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New York’s Protection & Advocacy System and Client Assistance Program

Report and Recommendations Concerning
Attica Correctional Facility’s
Residential Mental Health Unit

September 2017

725 Broadway, Suite 450
Albany, New York 12207
(518) 427 -6561 (fax)

25 Chapel Street, Suite 1005
Brooklyn, New York 11201
(718) 797-1161 (fax)

44 Exchange Blvd, Suite 110
Rochester, New York 14614
(585) 348-9823 (fax)

mail@DRNY.org ● www.DRNY.org
(800) 993-8982 (toll free) ● (518) 432-7861 (voice) ● (518) 512-3448 (TTY)

TABLE OF CONTENTS
A.

EXECUTIVE SUMMARY………………………………………………………………1

B.

BACKGROUND…………………………………………………………………………2
1. Scope of Investigation……………………………………………………………......3
2. Reported Allegations of Abuse and Neglect………………………………………..3

C.

INVESTIGATIVE FINDINGS………………………………………………………….5
1. Cell Shields……..……………………………………………………………………..5
2. Restrictions on Out-of-Cell Programming and Therapy……………..…………..11
3. DOCCS Staff Training…………………………………………………………..….13
4. Confidential Mental Health Treatment…………………………………..………..16
5. Location of the RMHU………………………………..…………………………….18

D.

RECOMMENDATIONS……………………………………………………………….20

E.

CONCLUSION…………………………………………………………………………21

APPENDIX A – Definitions of Abuse and Neglect
APPENDIX B – OMH Response to DRNY Freedom of Information Law Request

ii

A.

EXECUTIVE SUMMARY

Disability Rights New York (DRNY) is the designated federal Protection and Advocacy System
for individuals with disabilities in New York State.1 DRNY has broad authority under federal and
state law to monitor conditions and investigate allegations of abuse or neglect occurring in any
public or private facility, including state prisons.
DRNY monitored and investigated Attica Correctional Facility’s Residential Mental Health Unit
(RMHU), one of several residential mental health treatment units (RMHTU). The New York State
Department of Corrections and Community Supervision (DOCCS) operates segregated
disciplinary confinement units called Special Housing Units (SHU) and Long-Term Keeplock
Units. Individuals diagnosed with serious mental illness must be removed from SHU or LongTerm Keeplock and placed into a RMHTU. The RMHTUs are jointly operated by DOCCS and
the New York State Office of Mental Health (OMH).
DRNY conducted a site visit and in-person interviews at Attica in August 2015, corresponded with
incarcerated individuals from August 2015 through December 2016, reviewed security and mental
health records and policies, and communicated with DOCCS and OMH executive staff.
DRNY finds that DOCCS and OMH abused and neglected2 RMHU participants, and violated New
York Correction Law provisions governing RMHTUs, collectively known as the SHU Exclusion
Law. Specifically, DRNY finds DOCCS and OMH violated New York Correction Law §§ 2(21),
401(1), 401(2), and 401(6).
1. DOCCS and OMH neglected and abused RMHU participants by imposing cell shields in
the RMHU without consideration of an individual’s mental health condition and without
clinical input by OMH, in violation of the SHU Exclusion Law.
2. DOCCS’s regulations fail to require OMH clinical input and consideration of mental health
status before issuing and when renewing cell shield orders, thereby violating the SHU
Exclusion Law.
3. DOCCS’s use of cell shields in the RMHU violates state regulations and due process by
failing to justify implementation and continuation of cell shield orders.
4. DOCCS and OMH neglected and abused RMHU participants by failing to clinically assess
their therapeutic needs prior to imposing programming restrictions, despite the requirement
of the SHU Exclusion Law, and by failing to provide a safe environment.

1

DRNY is supported by the U.S. Department of Health & Human Services, Administration on Intellectual and
Developmental Disabilities; Center for Mental Health Services, Substance Abuse & Mental Health Services
Administration; U.S. Department of Education, Rehabilitation Services Administration; and the Social Security
Administration. This report does not represent the views, positions, or policies of, or the endorsement of, any of these
federal agencies.
2
See Appendix for definitions of abuse and neglect.
1

5. DOCCS neglected RMHU participants and violated the SHU Exclusion Law by staffing
the RMHU with SHU officers and other untrained staff. DOCCS continued to neglect
individuals and violate the law by failing to correct the problem after notification by
DRNY.
6. DOCCS and OMH neglected RMHU participants by providing “alternative therapy” cellside, including in some cases when participants are behind cell shields, thereby denying
RMHU participants appropriate treatment.
7. DOCCS does not provide an adequate therapeutic setting for RMHU participants.
DOCCS and OMH must take immediate action to ensure a therapeutic environment that is free
from abuse and neglect.

B.

BACKGROUND

The Attica RMHU is a non-disciplinary therapeutic unit. The RMHU is one of several programs
jointly operated by DOCCS and OMH to provide an alternative to solitary confinement for
individuals with serious mental illness who have been sentenced to disciplinary segregation for
over 30 days. N.Y. Correction Law §§ 2(21), 137(6)(d), 401(1). The Attica RMHU is the smallest
of the state’s RMHTUs, with a ten-person housing unit. The RMHU permits participants to be out
of their cells four hours each weekday for programming, and one hour each weekday for recreation.
The program area consists of five classrooms of varying sizes and arrangements. One classroom
has six “therapeutic cubicles,” which are standalone mesh cages, each approximately the size of a
large phone booth. Four classrooms have varying numbers of “Restart” chairs and some also have
one or more therapeutic cubicles. A Restart chair uses a floor-level locking device to secure the
individual to a chair using ankle restraints. A small desk is connected to the chair. DOCCS uses
therapeutic cubicles and Restart chairs to provide programming in a secure environment.
The SHU Exclusion Law prescribes how the RMHTUs must operate. Individuals in the RMHTUs
must “receive therapy and programming in settings that are appropriate to their clinical needs”
while maintaining the safety and security of the unit. N.Y. Correction Law § 401(1). The clinical
needs of individuals must be considered in the administration and day-to-day operation of the
RMHU, including conditions in the housing unit. N.Y. Correction Law § 2(21). All “decisions
about treatment and conditions of confinement shall be made based upon a clinical assessment of
the therapeutic needs of the inmate and maintenance of adequate safety and security.” N.Y.
Correction Law § 401(2)(a)(iii) (emphasis added). DOCCS and OMH must also:




take into account an individual’s mental condition before placing restrictions on out-of-cell
programming, N.Y. Correction Law § 401(2)(a)(iii);
consider an individual’s mental health needs when imposing restrictions on property,
services, or privileges, N.Y. Correction Law § 401(2)(b);
take into account an individual’s mental health condition when reviewing that individual’s
disciplinary segregation sanctions, N.Y. Correction Law § 401(5)(b).

2

The SHU Exclusion Law contains a strong presumption that RMHU participants receive out-ofcell programming, N.Y. Correction Law § 401(2)(a), and a strong presumption that RMHU
participants not be punished for conduct on the unit and not be removed from the therapeutic
environment, N.Y. Correction Law § 401(5)(a).
1.

