify the visitor in writing of his or her action.
(i) The notice shall contain:
(a) the reason for the suspension;
(b) the duration of the suspension; and
(c) copies of all charges and reports of misconduct relating to the charges.
(ii) The visitor shall also be notified of his or her right to appeal the decision of the superintendent and the manner in which to do so, including notification that such an appeal must be taken within 60days of receipt of the notice.
(iii) A copy of such notice and related documents must be sent to the inmate.
(2) An appeal may be taken by the visitor.
(i) Such an appeal shall be addressed to the commissioner and shall be in writing. The visitor may submit any written material he/she wishes to be considered.
(ii) The commissioner, or his or her designee, shall render a written decision within 45 days of receipt of the appeal as follows:
(a) the decision shall affirm, reverse or modify the determination of the local facility;
(b) an affirmance shall be supported by a preponderance of the evidence; and
(c) the decision shall contain a statement of the evidence relied upon and a statement of the reasons therefore.
(c) Visitor suspension for a term of six months or more, up to and including an indefinite suspension pending reinstatement. A superintendent may suspend a visitor’s visitation privileges for a term of six months or more, or indefinitely suspend a visitor’s visiting privileges (subject to reinstatement under section 201.6 of this Part), for misconduct that represents a serious threat to the safety, security, and good order of the facility as specified in subdivision (e) of this section pursuant to the following procedures.
(1) Upon imposition of such a term of suspension or indefinite suspension, the superintendent shall notify the visitor in writing of his action.
(i) The notice shall contain:
(a) the reason for the term of suspension or indefinite suspension;
(b) for a term of suspension of visiting privileges, the duration of such term ;
(c) copies of all charges and reports of misconduct relating to the charges; and
(d) the reason for imposing the maximum penalty, if imposed.
(ii) The visitor shall also be notified of his or her right to a hearing to appeal the decision of the superintendent within 60 days of such notice.
(iii) Only the visitor may request a hearing.
(iv) If a hearing is not requested, a review based upon written submissions may be had as outlined in section 201.4 (b) (2) of this Part.
(v) A copy of the notice and related documents shall be sent to the inmate.
(2) If a visitor requests a hearing, the commissioner shall appoint an impartial individual from outside the facility to conduct the proceeding and a hearing shall be conducted pursuant to section 201.5 of this Part.
(d) Inmate Suspension. A hearing officer may impose a loss of visiting privileges, including a limitation to non-contact visiting, on an inmate as a penalty pursuant to a disciplinary disposition resulting from a superintendent’s proceeding based on visit related misconduct as set forth in section 254.7 of Part 254 of Chapter V of this Title. An inmate may appeal such a loss of visiting privileges in accordance with the provisions of Chapter V of this Title.
Note: The visiting privileges of an inmate in SHU may be subject to special precautions imposed by the superintendent under section 302.2(i) (1) of Part 302 of Chapter VI of this Title.
(e) Visit related penalties.
(1) Effect of visiting penalty.
(i) A penalty imposed with respect to the visiting privileges of any visitor applies at all Department facilities and to all inmates visited.
(ii) A loss of visiting privileges imposed on an inmate as a penalty pursuant to Chapter V of this Title applies at all Department facilities and prohibits the inmate from visits with all visitors unless otherwise specified pursuant to the hearing disposition.
(iii) A visitor or inmate serving any limitation, term of suspension or indefinite suspension of visiting privileges, including a limitation to non-contact visiting, is also prohibited from participating in the family reunion program or a special events program that is attended by members of the general public.
(2) Types of visiting penalties.
(i) Termination. A visit may be ended before the end of the visiting period by staff for objectionable behavior or misconduct as set forth in section 201.4(a) of this part.
(ii) Denial. A denial of visiting privileges may be for a specific visit (e.g., visitor fails to possess proper identification or clear a metal detector or an incident occurred inside the facility), for 2 days for a confirmed positive substance detection/ion scan test or refusal (see 200.2 (e)), or until a certain condition is satisfied (e.g., resolution of pending criminal charges).
(iii) Suspension. A suspension of visiting privileges must be set for a specific term. At the conclusion of the term of suspension, visiting privileges are automatically reinstated.
(iv) Indefinite suspension. An indefinite suspension of visiting privileges has no predetermined end date. An indefinite suspension is subject to review on an annual basis and restoration in accordance with section 201.6 of this Part, Reconsideration of Indefinite Suspension.
(3) The authorized visit related penalties are as follows:
NOTE: The following penalties are intended as maximum penalties for egregious conduct. When determining the appropriate penalty, the surrounding circumstances or the nature of the incident; the severity or egregiousness of the conduct; and/or past instances of misconduct should be considered.

Section 201.5 Visitor appeal hearings.

(a) Hearings.
(1) If a visitor requests a hearing, the commissioner shall appoint a hearing officer from outside the correctional facility to conduct the proceeding.
(2) The formal charge shall consist of the superintendent’s notice to the visitor.
(3) The visitor may be represented by counsel.
(4) The visitor may call witnesses on his or her behalf provided they are material, their testimony is not redundant, and so doing does not jeopardize facility safety, security, and the good order of the facility, or correctional goals.
(i) A visitor shall advise the hearing officer of any witnesses the visitor intends to offer at the hearing no later than five days prior to the hearing.
(ii) If permission to call a witness is denied, the hearing officer shall provide a written statement of the reasons for such denial, including the threat to the facility safety, security, the good order of the facility, or correctional goals or why the proffered testimony was immaterial or redundant.
(iii) Any witness shall be allowed to testify at the hearing in the presence of the visitor unless the hearing officer determines that so doing would jeopardize facility safety, security, the good order of the facility, or correctional goals.
(a) If permission to be present during the testimony of a witness is denied, the hearing officer shall provide a written statement setting forth the reasons for such denial, including the threat to facility safety, security, the good order of the facility, or correctional goals.
(b) Where a visitor is not permitted to have a witness present, such witness shall be interviewed out of the visitor’s presence and such interview recorded.
(c) The witness’s statement is to be made available to the visitor at the hearing unless the hearing officer determines that so doing would jeopardize facility safety, security, the good order of the facility, or correctional goals.
(d) If the witness’s statement is not to be made available, the hearing officer shall provide a written statement setting forth the reasons for such denial, including the threat to facility safety, security, the good order of the facility, or correctional goals.
(iv) A visitor may cross-examine adverse witnesses unless the hearing officer determines that so doing will jeopardize facility safety, security, the good order of the facility, or correctional goals. If permission to cross-examine is denied, the hearing officer shall provide a written statement stating the reasons for such denial, including the threat to facility safety, security, the good order of the facility, or correctional goals.
(v) The visitor shall be present at the hearing unless he or she refuses to attend. The inmate shall be present at the hearing if he or she is to be a witness, unless the hearing officer determines so doing will jeopardize facility safety, security, the good order of the facility, or correctional goals.
(a) If the inmate is denied permission to attend the hearing, the hearing officer shall provide a written statement setting forth the reasons for such denial, including the threat to facility safety, security, the good order of the facility, and correctional goals.
(b) If an inmate is denied permission to attend the hearing as a witness, he or she shall be interviewed. The interview shall be recorded and made available to the visitor at the hearing unless the hearing officer determines that so doing would jeopardize facility safety, security, the good order of the facility, or correctional goals. In such instance, the hearing officer shall provide a written statement setting forth the reasons for such denial, including the threat to facility safety, security, the good order of the facility, and correctional goals presented.
(5) The hearing shall be electronically recorded.
(6) The hearing officer shall issue a written decision within 60 days of the completion of the hearing. The decision of the superintendent shall be affirmed upon a finding supported by a preponderance of the evidence. The hearing officer shall set forth his or her decision in writing, stating the reasons therefore and the evidence relied upon. Such decision shall be effective 60 days after issuance unless appealed. The decision shall also notify the visitor and inmate of appeal procedures.
(7) The visitor may appeal the decision of the hearing officer to the commissioner. Such appeal must be taken within 60 days of the date the decision was issued and must be in writing.
(i) The commissioner shall issue a written decision within 60 days of the filing of an appeal.
(ii) Such decision must contain a statement of the reasons for the affirmance, modification, or reversal of the hearing officer.

