N.Y. Comp. Codes R. & Regs. tit. 7 § 220.4
Current through Register Vol. 46, No. 45, November 2, 2024
Section 220.4 - Incarcerated Individual Eligibility(a) Preconditions. An Incarcerated Individual must meet the following preconditions to be eligible to participate in the FRP: (1) Time. (i) New Incarcerated Individual: The Incarcerated Individual has been in the department's custody for at least six months, excluding initial reception, and is at the time of application a resident of a facility that offers the program.(ii) Transferred Incarcerated Individual: An Incarcerated Individual who has successfully participated in the FRP at one facility and is transferred to another facility where the program is offered may apply immediately for participation. An incarcerated individual who has not participated at his or her previous facility must wait 30 days to apply for the program. This will give the incarcerated individual time to have an assessment at the new facility.(iii) If an incarcerated individual is within 90 days to an approved release date, an application will not be accepted. If an incarcerated individual has already been approved by central office and received a date prior to the 90-day mark, the superintendent has the discretion to approve or deny the visit.(2) Adjustment. The Incarcerated Individual has exhibited a pattern of good institutional adjustment and has not had any major, chronic, severe, or excessive disciplinary problems . Any incarcerated individual serving disciplinary sanctions, to include loss of privileges, that run concurrently with a scheduled FRP visit, will have that visit cancelled. Upon completion of disciplinary sanctions, the visit may be rescheduled. Satisfactory behavior must be maintained throughout the duration of the application /appeal. Any major disciplinary problems incurred during the application/appeal process will result in a denial or termination of the application/appeal. The incarcerated individual will become ineligible to reapply for 60 days from the date the major disciplinary sanction is completed. If the incarcerated individual has a chronic disciplinary problem, a new application may be submitted 180 days from the date the chronic disciplinary sanction is completed. If the incarcerated individual has a Tier II severe disciplinary problem, a new application may be submitted 180 days after the sanction is completed; if it is a Tier III severe disciplinary problem, an application may be submitted 1 year after the sanction is completed. Reapplication is contingent upon the incarcerated individual meeting all criteria noted in the application process. If the criteria are met, the application must be sent to central office for a full-cycle review.
(i) Major disciplinary problem. Shall be defined as any Tier II or III disciplinary disposition in the 60 days prior to the application, resulting in confinement to cell, room, or dorm continuously, on certain days or during certain hours, for 15 days or more, or any loss of good time. Reapplication can be made 60 days from the confinement release date . Satisfactory behavior must be maintained throughout the duration of application and/or appeal. Any major disciplinary problems incurred during the application/appeal process will result in denial or termination of the application/appeal. The incarcerated individual will become ineligible to reapply for 60 days, as defined above.(ii) Chronic disciplinary problem. Shall be defined as three or more Tier II or III disciplinary dispositions in the 180 days prior to the application, or an accumulation of 45 days or more keeplock/SHU in the 180 days prior to the application. Reapplication may be made 180 days from the confinement release date.(iii) Severe disciplinary problem. Shall be defined as a conviction for a federal or state crime while incarcerated or any Tier II or III disciplinary report for the following rule violations regardless of the length of the sanction:(d) use or possession of drugs or alcohol ;(e) unauthorized group activities;(g) assault on incarcerated individual;(p) escape paraphernalia; and/or(q) unhygienic act. A conviction or disciplinary finding for any of these severe infractions will render the incarcerated individual ineligible to participate in the program as follows:
Tier II infractions will result in a 180-day ineligibility sanction, Tier III infractions will result in a 1-year ineligibility sanction. The sanction will begin after any disciplinary confinement is served. Applications will not be accepted until sanction is completed. A federal or state crime conviction, while incarcerated, will require immediate suspension and full-cycle review for any possible future participation.