Scope of Investigation

DRNY conducted monitoring at the Attica RMHU on August 19-21, 2015, pursuant to its authority
as the Protection and Advocacy System in New York State. Prior to the monitoring visit, DRNY
received complaints about discipline, restrictions, and the location of the RMHU adjacent to the
SHU galleries.
During the monitoring visit, DRNY toured the RMHU and the programming area and interviewed
eight RMHU participants and one SHU inmate who was later admitted to the RMHU. Between
August 2015 and December 2016, DRNY corresponded with seven additional individuals about
their experiences in the RMHU. Based on the monitoring visit and additional complaints, DRNY
began an investigation into complaints of abuse and neglect. DRNY requested individual records,
disciplinary records, mental health records, Plexiglas cell shield orders and renewals of orders, and
documentation pertaining to out-of-cell programming restrictions. DRNY also requested policies,
procedures, and handbooks, as well as information about DOCCS staffing. DRNY reviewed more
than seven-hundred pages of such records.
2.

Reported Allegations of Abuse and Neglect

People complained that the Attica RMHU differs little from a SHU because it operates in a punitive
manner. The most troubling complaints related to the frequent presence of and alleged harassment
of participants by SHU officers in the RMHU and the excessive use of cell shields.
All sixteen program participants reported that officers harassed and
mistreated individuals in the unit. They attributed the tense
environment to SHU officers who were assigned to posts in the RMHU,
and they complained that both SHU and RMHU officers treat RMHU
participants like they are on disciplinary status, similar to SHU inmates.
Numerous participants reported that officers “hit people’s triggers,”
caused them to “bug out,” and exacerbated people’s underlying mental
health conditions to the point where they contemplated suicide or
engaged in self-harm. Participants also complained that SHU officers
issued misbehavior or negative informational reports, leading to cell
shields and loss of program stage level. There were also complaints
that officers reportedly retaliated against participants for filing
grievances by withholding supplies or turning off hot water.

“The SHU officers
verbally harass us [,] also
by turning our water off, or
our lights so we can’t write.
In the winter time, they
open all the windows to
freeze us out, throw water
on us, and leave the
window open all night.”—
Participant F, 7/2016

Individuals interviewed had numerous complaints about the prevalence
of cell shields in the RMHU. Complaints included that copies of cell shield orders and renewals
were not provided to individuals who were under the orders, contrary to DOCCS regulation 7
NYCRR § 305.6(d)). DRNY received complaints about the heat in the cells in the summer and
3

poor ventilation caused by the cell shields. Individuals also complained that cell shields were used
to punish people, that cell shields send the message that “we’re animals,” and that staff place new
admissions under a cell shield when they first arrive to the unit. Additionally, DRNY received
complaints regarding lack of confidentiality in communications with mental health staff due to the
presence of security officers, and limitations on privileges and incentives as a result of the
RMHU’s location in the SHU building at Attica. One individual summarized the attitude of
security staff as, “[t]his is Attica, and we do want we want, how we want, and if you don’t like it,
don’t come to prison.” Numerous RMHU participants complained to DRNY that DOCCS
imposed SHU restrictions upon them because RMHU housing is physically located in the SHU.
Through the fall of 2016, DRNY continued to receive complaints about conditions in the unit,
including that conditions were excessively punitive. RMHU participants also reported that they
were facing retaliation for filing grievances.

4

C.

INVESTIGATIVE FINDINGS
1. Cell Shields

FINDING 1:
DOCCS and OMH neglected and abused RMHU participants by imposing cell shields in the
RMHU without consideration of an individual’s mental health condition and without clinical
input by OMH, in violation of the SHU Exclusion Law.
DOCCS and OMH fail to consider the risk to mental health in issuing and renewing—often,
repeatedly—cell shield orders for individuals with serious mental illness. DOCCS and OMH
consistently issued cell shields to individuals with very acute mental health needs, without
consideration of their mental health condition and without clinical input by OMH staff. 3
Considering the serious impact cell shields can have on mental health, DOCCS excessively uses
cell shields in the RMHU, and DOCCS’s and OMH’s practices violate the SHU Exclusion Law.
Cell shields are a restrictive device that can be affixed to an inmate’s cell door. The cell shield is
a sheet of Plexiglas with small air holes only at the bottom. In the Attica RMHU, the cells have
bars that are covered with a metal mesh gate, and when there is no cell shield installed the air flows
through the gate. Cell shields prevent the free flow of air into the cell and greatly diminish the
ability to communicate with people outside the cell. Cell shields also impede visibility into the
cell and from the cell out to the gallery.

AIR HOLES

Cell with shield

Cell without shield

Two cell shields were in place in the RMHU during DRNY’s monitoring visit in August 2015.
DRNY requested all cell shield orders for eight individuals who were in the RMHU to review
regulatory compliance, reasons for cell shield use, consideration of individuals’ mental status, and
duration of cell shield orders. DOCCS produced five sets of cell shield orders for four individuals.
Thus, half of the individuals had cell shields in place for at least some period of their confinement
in the Attica RMHU.

3

Where appropriate, DRNY has included complaint examples throughout this report. DRNY has assigned a
pseudonym to each program participant because DRNY is required to keep the identity of complainants confidential.
45 C.F.R. § 1326.28(b)(1)(i)-(iv); 42 C.F.R. § 51.45(a)(1).
5

RMHU participants remain isolated in their cells nineteen hours a day, and more if they are also
restricted from programming. Cell shields markedly deepen that isolation and heighten the risk of
worsening mental health conditions. Additionally, hot temperatures during summer months create
stress on individuals who are prescribed psychotropic medications that cause heat sensitivity.
OMH specifically warns, “[t]hose in the greatest danger of succumbing to the most serious heat
illnesses are . . . those taking certain medications, including psychotropic drugs.” See New York
State Office of Mental Health, “How to Deal with Heat Illnesses” (brochure), available at
https://www.omh.ny.gov/omhweb/heat/HeatIllness.pdf (last accessed Mar. 15, 2017). By
restricting air flow and ventilation, cell shields intensify the environmental stress for individuals.
DOCCS and OMH neglect and abuse RMHU participants by subjecting them to cell shields
without consideration of the risk to participants’ mental health state. Decisions about conditions
of confinement must be “made based upon a clinical assessment of the therapeutic needs of the
inmate and maintenance of adequate safety and security on the unit.” N.Y. Correction Law §
2(21). DOCCS and OMH failed to perform clinical assessments of RMHU participants before
imposing cell shields, causing injury to RMHU participants.4
The experience of Participant A is an example of DOCCS’s and OMH’s failure to take account of
an RMHU participant’s deteriorating mental health when imposing a cell shield. DOCCS
continually subjected Participant A to a cell shield even after Participant A engaged in selfharming behavior and returned from a psychiatric hospital.