Section 201.6 Reconsideration of Suspension in Excess of Two Years.

(a) In the event a visitor or inmate’s visiting privileges have been suspended for a term over two years or indefinitely suspended, such person may request a reconsideration at any time after it has been in effect for one (1) year, and on an annual basis thereafter, by writing to the superintendent of the facility housing the inmate to be visited.
(b) The superintendent shall evaluate such a request to determine if any factors exist that warrant a modification so as to permit visitation to resume at a specific time in the future. The criteria to be considered are:
(1) The inmate’s institutional record;
(2) Showing of special circumstances (e.g., age of visitor or inmate, serious illness, etc.);
(3) Length of inmate’s unserved sentence; and
(4) Past history of violations; and
(5) Other good cause factors.
(c) The superintendent shall advise the inmate and visitor of the results of his or her review by written decision, including the reasons therefore.
(d) Appeal of Denial of Request for Reconsideration.
(1) A visitor or inmate may appeal the denial of a request for reconsideration, in writing, to the Commissioner within 60 days if:
(i) Such person’s visiting privileges have been indefinitely suspended or suspended for a term over two years;
(ii) The indefinite suspension or term of suspension has remained in effect for three (3) years; and
(iii) Such person’s request for reconsideration during the third year under subparagraph (a) has been denied by the superintendent.
(2) If the indefinite suspension or term of suspension of visiting privileges remains in effect, such person may appeal a subsequent denial every three (3) years thereafter.
(3) Nothing in this subdivision shall be construed to preclude such person from making an annual request for reconsideration to the superintendent of the correctional facility then housing the inmate to be visited.
(4) No appeal of a denial of a request for reconsideration may be taken if the superintendent has modified the indefinite suspension or term of suspension to permit visitation, including non-contact visitation.

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Text of Proposed Rule :Disciplinary Sanctions

Amend Section 253.7 (a)(1)(ii) as follows:

(ii) loss of one or more specified privileges for a period of up to 30 days[.], however, [C]correspondence and visiting privileges may not be withheld; [however, visiting privilege may be withheld with a particular person where the inmate has been involved in improper conduct in connection with visitation with such person. Visiting-related sanctions shall be imposed only in accordance with the provisions of the penalty chart contained in section 200.5(f) of this Title;]

Amend Section 254.7 (a)(1)(ii) as follows:

Renumber existing subparagraphs (iii) through (ix) of paragraph (1) of subdivision (a) of Section 254.7 to (v) through (xi), respectively. Amend Section 254.7 (a)(1)(ii) and add two new subparagraphs (iii) and (iv) to 254.7 (a)(1) as follows:

(ii) loss of one or more specified privileges for a specified period[.], however correspondence may be withheld with a particular person only where the inmate has been involved in improper conduct in connection with correspondence with such person;[Correspondence and/or visiting privileges may be withheld with a particular person where the inmate has been involved in improper conduct in connection with correspondence and/or visitation with such person. Visiting-related sanctions shall be imposed only in accordance with the provisions of the penalty chart contained in section 200.5(f) of this Title;]
(iii) loss of visiting privileges for a specified period where the affirmed charges involve improper conduct as a result of the inmate’s presence or conduct in connection with a visiting, family reunion or special events program, or processing before or after participation in such program;
(a) A loss of visiting privileges may be imposed under subparagraph (iii) only where the affirmed charges involve the violation of any rule under rule series 100 assault and fighting; 101 sex offenses; 108 escape and abscondence; 113 contraband where such contraband consists of any weapon, narcotic, controlled substance or marijuana and/or paraphernalia, alcoholic beverage or intoxicant, electronic device, or money; 114 smuggling; or 115 searches and frisks, including any attempt or conspiracy to violate any such rule; or a disposition under rule 1.00 for a criminal conviction relating to such conduct.
(b) A loss of visiting privileges with a specified visitor or visitors may be imposed where the misconduct involved only the inmate and the specified visitor or visitors. Where the misconduct was not limited to the specified visitor or visitors a loss of visiting privileges with all visitors may be imposed.
Misconduct involving Unacceptable Physical Conduct during which other visitors were subjected to exposure is misconduct which is not limited to only the inmate and the specified visitor or visitors.
Misconduct involving an attempt to introduce money, alcohol, marijuana, narcotic and other dangerous drugs, any item which is readily capable of being used to cause death or serious injury, or any item which may be used to aid in escape is misconduct which is not limited to only the inmate and the specified visitor or visitors.
(c) A loss of visiting privileges may be imposed under subparagraph (iii) only for the length of time specified in accordance with the provisions of the penalty chart contained in section 201.4(e) of this Title. Where the disposition imposes a loss of visiting privileges with all visitors for two years or more, a copy of the disposition shall be forwarded to the superintendent for a discretionary review under section 254.9 of this Part. Where the disposition includes an indefinite suspension of visiting privileges and the inmate does not appeal the disposition pursuant to section 254.8 of this Part, the visiting sanction shall nevertheless be reviewed by the director of special housing and inmate disciplinary program within six months of the hearing date. An inmate subject to a disciplinary sanction imposing a suspension of visiting privileges for a term over two years or indefinite suspension of visiting privileges may request reconsideration of the suspension of visiting privileges for a term over two years in accordance with section 201.6 of this Title.
(d) The hearing officer may, within his or her discretion, limit an inmate to noncontact visiting in lieu of suspending all visiting privileges.
(iv) loss of visiting privileges for a specified period not to exceed 6 months for a first offense and 1 year for any repeat offense where the affirmed charges involve the violation of one of the following rules, regardless of the location of the rule violation: 113.24 (prohibiting the use of narcotics, controlled substances, or marijuana, e.g., positive urinalysis); 113.25 (prohibiting making, possessing, selling or exchanging any narcotic, narcotic paraphernalia, controlled substance or marijuana); or 180.14 (requiring an inmate to comply with instructions by staff regarding urinalysis testing);

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Text of Proposed Rule: Minimum Provisions

Section 1704.7 is amended to read as follows:

Section 1704.7 [Correspondence and] [v]Visiting, correspondence and phone calls.
(a) Visiting, correspondence and phone calls[, and correspondence] are seen as means of reinforcing family ties that will be beneficial to inmates upon their release. The visiting, family reunion, correspondence, privileged correspondence and phone call programs are described in Parts 201, 220, 720, 721 and 723 of this Title, respectively.
(b) An inmate may at any reasonable time address a written communication to the superintendent or the commissioner. When an inmate makes a request for permission to write such a communication, the responsible employee to whom the request is made shall supply the inmate with necessary writing materials and an envelope; allow the inmate to write his communication in privacy, and forward it promptly to the addressee.
(c) Inmates are to be afforded pastoral visiting opportunities upon request. It shall be the responsibility of the chaplain to determine whether his/her immediate attention is required.
(d) [An inmate confined to a cell or room for more than 30 days pursuant to Part 254 of this Title shall be permitted one non-legal visit per week. There is no limit on the number of legal visits. Visits will be conducted during established facility nonlegal and legal visiting hours.] An inmate confined to a cell or room for more than 30 days pursuant to Part 254 of this Title shall be limited to one non-legal visit per week. However, the inmate’s visitation privileges may be subject to further restriction under this Title in accordance with:
(1) an administrative action under Part 201 of this Title;
(2) a disciplinary disposition under Chapter V of this Title; or
(3) special precautions applicable to inmates in SHU under section 302.2(i)(1) of this Title

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Summary and Assessment of Comments

Summary and Assessment of Comments:

The Department received comments from two members of the Legislature, the New York Civil Liberties Union, the New York State Defenders Association, and joint comments from the Prisoners’ Rights Project of the Legal Aid Society of New York and Prisoners’ Legal Services of New York. No individual members of the public submitted comments on the proposed rules.

Assemblyman Aubry expressed a concern that the elimination of the continuum of penalties from the current regulations would likely result in the maximum penalty being meted out for first time infractions. Assemblyman Lavine noted that the range of penalties that may be imposed for a specific violation of the visiting rules is substantially increased and noted that this creates a risk of "increasing arbitrary decision-making." Assemblyman Lavine suggested adoption of a directive setting forth a graduated schedule of recommended sanctions while still preserving the flexibility sought by the Department. This is precisely what the Department intends to do by means of recommended sanction guidelines. Further, although we disagree with Assemblyman Aubry’s concern that the maximum penalty may be imposed when it should not be, the Department believes that there are egregious cases when the maximum penalty is appropriate for a first act of misconduct.

Assemblyman Levine expressed a concern about the elimination of the requirement that all visitors be provided with written notification of the visiting rules and regulations. The previous regulations, adopted in 1986, provided that "all visitors shall be provided with written notification of the visiting rules and regulations; however, it will be considered sufficient notice if such rules and regulations are conspicuously posted." The Department receives hundreds of thousands of visitors each year. In 2010, there were nearly 700,000 visit room visits by 488,000 visitors. There were 131,000 first-time registrants during 2010. It is cost-prohibitive for the Department to provide each visitor with a copy of the rules and regulations.

However, the Department is making these regulations effective October 1, 2012. During this time, the Department will conduct an educational campaign for staff, offenders and current visitors. Notices regarding coming changes will be posted in visiting rooms and informational brochures given out. The Department will be updating its Family Guide, which is posted on our website and summarizes the visiting rules. It is also the Department’s intention to maintain the full text of the rules and regulations on its Website. In order to address the Assemblyman’s concern, a non-substantive revision is being made to section 201.3(a) providing that "the department shall maintain on its website the full text of Parts 200 and 201."

Assemblyman Aubry and Lavine also referenced prior comments on pending revisions to Part 220, Family Reunion Program, regarding same-sex marriage or civil union performed in an outside jurisdiction. Recent enactment of the Marriage Equality Act addresses many of these concerns. In any event, appropriate revisions are being made to the previously proposed rules. In this regard, Assemblyman Lavine suggested adding references to Part 220 and Departmental Directive #4500 "Family Reunion Program" and we have done so at § 200.1(b)(2)(iii).

Assemblyman Aubry expressed concern over the change in the length of time for appeals to be processed. Specifically, the Assemblyman referenced the requirement that appeals of suspensions in excess of six months be answered within 60 days. The current time frames of 20 and 30 days to respond, based upon the length of the sanction imposed, cannot be met. The cases are often complex and require a great deal of review. The longer response time reflects a more realistic review period. It is noted that the proposed regulation requires a written decision within 45 days where the visitor suspension is for a term of less than six months.

Assemblyman Aubry also noted that the penalty chart makes no mention of non-contact visitation and that non-contact visitation would seem to be sufficient to address concerns of smuggling and assault, as well as other non-violent and non-drug related misconduct. The Department considered many ways of utilizing non-contact visiting restrictions where appropriate. The proposed rule provides, in essence, that the Superintendent or his or her designee has the discretion to use a non-contact visiting limitation at any time a term of suspension or indefinite suspension is authorized. A hearing officer has the same discretion when imposing a visiting sanction through a disciplinary disposition resulting from a Superintendent's proceeding.

Assemblyman Aubry also commented that written notice should be given to visitors when an advisement from a correction officer constitutes an official warning. He noted this is of concern where the warning is entered into the visitor's record and may be used against them in the future or may provide for an enhanced sanction at any point in the future for what would then be continued misconduct. The warning system in the proposed rules is limited to minor misconduct committed on the specific day. Warnings may be given for cross-visiting and objectionable behavior (loud, abusive, or boisterous actions, disruptive behavior, or sexual activities, which constitute unacceptable physical contact (prolonged kissing, necking)). If such behavior continues after a warning, the visit is subject to termination. The maximum penalties for cross-visiting with unapproved parties after a warning or for a visitor failing to follow instructions of facility staff and facility rules is 3 months suspension of visiting privileges.

The maximum penalty for unacceptable physical contact is 6 months suspension of visiting privileges. In other cases, continued objectionable behavior after a warning will result in nothing beyond a termination of the visit. Although a history of warnings for similar cross-visiting or unacceptable physical contact incidents may be relevant to determining the appropriate penalty in such a case, the maximum penalties are not so severe as to require a more formal written warning process.

Assemblyman Aubry expressed a concern that "contraband smuggling, violence and virtually every other misconduct cited on the chart results in an inmate’s confinement to a special housing unit" and that we not "reach the point where all shu inmates also lack visits because the Indefinite Suspension of Visiting Privileges has become as routine as the suspension of packages and commissary." Under the proposed rules, an offender may incur a penalty of up to an Indefinite Suspension of Visiting Privileges only for specific types of misconduct committed in connection with the visiting program, and only after extensive review, regardless of whether the offender appeals the disposition.

Assemblyman Aubry expressed concern with the revision to the search procedures deleting language that previously permitted a visitor to voluntarily remove items that may have triggered a metal detector. He noted that when a visitor cannot clear a metal detector or hand scanner, it does not seem unreasonable to allow such visitor to voluntarily remove whatever items they are willing to remove prior to requiring a strip search or denying the visit. The screening process does require the person seeking entrance to remove concealed jewelry and other metal items prior to scanning. The revision is intended to respond to situations when it would be inappropriate for the visitor to remove the item in the visitor processing area, such as an item of clothing containing metal buckles or a piece of body jewelry. This revision ensures that proper protocols are followed to prevent indecent exposure in the visitor processing area, and to ensure proper documentation of strip searches and limited visual searches.

The New York Civil Liberties Union (NYCLU) focused its comments on the use of the Ion Scanner for visitor screening. The NYCLU has encouraged the Department to reconsider its decision to allow a positive ion scan test result to form the basis of a denial of visitation without providing an option for non-contact visits or secondary searches as an alternative to denial of a visit; to better regulate both the manner in which the tests are administered and the training provided to staff to ensure better accuracy and reliability of test results; and to exempt individuals with disabilities that require them to take prescription medications and children under the age of 16 from ion scan tests.

The Department implemented ion scan screening as part of a pilot project in November 2003. Issues surrounding the manner in which the technology is employed, including who should be subject to testing and what a positive scan should mean, have been considered and reconsidered many times. The Department believes that the proposed regulation strikes the appropriate balance between necessary security screenings and the interests of persons who seek to enter a correctional facility. Offering a non-contact visit or a more intrusive search will not, unfortunately, be sufficient to detect well-hidden contraband and prevent that contraband from being passed to an offender, or to deter visitors from attempting to smuggle drugs into the visiting room on their person.

Furthermore, the equipment is operated only by staff that have been properly trained in the use of the equipment. In addition, appropriate steps are taken to address the concern of "false positives". As noted by NYCLU, there is a belief that certain medications may cause a positive result for a prohibited substance. Even though this common misconception is not correct, in every case where a visitor asserts that a positive result was the result of a prescribed medication, the Department consults with the manufacturer to determine whether the result could potentially be from the medication. In virtually every case, it was determined that the prescribed medication could not have caused the positive test result.