___________________________________________
PARTICIPANT A
___________________________________________
Participant A has both intellectual and mental health disabilities. He arrived at the RMHU
in 2014. DOCCS immediately imposed a cell shield the day he arrived because of a past
incident at Five Points and past unhygienic acts. DOCCS renewed the order repeatedly,
for a total of three-hundred and seventy-nine continuous days. Participant A deteriorated
while under the cell shield. In 2015, Participant A told staff he wanted to die. After being
moved to the Residential Crisis Treatment Program (RCTP) for observation, he
swallowed a straightened paperclip and was hospitalized. He returned to the Attica RCTP
twenty-one days later; however, because he made no progress, nine days later, OMH
transferred Participant A to CNYPC for psychiatric hospitalization. There, he told staff
he self-harmed due to depression and hopelessness, and that he felt suicidal about being
in the RMHU. CNYPC staff noted Participant A’s extensive history of swallowing
objects, his “poor insight and judgment,” and his low intellectual functioning. CNYPC
staff recommended that upon return to the prison:
4

A cell shield is a condition of confinement. See Willey v. Kirkpatrick, 801 F.3d 51, 68 (2d Cir. 2015) (holding that
district court which dismissed unsanitary conditions of confinement claim failed “to consider the effect that the cell
shields would have in exponentially amplifying the grotesquerie of the odor of the accumulating [human] waste”);
Ruggiero v. Prack, 168 F. Supp. 3d 495, 518-21 (W.D.N.Y. 2016) (finding that dispute over justification for cell shield
orders and renewals and whether “it is possible to exercise in a 3’ X 6’ space inside of an unventilated cell covered in
plexiglass” precluded summary judgment on Eighth Amendment conditions of confinement claim).
6

Staff should continue to work on his developing and using coping skills. It
is also important that [A] is in a placement where he can be closely monitored
for any increase in the frequency or intensity of warning signs for suicide
placing him at imminent risk of harm to himself, and that appropriate
measures are implemented to maintain his safety if needed.
DOCCS ignored CNYPC’s recommendations. As soon as Participant A returned to
Attica, direct from three weeks of inpatient psychiatric care, DOCCS immediately
renewed the original 2014 cell shield order, without any documented input from OMH
staff. DOCCS justified renewing the shield order because Participant A spat at an officer
in 2015. DOCCS also cited the Five Points incident and prior unhygienic acts. DOCCS
renewed the order on these same grounds repeatedly. None of the renewal documentation
referenced any recent behavior or contained any clinical assessment of Participant A’s
current mental health condition.

___________________________________________
A period of adjustment with enhanced therapeutic supports is necessary when any patient
transitions from a hospital setting to a correctional setting. Other jurisdictions have recognized
this need. Administrators overseeing mental health in New York City jails transition people who
are newly discharged from hospitals to a mental health unit called the Program for Accelerating
Clinical Effectiveness (a.k.a. PACE Hospital Step-Down unit) on Rikers Island. Patients in PACE
units may move around the unit except during count and the nighttime lock-in period, have easy
access to clinicians whose offices are located on the unit, have access to a large common area, and
participate in individual and group therapy on the unit.5
DOCCS and OMH do not provide a similar therapeutic environment for RMHU participants, as
shown by the lengthy use of cell shields without assessment of an individual’s therapeutic needs,
even after an extended psychiatric hospitalization. Disturbingly, DOCCS also places individuals
behind a cell shield after an admission to the RCTP for crisis observation and stabilization, without
any clinical assessment or other input from OMH staff required by N.Y. Correction Law § 2(21).

This therapeutic environment has been successful: PACE units “have resulted in increased adherence to medical
regimens, reduced injuries to patients and fewer uses of force.” Oversight: Evaluating Recent Changes in Healthcare
in City Correctional Facilities Before New York City Council Comm. on Health, Fire and Criminal Justice Services,
Mental Health, Developmental Disability, Alcoholism, Substance Abuse and Disability Services (May 26, 2016)
(Testimony of Patricia Yang, Senior Vice President, NYC Health + Hospitals).
5

7

___________________________________________
PARTICIPANT B
___________________________________________
DOCCS imposed a cell shield on Participant B for over one month in 2015 for reaching
through a door hatch that had been locked. The cell shield order stated Participant B
“create[d] a potential safety and security issue” and his “behavior is extremely disruptive
and adversely effects the proper operation of the RMHU unit.” During this time,
Participant B had episodes reflecting his poor mental state. Participant B threatened selfharm and was admitted to the RCTP within one week of DOCCS initially ordering the
cell shield. In a meeting with the psychiatrist three days after his RCTP admission,
Participant B reported suicidal ideation and that he was “depressed due to recent
punishments from [corrections officers].” The psychiatrist increased Participant B’s
psychiatric medications following this interview and authorized his release from RCTP.
Participant B returned to the RMHU with the cell shield in place.

___________________________________________
Even though Participant B reported thoughts of self-harm, suicidal ideation, and depression
regarding punishment in the RMHU, the clinical record contains no documentation that DOCCS
and OMH consulted regarding the cell shield prior to imposing it or following Participant B’s
RCTP admission.
DOCCS’s use of cell shields in the RMHTUs without OMH clinical assessment of individuals’
mental health needs exposes people with serious mental illness to a risk of harm and violates N.Y.
Correction Law § 2(21). OMH fails to meet its obligation to ensure that the “therapeutic needs of
the inmate” are considered in programs that OMH jointly operates with DOCCS, because OMH
simply defers to DOCCS regarding appropriateness of cell shield use in the RMHTUs. N.Y.
Correction Law § 2(21). In December 2016, DRNY inquired about OMH’s role in the application
of a cell shield order in the Great Meadow Behavioral Health Unit. The Director of CNYPC
demurred in response to DRNY’s inquiry, stating “DOCCS is responsible for disciplinary
sanctions, therefore, CNYPC defers to DOCCS to address DRNY’s inquiry regarding cell shield
orders and episodes of Exceptional Circumstances.”6 Similarly, in response to a letter concerning
restrictions placed on an incarcerated woman in the Therapeutic Behavioral Unit, a mental health
program, at Bedford Hills Correctional Facility, the CNYPC Director stated, “your inquiries
related to disciplinary status, history and exceptional circumstances should be directed to the
Department of Corrections and Community Supervision.”7 DRNY understands OMH’s deference
to DOCCS to apply statewide through all the RMHTUs. DOCCS and OMH neglect and abuse
RMHU participants, by failing to provide a safe environment for RMHU participants and by
rendering care or treatment which causes injury. 42 U.S.C. § 10802.
6

Letter from Lori Schatzel, Director, Central New York Psychiatric Center, to Elena Landriscina, Staff Attorney,
DRNY (Jan. 12, 2017).
7
Letter from Lori Schatzel, Director, Central New York Psychiatric Center, to Elena Landriscina, Staff Attorney,
DRNY (Mar. 30, 2017).
8

FINDING 2:
DOCCS’s regulations fail to require OMH clinical input and consideration of mental health
status before issuing and when renewing cell shield orders, thereby violating the SHU
Exclusion Law.
DOCCS’s cell shield regulations do not require consideration of an individual’s mental health
condition prior to and after imposing the harsh restriction of a cell shield and, as such, violate the
SHU Exclusion Law.

CELL SHIELDS
DOCCS imposed a cell
shield on Participant D
immediately following his
arrival to the RMHU in
2015. In this case, the
individual was behind a
cell shield for 59 days.
The reason for the order
was an unhygienic act at
his previous facility and
“an extensive history of
Unhygienic Acts.” The
individual also received
240 days of SHU for the
incident. DOCCS
repeatedly renewed the
order on the same grounds
without any new alleged
misbehavior.