It must be noted that the regulation is not intended to set forth the full ion scan testing protocol. More detailed instructions continue to be provided to appropriate staff through a security sensitive Departmental Directive addressing security in gate areas. However, NYCLU did note that the proposed regulation does not address "calibration" of the equipment. All Department Ion Scanners are calibrated according to factory settings. The comments reference Department issued Ion Scan Procedures specifying that "Detection levels can be adjusted to eliminate lower levels of detection that may occur through casual contact, which may occur if a person unknowingly handled contaminated objects." This is not an issue of calibration. Rather, this issue concerns what threshold is used to determine what concentration of the substance detected will be considered a positive result. The Department uses thresholds that are higher then the manufacturer recommended thresholds. That is, we require a greater concentration of the detected substance before we consider a test result positive. Furthermore, the Department’s procedures set forth stringent criteria to ensure that the machine is working properly and that both the testing area and staff are free of cross-contaminants. These thresholds are set by the Deputy Commissioner for Correctional Facilities or his or her designee and are uniformly applied by all staff assigned to conduct Ion Scan testing. In order to address this concern, a non-substantive revision has been made to section 200.2(e)(1) providing that "All substance abuse detection/ion scan staff shall use the thresholds established and approved by the deputy commissioner for correctional facilities to determine whether or not a test is positive."

Although NYCLU draws comparison to the Federal Bureau of Prison’s (FBOP) policy governing such searches, it should be noted that the Department utilizes the technology only as a security screening tool. Under the Department’s policy, a positive ion scan result alone is insufficient to require further searches that might result in an arrest. Furthermore, unlike the FBOP policy, repeated positive test results do not result in visiting suspensions of 30, 90 and 180 days.

NYCLU asked that the Department "clarify in its proposed regulations if there are more serious suspensions beyond the stated 48 hour suspension." The confusion stems from the consideration under the original pilot project of using graduated sanctions similar to those used by the FBOP and other prison systems. The Department has never implemented such a system. As the regulation makes clear both in Part 200.3 and in the penalty chart, a substance detection test failure or refusal may result in a visit denial for (2) calendar days, nothing more.

NYCLU also suggested exempting children under the age of 16 from Ion Scan testing and recounted a story of a five year old child being traumatized by the scan. They state they "cannot fathom DOCCS’s motivation for exposing such young children to this testing." Unfortunately, visitors have concealed quantities of illegal drugs inside their babies' diapers and elsewhere on their children. Thus, we cannot exempt young children from our security screening protocols.

The joint comments from the Prisoners’ Rights Project of the Legal Aid Society of New York and Prisoners’ Legal Services of New York (PRP/PLS) noted that stopping the introduction of drugs into facilities and curbing inappropriate physical contact in the Department’s visiting rooms are important goals. However, they commented that the proposed regulations failed to adequately consider the countervailing goals of maintaining family and community ties.

The PRP/PLS comments included a general observation that by permitting a maximum penalty of indefinite suspension of visiting privileges for multiple categories of misconduct committed in connection with the visiting program, the Department’s proposed visiting rules impose a system of sanctions even harsher than those allowed by the Supreme Court in Overton v. Bazzetta, 539 U.S. 126 (2003). In Overton, the United States Supreme Court upheld the revocation of an inmate’s visiting privileges with all visitors except for attorneys and clergy based upon guilty findings for two misbehavior reports for substance-abuse violations. The inmate is permitted to seek discretionary reinstatement after two years. The Department disagrees with PRP/PLS’s characterization that our proposed penalty structure is harsher then those reviewed in Overton. The Department’s proposed rules do not permit revocation or indefinite suspension of an inmate’s visiting privileges for substance abuse violations not directly related to the inmate visiting program. When misconduct occurs in connection with a visit, an indefinite suspension is the permissible maximum penalty for a number of categories of misconduct. However, the rule cautions that "the following penalties are intended as maximum penalties for egregious conduct. When determining the appropriate penalty, the surrounding circumstances or the nature of the incident; the severity or egregiousness of the conduct; and/or past instances of misconduct should be considered." Furthermore, in many cases the indefinite suspension would be limited to the involved visitor. In addition, the Department’s rules, as revised, permit an annual request for reinstatement and, where such requests are denied by the Superintendent, there is an opportunity for a further appeal every third year.

PRP/PLS suggested that the Department institute practices, including mandating that DOCCS employees be subject to the same inspection procedures as all visitors upon admittance to the facility to better combat the introduction of drugs. This is beyond the scope of this regulation.

The comments asserted that, at most, targeted suspensions of visits between prisoners and their visitors should be used to address sexual misconduct. As the Department made clear in its Regulatory Impact Statement, we view sexual acts in the visiting room in the presence of other visitors and their children as abhorrent behavior. In order to curtail such conduct, it must be clear that the offender risks losing visits with more than just the offending visitor. However, we note that the rule includes a presumption that a visiting sanction will be on only the offender and the visitor involved in the sexual misconduct, unless other visitors are subjected to exposure. For clarification purposes, we have clarified the penalty chart at section 201.4(e)(3) with respect to the maximum penalty authorized for Unacceptable Physical Conduct. The second sentence of the maximum penalty available for an offender has been revised to provide "A term of Suspension or Indefinite Suspension shall be limited to the involved visitor if the visitor was the only direct participant in the misconduct, however, if other visitors, in particular children, were subjected to exposure then the term of Suspension or Indefinite Suspension may be imposed with all visitors." Similar clarifying changes have been made to the penalty chart for sanctions involving the introduction of contraband money and alcohol.

PRP/PLS objected to the elimination of signature cards as an acceptable form of identification. The Department recognizes that this policy change may be difficult for some and we did consider the potential cost. However, forms of identification have changed significantly since the current regulation was adopted. In this post-September 11th era, the possession of verifiable photographic identification is virtually a necessity. Requiring photographic identification for adult visitors is a necessary change and a first step toward enhancing the Department’s visitor identification system.

PRP/PLS referenced separate correspondence concerning attorney visits. They also specifically objected to language regarding attorneys who are unable to clear a metal detector. In response to prior correspondence from the Prisoners’ Rights Project, we have indicated that we will review suggestions regarding legal visit procedures. Such suggestions will be considered separate and apart from the current rule making. With respect to concerns expressed regarding an attorney or legal representative being unable to clear a metal detector, these concerns have been considered and accepted to the extent that language was added to the rule to ensure that the Superintendent or designee will be consulted in these cases. Contrary to the assertion in the comments, a hand held scanner cannot "show that the source of metal is an underwire bra" and thus a hand scanner alert in the chest or back area is not necessarily sufficient to end the inquiry. Attorneys, like other visitors, should anticipate being subjected to metal detector searches when seeking entrance into a correctional facility and dress accordingly.

Like the NYCLU, PRP/PLS expressed multiple concerns regarding the proposed ion scanner rules. PRP/PLS asserted that a confirmed positive test result should not lead to an automatic visit denial of up to 2 days. Their position and suggested solution is similar to that proposed by NYCLU and thus we refer to our analysis of the NYCLU comments.

PRP/PLS noted that the text of the proposed rule provided for a denial of up to 2 days where the penalty chart provided "Visit Denied for (2) calendar days" on the instant offense. For clarification purposes, we made a non-substantive change to section 200.2(e) and 201.4(e)(2)(ii) to match the penalty chart and delete the misleading phrase "up to".

PRP/PLS asserted that attorneys and their representatives should not be subjected to substance detection searches. We disagree. Persons seeking entrance to a correctional facility, with the exception of those with a statutory right to enter, are properly subject to security screening. Accordingly, attorneys and others seeking to enter a correctional facility are subject to substance detection/ion scan testing at pre-determined random intervals.