Cell shields may only be imposed for “good cause” including:
“(1) Spitting through the cell door, or the throwing of feces,
urine, food, or other objects through the cell door. (2) The
inmate refuses to keep his/her hands within the cell and/or
otherwise attempts to assault or harass staff. (3) The inmate is
so disruptive as to adversely affect the proper operation of the
unit.” 7 NYCRR § 305.6(b).
DOCCS applies the cell shield regulations to all individuals,
regardless of their disabilities or their placement in a
therapeutic unit. Moreover, DOCCS has not adopted any
policy regarding limitations on the use of cell shields in RMHU.
DOCCS’s operational policy for the Attica SHU (where the
RMHU is located) describes cell shield procedures, but does
not require any consideration of mental health condition for
RMHU participants. DOCCS Facility Operations Manual #
3.404: Special Housing Unit (2nd & 3rd Floors) Reception
Building, at pg. 10. Cell shields are not addressed in the Attica
RMHU Program Operations Description or Inmate-Patient
Handbook. DOCCS’s policies, therefore, violate the SHU
Exclusion Law.

FINDING 3:
DOCCS’s use of cell shields in the Attica RMHU violates state regulations and due process
by failing to justify implementation and continuation of cell shield orders.
DOCCS’s practices regarding cell shields violate the minimum standards in DOCCS’s current
regulations, because DOCCS justifies continuing cell shield orders for weeks or months based on
past behavior. DOCCS also violates RMHU participants’ due process rights by failing to conduct
a meaningful review of the appropriateness of the cell shields.

9

A cell shield order is valid only for seven days, but may be renewed. 7 NYCRR § 305.6(c).
DOCCS must document a brief statement of the reason for the initial order and any renewal. Id.
§ 305.6(d).
However, DOCCS liberally renews orders even where there is no new misbehavior for excessive
periods. Of the records reviewed, the shortest cell shield was in effect for thirty-two days, while
the longest cell shield was in effect for three-hundred and seventy-nine days. In both these cases,
the cell shields were renewed repeatedly based on past behavior. DRNY found the same
typographical error repeated in each renewal for one participant, which underscores the
perfunctory nature of the renewals.
Use of dated information for cell shields violates the requirement that cell shields be limited in
duration, because an initial order is “valid for no more than seven days.” 7 NYCRR § 305.6(c).
As noted above, regulation 7 NYCRR § 305.6(b) requires DOCCS to document a reason or “good
cause” for ordering the cell shield, and the regulation uses examples of behavior meeting this
standard. The examples defining “good cause” in DOCCS regulations also make clear that the
reasons for imposing and renewing a cell shield must be based upon current or recent behavior
(“refuses to”, “is so disruptive”), not behavior that occurred in the past. 7 NYCRR § 305.6(b).
State regulations require “a statement as to the need for continuing the cell shield order.” 7 NYCRR
§ 305.6(d). DOCCS violated this requirement by relying on past conduct to continue the order.
Relying on past conduct renders the renewal procedure entirely superfluous and nothing more than
a rubberstamp.
Furthermore, due process requires much more. There must be an actual evaluation of whether the
order is justified at the time of renewal and there must be consideration of any new relevant
information. See Proctor v. LeClaire, 846 F.3d 597, 610-11 (2d Cir. 2017) (stating that meaningful
review requires actual evaluation of whether the continued measure is justified, including
consideration of “new relevant evidence as it becomes available”). Simply rehashing stale
information to justify a cell shield for weeks or months is a gross violation of procedural due
process.
DRNY found that DOCCS repeatedly renewed long-standing cell shield orders on four individuals
with serious mental illness, including one individual with co-occurring low intellectual
functioning, with limited documentation of ongoing safety and security concerns as required by
DOCCS’s regulations. The renewal orders were simply pro forma, lacking any meaningful
assessment of current behavior to establish “good cause” for the restriction and without any
consideration of participants’ deteriorating mental condition under extremely isolating conditions.
DOCCS failed to meet the standards for continuing the cell shield orders and violated RMHU
participants’ due process rights.

10

2. Restrictions on Out-of-Cell Programming and Therapy
FINDING 4:
DOCCS and OMH neglected and abused RMHU participants by failing to clinically assess
their therapeutic needs prior to imposing programming restrictions, despite the requirement
of the SHU Exclusion Law, and by failing to provide a safe environment.
DOCCS and OMH failed to clinically assess the needs of RMHU participants before restricting
participants from access to out-of-cell programming and treatment. The result of such restrictions
is twenty-three-hour cell confinement, as RMHU participants lose the four hours of out-of-cell
programming offered five days a week.
Under the SHU Exclusion Law, the strong presumption in favor of RMHU participants attending
programming may only be overcome with a determination, documented in writing, that a
participant’s access to out-of-cell programming or treatment “presents an unacceptable risk to the
safety of inmates or staff.” N.Y. Correction Law § 401(2)(a)(i). Such restrictions are to be rare
and “exceptional.” N.Y. Correction Law § 401(2)(a)(i). Only a mental health clinician, or the
highest ranking facility security supervisor in consultation with a mental health clinician who has
interviewed the inmate, may determine that out-of-cell programming poses an unacceptable risk
of safety to other inmates or staff. N.Y. Correction Law § 401(2)(a)(i). The law specifically
requires that the determination to restrict out-of-cell programming must “take into account the
inmate’s mental condition and any safety and security concerns.” N.Y. Correction Law §
401(2)(a)(iii). See also N.Y. Correction Law §2(21) (stating RMHUs “shall not be operated as
disciplinary housing units, and decisions about treatment and conditions of confinement shall be
made based upon a clinical assessment of the therapeutic needs of the inmate and maintenance of
adequate safety and security on the unit”).
DRNY reviewed DOCCS documentation of out-of-cell restrictions and found that programming
restrictions were uniformly imposed without accounting for the individuals’ mental health
condition as required by N.Y. Correction Law § 401(2)(a)(iii). The form entitled “Reports of
Exceptional Circumstances RMHTU Program,” which is used by DOCCS and OMH to document
these restrictions, reflects the reason for the restriction, the date imposed, the alternative therapy
to be offered “as determined by OMH,” and the signatures of the security and mental health staff
in approving the restriction. The form does not require documentation that a clinical assessment
was performed.

___________________________________________
PARTICIPANT A
___________________________________________
Participant A told OMH staff he wanted to leave the program classroom to avoid being
around people who angered him. OMH staff noted his agitation. Participant A returned
to his cell without incident. OMH clinical staff nevertheless issued a misbehavior report
for threats and disturbing the classroom, and a hearing officer imposed a one-hundred and
twenty-day SHU sanction. Then, DOCCS and OMH restricted Participant A from
11

attending all out-of-cell programming for eighteen days, relying on Participant A’s verbal
statement as justification. After the restriction ended, Participant A engaged in self-harm
and reported hopelessness. Participant A was subsequently hospitalized at CNYPC, and
CNYPC staff focused on helping him to develop coping skills and remain engaged in
therapy. Staff also encouraged Participant A to “verbally acknowledge to staff times
when he is angry and ask for a time out.” Participant A mingled with peers, attending
treatment mall programming and socializing appropriately. Participant A’s success at
CNYPC indicates that Attica RMHU’s punitive approach was not clinically justified
under N.Y. Correction Law § 401(2)(a)(i), and needlessly contributed to further
deterioration in his condition requiring inpatient hospitalization.

___________________________________________
OMH neglected the mental health needs of participants by failing to conduct clinical assessments
before placing restrictions on out-of-cell programming and treatment. When OMH omits these
assessments, OMH fails to consider the constellation of factors, including environmental stressors,
at the root of an individual’s reported mental distress. For example, by the time of the classroom
incident, Participant A had been behind a cell shield for two-hundred and thirty-seven consecutive
days. His mental condition and the extremely isolating condition of confinement were not
considered, and the out-of-cell programming restriction was imposed without heed to the
requirements of N.Y. Correction Law § 2(21) and § 401(2)(a)(iii). An informed assessment of an
individual’s therapeutic needs must include consideration of the restrictive conditions being
imposed.