PRP/PLS sought further written explanation of the grounds for requesting a strip search and that the Department make available an immediate appeal. These issues were discussed during our November 2010 meeting. The Department will revise the consent to search form to make it clear that the visitor need not consent to a strip search and that choosing not to so consent will have no negative consequences beyond the denial of the visit. Further revision to this proposed rule is not warranted. Similarly, PRP/PLS noted concerns with the potential strip search of a minor and suggested a heightened evidentiary standard. Department staff had many discussions regarding such search procedures and the Department has concluded that the rule sets forth the most appropriate balance for these complicated situations.

PRP/PLS expressed a belief that the language in proposed section 200.3(a)(4) is unclear and suggested that DOCCS needs to make clear that the visitor’s identification is not considered as contraband. We believe the language is clear: "Any article or thing that is not specifically authorized to be possessed by an inmate in a State correctional facility pursuant to the rules of the department or the local rules of the facility. Alcohol, money, business cards and identifying documents are among the items inmates are not permitted to possess." Such items are only contraband if they are passed to the offender. However, the inclusion of alcohol in this list may have been misleading. Thus, we made a non-substantive change moving the word "alcohol" to the list of prohibited items under 200.3(c)(1). As addressed under the assessment of comments from the New York State Defenders Association, business cards have also been removed from the list of items an offender is prohibited from possessing.

PRP/PLS thanked the Department for adopting their suggestion on the preliminary draft to add language at sections 201.2(b)(2)(ii) and 201.3(b) that violation of visiting rules and regulations may result in the denial or termination of a visit and imposition of a term of suspension or indefinite suspension of future visits "under the provisions of Section 201.4 of this Part." They suggested similar language be added to section 201.3(e) concerning an attempt to introduce contraband through a package. The two sections where such language was added are general in nature and thus the reference was appropriate. The reference to the introduction of contraband in a package left for an inmate before a visit is more specific. Such conduct may result in the imposition of a visiting sanction by the Superintendent under section 201.4. However, such misconduct is also likely to result in an arrest and automatic suspension of visiting privileges under section 201.2(a)(7)(ii).

With respect to the proposed rule on acceptable attire, PRP/PLS did recognize that we refined the language from our preliminary draft. They suggested that clear guidelines defining appropriate attire would avoid the imposition of divergent views on what is, or is not, acceptable. They suggested including guidance on specific lengths of skirts, as an example. The Department acknowledges that it is difficult to define what is and is not acceptable as standards of decency and fashion continue to evolve. In order to address this concern, we added a more detailed description to this paragraph clarifying that shorts or skirts shorter than mid-thigh length are unacceptable.

PRP/PLS referenced section 201.4(d) regarding inmate suspensions and noted that the term "visit related misconduct" is not defined. Section 201.4(d) cross-references section 254.7. Section 254.7(a)(1)(iii), addressing available disciplinary sanctions for a Tier III disposition, provides that a hearing officer may impose "loss of visiting privileges for a specified period where the affirmed charges involve improper conduct as a result of the inmate’s presence or conduct in connection with a visiting, family reunion or special events program, or processing before or after participation in such program." Thus, although the term is not defined in the visiting regulation, it is defined in the regulation authorizing a hearing officer to impose a loss of visiting privileges on an offender.

PRP/PLS commented at length about their disagreement with the elimination of clearly defined escalating penalties. They claimed that the proposed regulations provide little to police abuse of discretion. We disagree. The old penalty chart was often inadequate to address instances of misconduct. Thus, more flexibility was necessary. The Department will address the proper use of penalties through training and by policy will create recommended sanction guidelines. The rules do caution that the penalties are intended as maximum penalties for egregious conduct. Further, a number of reviews and safeguards are in place to avoid an abuse of discretion.

PRP/PLS noted an apparent inconsistency on the penalty chart with respect to failing to follow instructions of facility staff and facility rules. There is no inconsistency. One rule addresses noncompliance with instructions during entrance processing. When a visitor chooses not to follow such instructions, the visitor is not allowed into the facility. Once the visitor is in the visiting room, failure to follow instructions of staff or facility rules is sanctionable with a visiting privileges suspension of up to 3 months. PRP/PLS also questioned the removal of "intent" under the guidelines for contraband offenses. The concept of intent remains in the instructions to staff when determining how to respond to an incident. The Department removed the language and the distinction from the penalty chart in the rule based upon past experience with the current rule.

PRP/PLS expressed their belief that a penalty of up to indefinite suspension of all visits is too harsh for offenders and visitors who engage in intercourse, sodomy, touching sexual or other intimate parts of another person, or masturbation. The Department wants to be clear; engaging in a sexual act during a visit or special event where other visitors and children may witness such misconduct will not be tolerated. We reject the suggestion that the new maximum penalty is too harsh.

PRP/PLS commented they would like to see the appeal from a denial of a request for reconsideration to be available more often then every fifth year, if necessary. We recognize that PRP/PLS did not suggest this time frame when they requested the opportunity for further appeal. Again, they referenced the two year time frame in Overton. The United States Supreme Court upheld Michigan’s regulation permitting an inmate to apply for reinstatement of visitation privileges every two years, where the discretion to grant reinstatement rested with the Warden. The Department's rule, as proposed, provides for an annual review by the Superintendent and thus provides greater due process protections than the regulation upheld in Overton. Although the Department believes that permitting a second level of appeal every five years is sufficient, where no such appeal was available following a denial of a request for reconsideration of a revocation of visiting privileges under the current rules, we do recognize that the burden of permitting such reviews more frequently is likely to be minimal. Accordingly, we revised the rule to permit such an appeal every three years, as necessary.

The comments from PRP/PLS suggested that language in section 254.7(a)(1)(iii)(b) addressing the difference between conduct involving a single visitor and that not limited to a single visitor was vague and undefined. In most cases, it is clear whether a single visitor is involved or not. An offender assaulting his visitor involves only the single visitor, while an offender assaulting another offender or a staff member in the visiting room is not limited to the single visitor. Where the Department has taken a position that certain types of misconduct involve more then the single visitor that may not be clear on its face, the proposed rule defines precisely the prohibited conduct: "Misconduct involving Unacceptable Physical Conduct during which other visitors were subjected to exposure is misconduct which is not limited to only the inmate and the specified visitor or visitors. Misconduct involving an attempt to introduce money, alcohol, marijuana, narcotic and other dangerous drugs, any item which is readily capable of being used to cause death or serious injury, or any item which may be used to aid in escape is misconduct which is not limited to only the inmate and the specified visitor or visitors."

PRP/PLS also objected to permitting the imposition of a loss of visiting privileges with all visitors for conduct such as smuggling drugs and dangerous contraband. Offenders often use "mules" or other individuals to bring in contraband. The potential of a loss of visiting with those individuals serves as no deterrent whatsoever. Although PRP/PLS described many of these proposed rules as harsh, they are necessary to properly encourage offenders to make good choices.

PRP/PLS also objected to the proposed provisions of section 254.7(a)(iv) allowing for visit-related sanctions for specified offenses regardless of the location of the misconduct. The Department asserts that such penalties are the only meaningful sanctions for many offenders and that they are necessary and appropriate.

The New York State Defenders Association (NYSDA) focused on issues that impact attorney visits. NYSDA also echoed many of the concerns expressed in the PRP/PLS comments. The Department notes that Legal Visits are currently addressed in a separate Departmental Directive. We will review suggestions regarding legal visit procedures for possible rule making activity once the regulations for entrance procedures and the inmate visiting program are finalized.

NYSDA would like legal visits to be excluded from the entrance procedures in the proposed rules. The Department believes it is necessary to make it clear that entrance procedures apply to all non-employees, including attorneys.

Most of the other comments by NYSDA dealt more with the specific provisions of the legal visits Directive. That Directive will be reviewed and revised separately and the Department will consider adopting rules governing legal visits.