___________________________________________
PARTICIPANT C
___________________________________________
Participant C has schizoaffective disorder and bipolar disorder. DOCCS restricted
Participant C from programming in 2016 after he threatened security staff. The same day
the restriction was imposed, OMH staff noted Participant C had been doing well in the
RMHU overall, but had recently “been struggling with security,” had sporadic medication
compliance, and had limited coping skills and insight. The social worker did not
determine that a restriction from programming was warranted. To the contrary, the social
worker recommended a plan to include: “Regular RMHU structure. Regular daily
rounds, 1:1 therapy as needed, psychiatric visits as scheduled. 4 hours of group will also
be given per day.” DOCCS then ordered in-cell restrictions for Participant C, in stark
contrast to OMH staff’s assessment of his therapeutic needs—including the plan to
continue programming. Participant C remained under programming restrictions for nine
days, despite complaints to a psychiatrist five days into the restriction that he was “getting
worse.” None of the psychiatrist’s notes reflect consultation with DOCCS regarding the
patient’s therapeutic needs or the programming restriction.

___________________________________________
12

Clinical assessments are integral to ensuring that conditions are appropriate in the RMHTU. N.Y.
Correction Law §§ 2(21), 401(a)(iii). Participant C is an example of how DOCCS and OMH fail
to consider an individual’s therapeutic needs. The psychiatrist should have investigated the nexus
between Participant C’s behavior, the recent difficulties Participant C was having on the unit as
noted by his social worker, and his mental health complaints, and then developed a treatment plan
to assist Participant C. The psychiatrist should have advised DOCCS about appropriate treatment
or accommodations. Instead, OMH and DOCCS did not consult despite the requirement of the
SHU Exclusion Law, leading to Participant C’s continued programming restrictions.
DOCCS and OMH have not integrated clinical assessments into decisions to preclude RMHU
participants from programming. DOCCS and OMH staff fail to engage individuals who have
complex behavioral issues and extensive psychiatric histories by not identifying and reinforcing
positive strategies that would enable them to continue to access and benefit from RMHTU
programming. When multiple deprivations are imposed at once, the individuals experience the
RMHU as punitive segregation because it is as restrictive as SHU. The combination of cell shields,
disciplinary segregation, and restrictions on programming authorized by DOCCS and OMH only
work to further participants’ isolation. This should not be happening especially because OMH
staff independently observe RMHU participants’ worsening mental health conditions. This is
abuse and neglect and is contrary to the purpose of the SHU Exclusion Law.
3. DOCCS Staff Training
FINDING 5:
DOCCS neglected RMHU participants and violated the SHU Exclusion Law by staffing the
RMHU with SHU officers and other untrained staff. DOCCS continued to neglect
individuals and violate the law by failing to correct the problem after notification by DRNY.
DOCCS failed to train officers assigned to the RMHU, violating the SHU Exclusion Law. The
SHU Exclusion Law requires that “new corrections officers, and other new department staff who
will regularly work in programs providing mental health treatment,” and “[a]ll department staff
who are transferring into a residential mental health treatment unit” receive specialized training on
mental health. N.Y. Correction Law § 401(6). Specialized training is to cover “the types and
symptoms of mental illnesses, the goals of mental health treatment, the prevention of suicide and
training in how to effectively and safely manage inmates with mental illness.” Id. The objective
of the law is preparing staff to address the special needs of individuals with serious mental illness
and thereby support the overall mission of the RMHTUs. Unlike corrections officers in the
RMHTUs, SHU officers are not required to undergo this training.
DRNY received numerous complaints from RMHU participants about officers. Many complaints
identified SHU officers assigned to Tour II and Tour III (the afternoon/early evening shift and the
late-night shift) in alleged incidents of abuse and the denial of RMHU privileges and basic needs.
For example, three participants independently alleged that one named SHU officer antagonized
the RMHU participants, falsely reported misbehavior that served as the basis for cell shields, and
denied showers and hot water on holidays. Similarly, two participants identified another SHU
officer and alleged that the officer is someone who “is assigned to SHU, but always agitating
RMHU patients” and who also falsified misbehavior reports.
13

PARTICIPANT COMMENTARIES
“I have found the programs to be helpful as,
perhaps mostly I’ve learned to have much better
control over my emotions. . . . Often, ‘security
concerns’ run counter to the beneficial or positive
intentions of the programs. Not all COs are
empathetic or sympathetic to the needs of prisoners
with serious mental health issues and, in fact, if
anything, do things which tend to aggravate the
problems of prisoners with these issues . . . .
Attica in particular is a case in point, as there
are many times when there are no RMHU
officers present and thus we have no choice but to
have to deal with regular SHU officers.”—
Participant B, 10/2015
“Officers…on the RMHU are the same officers
who work SHU.”—Participant E, 8/2016
“On the weekends and mid-night shift regular
Special Housing Unit COs work and deal with
us and are not properly trained to. . . . We are
treated like SHU inmates, and held to the strict
standards
of
SHU
inmates
and
environment.”—Participant F, 7/2016
“We are subjected to the same Attica
population/SHU staff attitude.”–Participant
G, 10/2016
“Nearly all CO and security staff do not want
the program operated because they believe because
we’re in prison we deserve to suffer. This attitude
is carried out in their daily dealings.”–
Participant H, 8/2016

Given the volume of complaints about SHU
officers, DRNY investigated the presence of
SHU officers in the unit. Complaints regarding
SHU officers working in the RMHU are
longstanding.
In December 2011, when
reviewing compliance with the settlement in
Disability Advocates Inc. v. NYS Office of Mental
Health, 02-CV-4002 (S.D.N.Y.), DRNY and
plaintiff’s co-counsel alerted DOCCS and OMH
to RMHU inmates’ reported difficulties with
SHU officers, who are not trained to work in
mental health programs. “Patients’ satisfaction
with the Attica RMHU was low compared with
the larger RMHU programs. . . . . Patients
reported more difficulties with SHU officers
assigned to the night shifts than the RMHU
officers assigned during the day, who are trained
to work with RMHU patients.”8
DRNY had recommended, “An increase in the
number of specially trained and assigned RMHU
officers is needed to cover all shifts. If that is not
possible, then further training of SHU officers
assigned to the RMHU gallery is warranted.”
DOCCS failed to address DRNY’s concern in
2011.
Following the August 2015 visit, DRNY shared
concerns about SHU staff working in the RMHU
with DOCCS by letter dated November 25, 2015.
To investigate this matter further, DRNY
requested information about the staffing of the
RMHU by SHU Officers, including the names of
officers who had received specialized mental
health training.

In response, DOCCS confirmed that SHU
officers staff the RMHU during certain shifts.
Specifically, DOCCS acknowledged that SHU
officers “conduct rounds in the housing gallery
of RMHU inmates on off shifts” and that SHU
officers cover all three shifts of the RMHU on
weekends and holidays.9 DOCCS also acknowledged that the SHU officers had not undergone
8

Letter from Nina Loewenstein, Senior Staff Attorney, Disability Advocates Inc., to Richard Brewster, Assistant
Attorney General (Dec. 5, 2011).
9
Letter from Bryan Hilton, Assistant Commissioner, DOCCS, to Elena Landriscina, Staff Attorney, DRNY (Dec. 15,
2015).
14

the specialized training, reasoning that “[t]he assigned SHU officers . . . do [] not meet the criteria
set in the SHU Exclusion Law.” Id. DOCCS has, therefore, narrowly interpreted the training
requirement to exclude officers who are primarily assigned to work in other units but also work in
the RMHU.
Contrary to DOCCS’s report that SHU officers provide coverage in the RMHU only on night
shifts, weekends, and holidays, DRNY found that SHU officers were in fact present during the
weekday and issued misbehavior reports and negative informational reports, indicating a
considerable degree of interaction with RMHU participants. DOCCS also confirmed that one
officer, although not identified as a regular SHU officer, worked in the RMHU despite not having
received training required by the SHU Exclusion Law.10 Approximately 36 percent (22 of 61) of
negative informational reports issued by corrections officers to eight participants between January
2015 and November 2015 were authored by officers who had not received the required training.11
REPORTS ISSUED BY OFFICERS
WITHOUT N .Y. CORRECTION LAW § 401(6) TRAINING
Wed., 8/5/15 7:35 PM - Misbehavior Report
Tues., 8/18/15, 5:00 PM - Negative Informational Report
Tues., 3/3/15, 11:30 AM - Negative Informational Report
Tues., 7/28/15, 10:10 AM - Negative Informational Report
Mon., 8/3/15, 8:00 AM - Negative Informational Report
Tues., 11/3/15, 11:40 AM - Negative Informational Report
Wed., 11/4/15, 11:00 AM - Negative Informational Report
Tues., 8/18/15, 5:00 PM - Negative Informational Report
Sun., 3/8/15, 10:39 PM - Misbehavior Report
Thurs., 5/28/15, 9:00 PM – Negative Informational Report
Thurs., 5/28/15, 9:00 PM - Negative Informational Report
Tues., 6/30/15, 6:18 PM – Negative Informational Report
Wed., 7/8/15, no time given - Negative Informational Report
Fri., 7/10/15, 4:25 PM – Negative Informational Report
Fri., 7/24/15, 5:50 PM - Negative Informational Report
Fri., 7/31/15, 5:30 PM – Negative Informational Report
Mon., 8/3/15, 4:30 PM – Misbehavior Report
Mon., 8/3/15, 5:40 PM - Negative Informational Report
Mon., 8/3/15, 6:30 PM – Negative Informational Report
Tues., 8/4/15, 6:00 PM - Negative Informational Report
Wed., 8/19/15, 5:30 PM – Misbehavior Report
Wed., 9/2/15, 5:30 PM - Negative Informational Report
Fri., 9/4/15, 5:35 PM - Negative Informational Report
Wed., 9/9/15, 5:30 PM – Negative Informational Report
10

Letter from Bryan Hilton, Assistant Commissioner, DOCCS, to Elena Landriscina, Staff Attorney, DRNY (Dec.
15, 2015).
11
This is a conservative estimate. DRNY compared the names of officers who authored negative informational reports
against a list of RMHTU-trained officers and SHU officers. If a report was issued by a corrections officer who did
not appear on either list, DRNY counted the officer as belonging to the trained category. There were nine such reports.
15

Tues., 9/9/15, 5:30 PM – Negative Informational Report
Thurs., 10/15/15, 11PM-7AM shift – Negative Informational Report

In August 2016, in response to DRNY’s multiple communications on this issue, DOCCS reported
that it acted on DRNY’s concerns by making “[e]very effort to include Special Housing Officers,
who do not fall under the SHU Exclusion Law, into the [June 2016 RMHTU] training.” For SHU
officers scheduled to be on vacation during the training, DOCCS offered overtime pay to
incentivize officers to attend the training. 12 Therefore, SHU officers were invited—but not
required—to attend the most recent training.
DRNY finds that DOCCS violated the SHU Exclusion Law’s training provisions in 2015 by
having SHU officers and other untrained officers work with individuals in the RMHU. While
DOCCS considered DRNY’s concerns for the 2016 training, DOCCS’s efforts do not go far
enough. All officers who regularly work with RMHTU participants must be trained under the law.
The training ensures that staff’s interactions with RMHTU participants are consistently informed
by a therapeutic model. Staff learn to recognize signs of mental illness, the importance of mental
health treatment, and strategies towards positively reinforcing participants’ progress and
rehabilitation. RMHTU participants are a high-needs population, as evidenced by the fact that
during a six-week period from September 2016 to mid-October 2016, “five of the ten RMHU
participants had an RCTP admission.” 13 In fact, admissions from the RMHU to the RCTP
increased dramatically, from sixteen admissions in 2015 to forty admissions in 2016. By not
requiring all officers to attend the RMHTU training, DOCCS has not complied with the statutory
training mandate. The lack of this critical officer training adversely impacts the effectiveness of
the unit and undermines participants’ success in the RMHU. DOCCS neglects RMHU participants
by not having adequate numbers of trained staff.

4. Confidential Mental Health Treatment
FINDING 6:
DOCCS and OMH neglected RMHU participants by providing “alternative therapy” cellside, including in some cases when participants were behind cell shields, thereby denying
RMHU participants appropriate treatment.
DOCCS and OMH fail to provide effective treatment to RMHU participants who are restricted
from out-of-cell programming in two instances: first, when OMH delivers mental health services
cell-side only, and second, when cell-side services are offered with a cell shield in place. Such
practices violate the SHU Exclusion Law. N.Y. Correction Law § 401(2)(a)(i). They also
constitute neglect.

12

Letter from Bryan Hilton, Assistant Commissioner, DOCCS, to Elena Landriscina, Staff Attorney, DRNY (Aug.
18, 2016).
13
Letter from Lori Schatzel, Director, Central New York Psychiatric Center, to Elena Landriscina, Staff Attorney,
DRNY (Dec. 12, 2016).
16

OMH must provide “alternative mental health treatment and/or other therapeutic programming,”
to participants who are restricted from attending out-of-cell programming and treatment. N.Y.
Correction Law § 401(2)(a)(i). “Alternative treatment” often consists of cell-study materials and
cell-side discussions with OMH staff. However, those subject to out-of-cell restrictions are likely
to be the people most in need of therapeutic interventions, including private one-on-one sessions,
to address problematic behavior or a deteriorating mental state contributing to behavioral
problems.
In eleven of the fifteen cases reviewed where out-of-cell restrictions were imposed, DOCCS and
OMH noted alternative therapy. Frequently, however, the only type of alternative therapy
provided was “cell side interviews,” which are conversations between OMH staff and the
individual at the cell front. Flanked by other cells, all cell-side discussions can be overheard by
other RMHU participants. This interaction lacks any confidentiality and is not conducive to
delivering effective mental health services. In fact, eleven individuals complained about
difficulties communicating with mental health staff while in the RMHU housing area; in particular,
RMHU participants said that confidential discussions with mental health staff were not possible
due to the presence of corrections officers. Three individuals said that due to the presence of
officers nearby, they were unwilling to discuss their needs and concerns with mental health staff
cell-side.
Cell-side interviews do not provide an opportunity for therapeutic services required by N.Y.
Correction Law § 401(2)(a)(i). DOCCS and OMH cannot rely exclusively on cell-side
conversations to satisfy the statutory requirement of providing “alternative therapy” to individuals
with serious mental illness who are confined to their cells. DOCCS must augment the alternative
treatment to include private, one-on-one sessions with mental health staff. Private sessions with
mental health staff ensure that a person subject to out-of-cell programming restrictions does not
remain in twenty-three-hour isolation as in the SHU, thus reducing the risk that isolation will cause
psychiatric deterioration. Providing the private sessions is key to fulfilling the mandate that the
RMHU “shall not be operated as disciplinary housing units.” N.Y. Correction Law § 2(21).
Most disturbingly, DRNY found that OMH offered cell-side interviews to RMHU participants
who were under a cell shield order issued by DOCCS. Effective treatment is not possible when
individuals are forced to publically communicate their mental health needs to OMH staff through
a cell shield. Yet, DOCCS and OMH required RMHU participants to receive part of their
therapeutic services through a thick Plexiglas covering that impedes, if not makes impossible, any
meaningful communication. Through these practices, DOCCS and OMH fail to carry out an
appropriate treatment plan, neglecting the serious needs of individuals with mental illness in the
RMHU.