NYSDA sought additional language in proposed section 200.2(d)(iii) clarifying that legal papers may be subjected to a cursory examination for contraband among the pages of legal materials, but nothing more. The Department concluded it was appropriate to add cautionary language to this section providing that "Inspection of handbags, briefcases, and other containers in the possession of an attorney or duly approved legal representative prior to an approved legal visit shall be limited to a cursory examination for contraband. Written materials shall be inspected, as unobtrusively as possible, to verify that the materials do not contain contraband."

NYSDA submitted comments regarding attorneys unable to clear the metal detection process and substance abuse/ion scan testing. These comments were similar to those submitted by PRP/PLS and thus need not be separately addressed.

NYSDA also suggested that the regulation should clearly define the procedure for a confirmed positive Ion Scan test. Such language is included within Department policies, but was not included within the proposed rule. In accordance with the suggestion, the Department made a non-substantive revision to section 200.2(e) to indicate "If a visitor tests positive, a second test will be conducted to confirm or negate the first test result." In addition, the Department clarified that "A confirmed positive test means that a second sample from the same area on the person or the person’s belongings tests positive for the same substance."

NYSDA commented that it does not believe the penalty for a refusal to test should result in a 2 day denial of visitation. They asserted that a refusal to test should be treated like a failure to comply with other search procedures resulting in a denial of entrance on the single day. Metal detector and other searches are conducted on every person, every day. Ion Scan searches are conducted at random locations on randomly selected persons. Thus, the Department believes treating a refusal to submit to a test in the same manner as a positive test is appropriate.

NYSDA pointed out that the language in proposed section 200.2(f)(5) suggested that past refusals to submit to a strip search may be a factor considered in denial of a future visit. They were correct and the Department modified the rule by deleting the word "solely" thereby making it clear that past refusals to submit to a strip search may not be considered as a reason to deny a visit.

NYSDA also suggested that an exhaustive list of contraband items, including items an offender is not permitted to possess, should be given to each visitor or, at a minimum that a facility specific list be posted at each facility and on the Department’s website. NYSDA further asserted that the definition of contraband should not include an attorney’s business card. Upon further consideration, business cards have been removed from the list of items an offender is prohibited from possessing and a cross reference to section 270.2 (B)(14) of Title 7, setting forth the Standards of Inmate Behavior concerning contraband, has been added.

The NYSDA comments sought implementation of a procedure to permit certain prohibited items, such as CD’s and DVD’s, for legal visits. They also sought modification to section 200.3(c)(1) to the extent that it permits staff to determine that certain, nonspecified items may be prohibited, thus resulting in a termination of the visit. The possession of CD’s and DVD’s in a correctional facility is a significant security issue that has the attention of the Department. Facilities for review of such materials in the legal visit area do not exist and thus it is never appropriate to introduce such items during a legal visit. Arrangements for making legal materials in a CD or DVD format available to an offender client must be addressed through the facility administration separate and apart from a legal visit. The language in section 200.3(c)(1), as revised, that "Other items including pocketknives, alcohol and other items posted at the facility entrance or as directed by staff are also prohibited" contemplates an interaction during processing. At that time staff may identify an object as potentially dangerous in the visiting room environment and instruct the visitor to leave the item in a locker or vehicle. If the visitor instead secretes the item and brings it into the visiting room, they may face a visit related sanction.

NYSDA also referenced the language at 201.2(b)(7) permitting the Superintendents to modify department visiting rules to adjust to local conditions and providing that no modification may be imposed without the prior approval of the Commissioner. NYSDA suggested that all such modifications should be posted at the relevant facility and on the Department’s website. Facilities may modify their visiting schedules based on space limitations, visiting bus schedules or similar concerns. These modifications include limiting Saturday and Sunday visits based upon the last name of the offender to be visited, providing special visiting times for specialized program units, or determining which visits will be terminated if the visiting room is at capacity and other visitors are seeking entrance (e.g., first in, first out). Such local visiting policies are provided to the offenders at the facility as a part of their facility orientation. Local visiting policies are also made available to current or prospective visitors through the facility.

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Text of Rule: Revised Regulatory Impact Statement

REGULATORY IMPACT STATEMENT

The Department of Corrections and Community Supervision repeals Part 200 of Title 7 NYCRR and replaces it with a new Part 200 and adds a new Part 201, and amends Sections 253.7, 254.7, and 1704.4.

1. Statutory Authority

Correction Law §§ 112, 137, 138, 146. Correction Law § 112 vests the Commissioner of the Department of Corrections and Community Supervision with the superintendence, management and control of the correctional facilities in the department and of the inmates confined therein, and of all matters relating to the government, discipline, policing, contracts and fiscal concerns thereof.

Correction Law § 137(2) provides that the Commissioner shall provide such measures as he or she may deem necessary or appropriate for the safety, security and control of correctional facilities and the maintenance of order therein.

Correction Law § 138 requires that all institutional rules and regulations defining and prohibiting inmates misconduct shall be published and posted, and that such rules shall be specified and precise giving all inmates actual notice of the conduct prohibited, as well as the range of disciplinary sanctions that can be imposed for a violation of each rule.

Correction Law § 146 vests certain officials with the authority to visit correctional facilities at their pleasure and provides that no other person not otherwise authorized by law shall be permitted to enter a correctional facility except by authority of the Commissioner of the Department of Corrections and Community Supervision under such regulations as he or she shall prescribe.

2. Legislative Objective

By vesting the Commissioner with the rulemaking authority, the legislature intended the Commissioner to promulgate such rules and regulations as he may deem necessary or appropriate for the safety, security and control of correctional facilities and the maintenance of order therein. Visitation greatly enhances an inmate’s ability to be successful upon release from custody when the privilege is used to maintain a positive relationship. Appropriately disciplining the few inmates who violate the visiting room rules will enhance the benefits to the many who use their visiting privileges in a positive way.

In accordance with Correction Law §§ 137 and 138, the legislature intended the Commissioner to promulgate rules as he may deem necessary or appropriate for the safety, security and control of correctional facilities and the maintenance of order therein. The suspension of an inmate’s visiting privileges is necessary and appropriate as a management technique to enforce rules prohibiting the use, possession and exchange of drugs within the State’s correctional facilities.

3. Needs and Benefits

Overview

The Commissioner has the authority to prescribe regulations under which persons may be permitted to enter a correctional facility. Correction Law § 146 provides in pertinent part "The following persons shall be authorized to visit at pleasure all correctional facilities: the governor and lieutenant-governor, commissioner of general services, secretary of state, comptroller and attorney-general, members of the commission of correction, members of the legislature, judges of the court of appeals, supreme court and county judges, district attorneys and every minister of the gospel having charge of a congregation in the town wherein any such facility is situated. No other person not otherwise authorized by law shall be permitted to enter a correctional facility except by authority of the commissioner of correction under such regulations as the commissioner shall prescribe."

The Department’s current visitation policies are the result of litigation initiated in 1981 in a class action lawsuit. The Court found that the Department’s regulations created a liberty interest in visitation and the Department negotiated the Kozlowski consent decree, which was approved in May 1983. The settlement set forth the visiting regulations, which were adopted as Part 200 of Title 7 in February 1986. Those regulations have been in effect since that date with only a few modifications to the penalty provisions in 1989.

The Department successfully sought to vacate the Kozlowski consent decree pursuant to the terms of the Prison Litigation Reform Act (PLRA). In a decision filed November 26, 2001, the Court granted the Department’s motion and terminated the consent decree, finding that the consent decree must be terminated, because it did not meet the requirements of the PLRA. The Court based its decision in large part upon the United States Supreme Court’s decision in Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460 (1989), finding that "the Supreme Court has held that there is no federally created liberty interest in visitation, [and] therefore this consent decree extends beyond what the federal Constitution requires." Kozlowski v. Coughlin, 2001 WL 1506010, *4. The Plaintiffs’ filed an appeal to the Second Circuit Court of Appeals, however, that appeal was withdrawn with leave to re-file based on the Department’s agreement to promulgate new regulations. Since that time, the Department has conducted re search and evaluated numerous variations on the rules before reaching the current proposal.

The United States Supreme Court again addressed visitation in Overton v. Bazzetta, 539 U.S. 126 (2003). This decision was the result of challenges to significant limitations placed on visitation by the Michigan Department of Corrections. The Court recognized that "withdrawing visitation privileges is a proper and even necessary management technique to induce compliance with the rules of inmate behavior, especially for high-security prisoners who have few other privileges to lose." Overton, at 134.

For many years, prior to the 2001 ruling terminating the consent decree, the Department sought authority to change the visiting regulations noting that they were inadequate to deal with certain incidents of extreme violence that sometimes occur in the Department’s visiting rooms. These visiting rooms may be the only place where the perpetrator has access to the victim, whether the victim is another inmate, a staff member or a visitor. This is also the setting where members of the public, including children, may be forced to witness inmate misconduct or fall victim to it. Further, the Department has sought the authority to use the suspension of an inmate’s visiting privileges as a management technique to enforce rules prohibiting the use, possession and exchange of drugs within the State’s correctional facilities.

Despite these problems, the Department continues to recognize the importance of visitation for the vast majority of the inmates committed to the Department and their visitors. Visitation remains the best way for inmates to maintain their relationships with the family and friends. When used to maintain a positive relationship, visitation greatly enhances the inmate’s ability to be successful upon release from custody. Appropriately disciplining the few who violate the visiting room rules will only enhance the benefits to the many who use their visiting privileges in a positive way.

Thus, the Department proposes changes to the regulations governing visitation and the standards of inmate behavior that will appropriately balance the above-referenced concerns. These changes permit the exercise of meaningful visitation sanctions against an inmate or visitor who chooses to violate specified rules. Visitation related sanctions may be imposed on an inmate through the existing procedures of a Superintendent’s Hearing under the existing disciplinary process as set forth in Chapter V of Title 7. Before a visitation sanction may be imposed, the inmate is entitled to a hearing. If the disciplinary disposition is against the inmate, the inmate will have the right to appeal to the Commissioner’s designee to hear such appeals and to challenge the entire disciplinary disposition, including any visitation related sanction.

In those cases where a visitor is issued a decision imposing a visitation sanction, he or she will continue to be entitled to notice of the reason for the sanction, the length of the sanction, copies of the documentation concerning the charges, and an appeal to the Commissioner’s designee. Where the sanction is a term of suspension for six months or more, or an indefinite suspension, the visitor will still be entitled to a hearing upon request.

Finally, in a case where either an inmate’s or a visitor’s visiting privileges are suspended for a term of more than two years or indefinitely suspended, that person will continue to have the ability to request reconsideration of the suspension over two years on an annual basis. If the suspension remains in effect, the denial of a request for reconsideration may be appealed to the Commissioner’s designee during the fifth year and every five years thereafter if necessary.

Ultimately, it is the intent of these changes to provide inmates and their visitors with the opportunity to enjoy visitation in a safe environment.

Statement of Changes

Part 200 Entrance to a Correctional Facility is added to provide the rules for persons, other than facility employees, seeking to enter a correctional facility. This sets forth policy, requirements and restrictions for both those seeking entrance and the staff tasked with ensuring their safety and the security of the facility.

200.1 Identification. This section defines and clarifies the acceptable forms of identification required for each person, including visitors and other persons not employed at the facility, seeking entrance to a correctional facility. Under the proposed rules, photographic identification will be required of all adult visitors.

This section also expands on the required procedures that, upon entering the gate area, visitors and other persons not employed at the facility are required to follow. The proposed rules provide procedures for verifying the identification of a person upon entrance to the correctional facility and upon leaving the correctional facility.

200.2 Search. This section provides that all persons entering a correctional facility are subject to search as a condition of entrance and that any visitor who refuses to comply with any required search procedure shall not be permitted entrance to that facility. This section sets forth the procedures for each type of search that may be required and establishes the effect of a visitor’s failure to successfully pass those searches.

200.3 Unauthorized item/contraband. This section provides the department’s definition of contraband including the types of contraband, the discovery of which will result in confiscation and the contact of law enforcement. A list of items that are prohibited inside a correctional facility and instruction to visitors for declaring and storing such items is provided.

Part 201 Visitation is added to provide a uniform manner of the operation of the inmate visitor program for visitors admitted to the facility, inmates participating in, and department staff supervising the inmate visitor program. Visiting rules, including the types of misconduct and associated penalties detailed, procedures for the imposition of visiting sanctions, and procedures for appealing such sanctions are set forth.

201.1 Purpose. This section provides that appropriate participation in the New York State Department of Corrections and Community Supervision inmate visitor program provides inmate under custody the opportunity to maintain relationships with persons from the outside in order to offer emotional support in adjusting to the prison environment and to promote better community adjustment upon release.

201.2 Procedures. This section is derived from existing section 200.2(a). The proposed rules maintain many of the pre-existing procedures and limitations. Rules for first-time visitors have been simplified. Procedures for visitors under 18 years of age have been revised. The rules governing the potential denial of visiting privileges for persons with a pending or past criminal proceeding have been modified to disqualify a person with charges related to conduct at a correctional facility or involving an inmate, such as promoting prison contraband, from visiting until the charges are resolved.

201.3 Guidelines. This section provides that inmates and their authorized visitors abide by the established visiting rules and regulations, posted facility rules, and the instructions given by staff. This section discusses those rules including leaving the visiting room, the exchange of items, leaving packages for the inmate, consumption of food, using lavatories, acceptable attire, and physical contact during visits.

201.4 Termination, term of suspension and indefinite suspension. This section provides that a superintendent may deny, limit, suspend for a term or indefinitely suspend the visitation privileges of any visitor if the superintendent has reasonable cause to believe that such action is necessary to maintain the safety, security, and good order of the facility. The standards and the procedures that must be followed by facility staff to implement visiting restrictions and their responsibilities after a penalty is imposed are provided. The types and effects of those penalties are outlined, as well as the procedures for notifying the visitors and inmates of the imposition of a visiting sanction of the available review mechanism. Under the proposed rule, only the visitor may appeal his or her visitation penalty. This section contains a chart detailing types of misconduct and the penalties for a first offense and the maximum penalties for each offense. A reference is also included to the procedures under Chapter V of this Title whereby a loss of visiting privileges may be imposed on an inmate pursuant to the procedures for implementing the standards of inmate behavior.

201.5 Visitor appeal hearings. This section outlines the process to be followed when a visitor requests a hearing to appeal from a suspension of visiting privileges for a term of six months or more, including an indefinite suspension of visiting privileges. The procedures are derived from the existing hearing procedures set forth at section 200.5(c)(2) - (9). Under the proposed rules, a written decision must be issued within 60 days of the hearing.

201.6 Reconsideration of Suspension in Excess of Two Years. This section is derived from existing section 200.5(d). Under this section, any visitor or inmate whose visiting privileges have been suspended for a term over two years or indefinitely suspended may request a reconsideration or modification to the sanction after 1 year and annually thereafter. The request is made to the superintendent of the facility housing the inmate to be visited. The superintendent evaluates the request and advises the visitor and inmate of the result in writing. If the suspension remains in place without modification for five years, the superintendent’s denial or a request for reconsideration may be appealed to the Commissioner’s designee in the fifth year and every five years thereafter.

Section 253.7 has been revised to clarify that visiting privileges may not be withheld as the result of a disciplinary hearing, commonly referred to as a Tier II hearing in the Department’s three-tiered disciplinary system.