17

5. Location of RMHU
FINDING 7:
DOCCS does not provide an adequate therapeutic setting for RMHU participants.
The current RMHU housing location does not serve participants in the program.14 Not only have
disciplinary SHU operations bled into the RMHU, as discussed at length in this report, but DOCCS
also concedes that administration of the RMHU program is impacted by limitations of the physical
plant.
DOCCS made the decision to staff the RMHU with SHU officers because the RMHU’s proximity
to the SHU galleries on the same floor allows for this staffing efficiency. See DOCCS Facility
Operations Manual # 3.404: Special Housing Unit (2nd & 3rd Floors) Reception Building (9/27/16).
Yet, this efficiency has greatly diminished the therapeutic environment, as shown by consistent
complaints since 2011 about SHU officers and recent examples of discipline and restrictions by
officers who have not been trained as required by N.Y. Correction Law § 401(6).
DOCCS acknowledges that it operates the Attica RMHU differently from other RMHTUs. In
some respects, DOCCS treats the program as though it is SHU: DOCCS’s written facility
operations policy identifies RMHU housing as the north gallery on the second floor of SHU. See
DOCCS Facility Operations Manual # 3.404: Special Housing Unit (2nd & 3rd Floors) Reception
Building (9/27/16). Additionally, below is an example of DOCCS’s written response to a
grievance filed by an RMHU participant. In this example, DOCCS informs the RMHU participant
that rules applicable to the SHU also apply to RMHU participants by virtue of their location:
DOCCS Response to Participant Grievance

RMHU participants said that they do not receive typical RMHTU incentives, such as showers,
phone calls, and recreation, despite earning them through positive progression in the program.
DRNY found that the age and design of Attica’s facilities means that the RMHU program operates
differently, including in the provision of incentives. DOCCS has reportedly made efforts to
14

It is important to note that this housing unit was never intended to support individuals who are participating in a
robust mental health program. The history of litigation involving Attica and this particular housing unit make this
clear. Prior to Eng v. Goord, this housing gallery was part of the SHU, where prisoners with serious mental illness
were isolated, along with others, with no access to programming. The Eng litigation resulted in the establishment of
the Special Treatment Program (STP), which provided two hours of programming to Attica SHU inmates. The STP
program was closed upon the effective date of the SHU Exclusion Law in July 2011, because it did not comply with
the law’s requirements. After the DAI litigation, DOCCS elected to locate the RMHU participants within this same
housing unit, and they have remained there following implementation of the SHU Exclusion Law.
18

standardize incentives across all RMHTUs, but the Attica RMHU is not designed like newer
facilities at Marcy and Five Points, where the other RMHUs are located. For example, DOCCS
acknowledged that the new facilities at Marcy and Five Points have phone systems built into the
housing and program units, making it easier for DOCCS to provide phone calls when a participant
earns that incentive. Phone calls are deeply important to the Attica RMHU population, and
participants who spent time at the RMHUs at Marcy and Five Points compared their experiences
with Attica. They explained that at Attica, staff gave participants fewer opportunities to make
phone calls. If family did not answer the phone, the call was still “counted” by Attica staff,
whereas Marcy and Five Points staff would assist an individual in re-attempting the call at a later
time. DRNY did not independently confirm how phone call attempts are tracked, but based on
DOCCS’s response to its query on incentives, it is clear that a different practice at Attica has
emerged due at least in part to structural limitations of the facility.
Additionally, the Attica RMHU is not a standalone unit, as it is in Marcy or Five Points. Thus,
new admissions or incidents occurring within other parts of the Attica SHU can impact and
interrupt the movement of RMHU participants. Attica RMHU participants thereby experience
greater disruptions in programming than Marcy or Five Points participants. RMHU participants
complained that they were not being afforded the full four hours of out-of-cell programming,
because any movement in the nearby SHU results in termination of movement of any RMHU
participants.
For all these reasons, the Attica RMHU housing location is not equipped to support the therapeutic
program.

19

D.

RECOMMENDATIONS
1. Cell Shield Orders

Cell shields should be presumptively excluded from use in the RMHTUs, as fundamentally
contrary to the SHU Exclusion Law’s intended purpose that individuals with serious mental illness
shall receive therapy and support, not isolation and punishing conditions of confinement. DOCCS
and OMH must adopt standards and procedures, including amendments to 7 NYCRR § 305.6,
setting forth strict criteria that must be met to overcome the presumption against cell shields in
the mental health programs. The standards and procedures should incorporate the SHU Exclusion
Law’s mandate to ensure that “settings . . . are appropriate to [participants’] clinical needs” and,
more specifically, that “treatment and conditions of confinement shall be made based upon a
clinical assessment of the therapeutic needs of the inmate” in addition to safety considerations.
N.Y. Correction Law §§ 2(21), 401(1). Because the RMHTUs are the joint responsibility of
DOCCS and OMH, both agencies have a duty to ensure that conditions in the RMHTUs are
therapeutic and consistent with safety and security. N.Y. Correction Law § 401(1). OMH’s
deference to DOCCS is causing psychiatric harm to its patients, and does not fulfill the legal
mandate of joint operations.
2. Restrictions on out-of-cell programming and treatment
DOCCS and OMH must ensure that any restrictions on out-of-cell programming and treatment
meet the “unacceptable risk” standard set forth in N.Y. Correction Law § 401(2)(a)(i). DOCCS
and OMH must ensure that the restriction is based on “a clinical assessment of the therapeutic
needs of the inmate” and “take into account the inmate’s mental condition,” in addition to safety
and security considerations. N.Y. Correction Law §§ 2(21), 401(2)(a)(iii). OMH must assess an
individual’s mental condition and therapeutic needs prior to the imposition of the restriction and
throughout the duration of the restriction and stop deferring to DOCCS for decision making.
Assessments should be documented in writing in both the security record and the individual’s
clinical record. Such writing should include documentation of the discussion between the mental
health clinician and security staff, and detail how the restriction will be implemented to serve the
therapeutic needs of the participant.
3. Required training for all DOCCS corrections staff who regularly cover the RMHU
DOCCS and OMH must meet the training mandate of N.Y. Correction Law § 401(6) for all staff
who work in RMHU housing or programming, including staff working during off-shifts, holidays,
and weekends.
4. Mental Health Treatment
DOCCS and OMH must ensure that individuals who are subject to restrictions on out-of-cell
programming and treatment receive effective alternative therapy. N.Y. Correction Law §
401(2)(a)(i). This means DOCCS and OMH must facilitate an individual’s confidential sessions
with mental health staff during the period of restrictions. When an individual’s behavior results
in a restriction on group programming, there should be a presumption that the individual needs
therapeutic support from mental health staff.