Section 254.7 has been revised to permit the suspension of an inmate’s visiting privileges as the result of a superintendent’s hearing, commonly referred to as a Tier III hearing in the Department’s three-tiered disciplinary system. Under the proposed rules, an inmate’s visiting privileges may be suspended if an inmate is found guilty of misconduct "as a result of the inmate’s presence or conduct in connection with a visiting, family reunion or special events program, or processing before or after participation in such program." Visiting sanctions are available for a wide variety of categories of serious misconduct. Where the conduct is only between the inmate and a visitor, the sanction may be limited to that inmate’s ability to receive visits from that visitor. Where the conduct involves other persons, including committing a sexual act where other visitors may witness such misconduct, a visiting sanction would preclude the inmate from all visits for the specified term. Similarly, conduct involving the smuggling of money, alcohol, marijuana, narcotics and other dangerous drugs, weapons, and escape paraphernalia would authorize the hearing officer to suspend visiting privileges with all visitors. Visiting sanctions under this subparagraph fall within the limits set forth in the penalty chart set forth at section 201.4(e).

A number of additional procedural safeguards have been added to this rule as well. Any disposition imposing a loss of visiting privileges with all visitors for two years or more is automatically forwarded to the superintendent for a discretionary review under section 254.9. Where the sanction is an indefinite suspension of the inmate’s visiting privileges, the visiting sanction will be reviewed by the director of special housing and inmate disciplinary program even if the inmate does not appeal. A disciplinary loss of visiting privileges over two years, including an indefinite suspension, is entitled subject to the request for reconsideration procedures set forth at section 201.6. In any case where the hearing officer can impose a loss of visiting privileges; he or she may choose to limit the inmate to noncontact visiting as an alternative.

Section 254.7(a)(1)(iv) provides that an inmate’s visiting privileges may be suspended for drug related offenses or for refusing to cooperate with urinalysis testing procedures. These sanctions are authorized without respect to the location of the misconduct. A first offense may be punished by up to 6 months loss of visiting privileges. A second or subsequent offense may be punished by up to 1 year loss of visiting privileges.

Section 1704.7 has been revised to clarify the limitations on visiting for an inmate confined to a cell or room for more than 30 days, and that further restriction may be imposed under Part 201, Chapter V or section 302.2(i)(1) of Title 7 NYCRR.

4. Costs

a. To agency, state and local government: No discernable costs are anticipated.

b. Cost to private regulated parties: None. The proposed rule changes do not impose any costs on any private regulated parties.

c. This cost analysis is based upon the fact that the rule changes merely clarify and expand upon previously established rules regarding the inmate visiting program. No additional procedures or new staff are necessary to implement the proposed changes.

5. Paperwork

There are no new reports, forms or paperwork that would be required as a result of amending these rules.

6. Local Government Mandates

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

7. Duplication

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

8. Alternatives

The Department has considered a number of alternatives to preserve maximum visitation privileges for the vast majority of the inmates committed to the Department and their visitors in recognition of the fact that visitation remains the best way for inmates to maintain their relationships with the family and friends when such privileges are used to maintain a positive relationship. The Department seeks to change the visiting regulations in that they have been inadequate to deal with certain incidents of extreme violence and other types of misconduct that sometimes occur in the Department’s visiting rooms and to permit the Department to use the suspension of an inmate’s visiting privileges as a management technique to enforce rules prohibiting the use, possession and exchange of drugs within the State’s correctional facilities. The proposed rules also set forth uniform entrance procedures for all persons not employed by the Department seeking to enter a Department facility.

The Department considered various alternatives to the proposed rules for available visitation related dispositions upon a determination of guilt following a superintendent’s hearing under section 254.7. In order to balance the Department’s needs to 1) address serious visit related misconduct; 2) the abuse of drugs in the Department's Correctional Facilities and 3) make it clear that a lengthy suspension of visiting privileges is seen as a significant penalty, the Department added a number of procedural protections to section 254.7.

The proposed rules allow for a sanction involving the loss of visiting privileges for a wide-range of visit-related misconduct. These sanctions may involve a loss of visiting privileges with specified visitors where the misconduct involved only the inmate and those visitors. Where the misconduct was not limited to a specified visitor or visitors (such as an assault on a staff member or another inmate) and for certain types of misconduct where, in the Department’s judgment, other persons such as staff or other visitors are effected (sexual conduct in the presence of other visitors and their children, smuggling of contraband such as drugs, weapons, etc.), the sanction will involve a loss of all visiting privileges.

To ensure the appropriate use of these new penalties, any disposition imposing a loss of visiting privileges with all visitors for two years or more is automatically forwarded to the superintendent for a discretionary review under section 254.9. Where the sanction is an indefinite suspension of the inmate’s visiting privileges, the visiting sanction will be reviewed by the director of special housing and inmate disciplinary program even if the inmate does not appeal. The hearing officer also has the discretion to limit an inmate to noncontact visiting in lieu of suspending all visiting privileges.

The proposed rules also authorize visiting sanctions for certain types of inmate misconduct that is not directly related to visitation. Although the Department considered making such sanctions available for a wide-range of serious misconduct, it concluded that at this juncture visiting sanctions would be made available only for misconduct involving drug use, drug possession and urinalysis testing procedures. Also, rather than leaving the length of the penalties completely within the discretion of the hearing officer, sanctions are limited to 6 months for a first offense and 1 year for any repeat offense.

During the drafting process, and in connection with ongoing matters related to the Kozlowski litigation, the Department shared a draft of the proposed rules with Prisoners’ Legal Services of New York (PLS). PLS in turn shared the draft with the Legal Aid Society, Prisoners’ Rights Project. The two organizations submitted joint comments by letter dated September 13, 2010. On November 3, 2010, several representatives of PLS and Legal Aid participated in a meeting with the Department to discuss the proposed rules.

The primary concerns noted involved the attorneys and others having difficulty clearing metal detector searches, concerns regarding the substance detection/Ion Scan testing, the authorized visit related penalties and the availability of central office review for "revocations", and the authorization under the inmate disciplinary rules of a suspension of all visitation privileges when conduct is not limited to a single visitor. Many of these concerns were freely discussed at the meeting. Although some of the concerns were determined to be the result of a difference in philosophy, the Department has made a number of revisions to the proposed rule based upon the comments and the discussions.

The current proposal clarifies that certain types of garments, such as underwire bras and clothing containing metal studs, are likely to set off metal detectors resulting in the potential that a more intrusive search will be necessary before visitation will be permitted. With respect to the concerns on attorney visits, the rule has been modified to clarify that the front gate staff should consult with the superintendent before requesting that the attorney consent to a more intrusive search.

In the draft rule, the Department utilized 60 days for all appeal timeframes. PLS and Legal Aid suggested that this was too long to decide an appeal on a suspension of visiting privileges for a term of less than 6 months. The Department, PLS and Legal Aid discussed the matter and concluded that 45 days was a reasonable time frame for issuing a written decision reviewing a suspension of visiting privileges for a term of less than 6 months.

In an effort to ease concerns over the potential for the increased use of "revocations" of visiting privileges, a penalty authorized under the current rule, which is available for more categories of misconduct under the proposed rule, the Department has redrafted the penalty to provide for the "indefinite suspension" of visiting privileges. Under either the originally proposed revocation or an indefinite suspension, the visitor may apply to the superintendent for modification of the penalty on an annual basis. As a result of the discussion with PLS and the Legal Aid Society, the Department created the additional opportunity to appeal the denial of such a request for reconsideration every five years by writing to the Commissioner.

9. Federal Standards

The proposed rules are consistent with United State Supreme Court precedent in Overton v. Bazzetta, 539 U.S. 126 (2003) and Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460 (1989) analyzing visitation privileges in the prison context.

10. Compliance Schedule

The Department of Corrections and Community Supervision will achieve compliance with the proposed rules over a period of six months following adoption.

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