20

Additionally, to ensure effective alternative programming for individuals who are restricted from
out-of-cell programming and treatment, OMH staff must take into account whether the individual
is subject to a cell shield order, and DOCCS must accommodate those individuals. OMH should
document if the individual is subject to a cell shield, and what related accommodations are made
by staff to allow for effective alternative programming and treatment. The conditions and
accommodations should be incorporated into the “exceptional circumstances” documentation kept
by DOCCS staff.
5. Location of the RMHU
DOCCS and OMH must move RMHU housing to a new location that is equipped to support the
overall program, including its incentive structure, and provide the necessary therapeutic
environment. DOCCS and OMH should promptly identify alternative locations for the Attica
RMHU, including relocating the program to another DOCCS facility, to ensure that the RMHU
program is implemented in a manner that is fully consistent across the system as required by the
SHU Exclusion Law.
E.

CONCLUSION

DRNY found numerous instances of abuse and neglect in the operation of the Attica RMHU and
multiple violations of the SHU Exclusion Law, specifically New York Correction Law §§ 2(21),
401(1), 401(2), and 401(6). A comprehensive framework was established by the SHU Exclusion
Law to create a program that serves individuals with serious mental illness and protects against
harm from isolating conditions of confinement. DRNY’s findings demonstrate that there are
numerous deficiencies in the day-to-day implementation of these protections. As a result, the
RMHU at Attica Correctional Facility fails to provide a therapeutic alternative to solitary
confinement. Additionally, there are due process concerns with the manner in which cell shield
orders are implemented and renewed, resulting in unjustified orders of excessive duration.
DOCCS and OMH must jointly act to ensure a therapeutic environment for participants in the
RMHU, free from harm of psychiatric deterioration. OMH must fulfill its obligations and cease
deferring to DOCCS on matters where there is psychiatric risk to patients. DOCCS and OMH
must immediately act to correct conditions resulting from the failure to implement appropriate
regulations, standards, and policies consistent with the SHU Exclusion Law and in accordance
with due process. DOCCS and OMH must act on the recommendations for corrective action,
including the relocation of the Attica RMHU to ensure the program meets its objectives and
improves services to incarcerated individuals with serious mental illness.

21

APPENDIX A
Definitions of Abuse and Neglect
The Protection and Advocacy for Individuals with Mental Illness (PAIMI) Act defines “abuse” as:
any act or failure to act by an employee of a facility rendering care or treatment which was
performed, or which was failed to be performed, knowingly, recklessly, or intentionally,
and which caused, or may have caused, injury or death to a[n] individual with mental
illness, and includes acts such as—
(A) the rape or sexual assault of a[n] individual with mental illness;
(B) the striking of a[n] individual with mental illness;
(C) the use of excessive force when placing a[n] individual with mental illness in bodily
restraints; and
(D) the use of bodily or chemical restraints on a[n] individual with mental illness which is
not in compliance with Federal and State laws and regulations.
The PAIMI Act defines “neglect” as
a negligent act or omission by any individual responsible for providing services in a
facility rendering care or treatment which caused or may have caused injury or death to
a[n] individual with mental illness or which placed a[n] individual with mental illness at
risk of injury or death, and includes an act or omission such as the failure to establish or
carry out an appropriate individual program plan or treatment plan for a[n] individual
with mental illness, the failure to provide adequate nutrition, clothing, or health care to
a[n] individual with mental illness, or the failure to provide a safe environment for a[n]
individual with mental illness, including the failure to maintain adequate numbers of
appropriately trained staff.
42 U.S.C. § 10802(1), (5).
Regulations implementing the PAIMI Act define the term “abuse” as:
any act or failure to act by an employee of a facility rendering care or treatment which was
performed, or which was failed to be performed, knowingly, recklessly, or intentionally,
and which caused, or may have caused, injury or death to an individual with mental illness,
and includes but is not limited to acts such as: rape or sexual assault; striking; the use of
excessive force when placing an individual with mental illness in bodily restraints; the use
of bodily or chemical restraints which is not in compliance with Federal and State laws and
regulations; verbal, nonverbal, mental and emotional harassment; and any other practice
which is likely to cause immediate physical or psychological harm or result in long-term
harm if such practices continue.

“Neglect” is defined as:
a negligent act or omission by an individual responsible for providing services in a
facility rendering care or treatment which caused or may have caused injury or death to
an individual with mental illness or which placed an individual with mental illness at risk
of injury or death, and includes, but is not limited to, acts or omissions such as failure to:
establish or carry out an appropriate individual program or treatment plan (including a
discharge plan); provide adequate nutrition, clothing, or health care; and the failure to
provide a safe environment which also includes failure to maintain adequate numbers of
appropriately trained staff.
42 C.F.R. § 51.2.

APPENDIX B
OMH Letter Response to DRNY May 2017 Freedom of Information Law request

Admissions from Attica RMHU to Residential Crisis Treatment Program (RCTP)
Month/Year
Jan-2015
Jan-2015
Jan-2015
Mar-2015
Mar-2015
Apr-2015
Apr-2015
May-2015
May-2015
May-2015
Jun-2015
Jul-2015
Jul-2015
Sep-2015
Nov-2015
Dec-2015
Total admissions

OBS Location
Infirmary
RCTP OBS
RCTP OBS
RCTP OBS
RCTP OBS
Infirmary
Infirmary
RCTP OBS
RCTP OBS
RCTP OBS
Infirmary
Infirmary
RCTP OBS
Infirmary
RCTP OBS
Infirmary
16

Month/Year
Jan-2016
Jan-2016
Jan-2016
Feb-2016
Feb-2016
Mar-2016
Mar-2016
Apr-2016
May-2016
May-2016
May-2016
May-2016
Jun-2016
Jun-2016
Jun-2016
Jul-2016
Jul-2016
Jul-2016
Jul-2016
Aug-2016
Aug-2016
Aug-2016
Aug-2016
Sep-2016
Sep-2016
Sep-2016
Sep-2016
Sep-2016
Oct-2016
Oct-2016
Oct-2016
Oct-2016
Nov-2016
Nov-2016
Nov-2016
Nov-2016
Dec-2016
Dec-2016
Dec-2016
Dec-2016
Total admissions

OBS Location
Infirmary
RCTP OBS
RCTP OBS
Infirmary
RCTP OBS
RCTP OBS
Infirmary
RCTP OBS
Infirmary
Overflow
Overflow
Overflow
Infirmary
Overflow
RCTP OBS
Overflow
Overflow
RCTP OBS
Overflow
Overflow
Overflow
Overflow
Overflow
Overflow
Infirmary
Overflow
Infirmary
Overflow
Overflow
Infirmary
Infirmary
Infirmary
RCTP OBS
Overflow
RCTP OBS
Infirmary
RCTP OBS
RCTP OBS
RCTP OBS
Overflow
40

Source: OMH Response to DRNY May 2017 Freedom of Information Law request

 

 

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