(iv) Excessive disciplinary problems. Shall be defined as having 20 percent or more of the past 36 months prior to the application spent in disciplinary confinement. If, at the time of the application, the incarcerated individual has been incarcerated less than 36 months, the standard will be 20 percent of that time of incarceration. The incarcerated individual may reapply for FRP consideration 24 months after completion of any disciplinary sanction, provided all other eligibility requirements are met.(3) Program participation. The Incarcerated Individual applicant must have participated in or pursued required programs as identified on his or her program/earned eligibility plan. Program/earned eligibility plan refusals, negative removals, or regressions make an applicant ineligible until that need is addressed. Any disciplinary behavior which has been exhibited in the incarcerated individual's social, criminal, or institutional history will be factored into the option of participating in therapeutic services. Formal therapeutic programs sanctioned by DOCCS, such as the Alcohol and Substance Abuse Treatment Program (ASAT), Comprehensive Alcohol and Substance Abuse Treatment (CASAT), Driving While Intoxicated (DWI), or other approved specialized substance abuse treatment programs and the Aggression Replacement Training (ART) Program for aggression/violence, are the standards that must be met. Additionally, approved therapeutic self-help services such as Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) may be considered. Attendance at volunteer led self-help groups is the preferred option and will be evaluated as such. Participation in self-help services is voluntary and is seen as a supplement to, and not a substitute for, a formalized substance abuse treatment need. I ncarcerated individual's who have actively pursued their plan yet who have not completed programs and satisfied their needs, will be evaluated according to their entire record. However, dependent on his or her criminal, disciplinary, and programming history, active participation or actual completion of a specific therapeutic or treatment program may be required to satisfy this precondition. When directed to complete a program, incarcerated individuals must wait until that program is completed prior to reapplication to FRP. Satisfactory completion of any program does not imply FRP approval.(b) Disqualifying conditions. An Incarcerated Individual is not eligible to participate in the FRP if any of the following conditions exists : (1) the Incarcerated Individual is eligible for the temporary release program (unless th at incarcerated individual's application for temporary release has been denied);(2) the Incarcerated Individual has a higher security designation than permitted at the program site;(3) the Incarcerated Individual is assigned to a special housing unit (SHU) for disciplinary reasons or is in administrative segregation, or in a mental health unit (MHU) with concurrent SHU time ( Behavioral Health Unit (BHU), Therapeutic Behavioral Unit (TBU), or Regional Mental Health Unit (RMHU));(4) the incarcerated individual has not been in general population for the required period of time;(5) the incarcerated individual has not been in current facility for the required period of time;(6) the application is submitted prior to meeting the conditions set in previous denial;(7) an Incarcerated Individual participant found in violation of the FRP regulations/standards will have his or her eligibility suspended. Tier II violations impose a 180-day suspension; Tier III violations impose a 1-year suspension. A new application must be reviewed and approved by central office prior to the incarcerated individual's future FRP participation. Prior approval does not guarantee readmission;(8) the incarcerated individual or requested visitor is serving any suspension, restriction, or modification to visitation related to section 201.4 of this title. This includes non-contact visit sanctions;(9) if it is determined that a visitor commits or attempts to commit to introduce the following contraband into a correctional facility, that visitor may be denied by central office, thereby making the visitor ineligible for participation in the program for a minimum of 2 years. Once the visitor completes the 2-year period of ineligibility, a FRP application can be submitted by the incarcerated individual with the visitor's name, if the incarcerated individual meets the basic eligibility standards. (a) any electronic device that can be used/modified for contact outside of the department/correctional facility (e.g., I-pad, laptop, cell phones, electronic charging devices, pagers, etc.)(b) drugs or intoxicants;(c) weapons, including explosives and/or incendiary material/devices;(f) any item determined to be escape paraphernalia. Note: If any event in 1-8 above occurs, the incarcerated individual is considered ineligible at the facility level. The application should not be processed. The FRP ORC will notify the incarcerated individual, via an ineligible facility form, as to the reason for the ineligibility and any applicable corrective action and/or reapply date. A copy of this notice will be placed in the incarcerated individual's facility FRP file.
In the event of number 9, a-f, the case must be forwarded to central office for review and decision by the deputy commissioner for program services or designee. If it is determined that the incarcerated individual conspired to have contraband smuggled into the FRP site, the incarcerated individual may be denied participation in the program for a minimum of two years. Once the incarcerated individual completes the two-year period of ineligibility, an FRP application can be submitted, if the incarcerated individual meets the basic eligibility standards.
(c) Special review/ Incarcerated Individual .(1) A special review will be conducted by central office staff that will include consideration of the specifics of the crime, the age of the Incarcerated Individual at the time of the offense, progress in programs, custodial adjustment, victim impact, and the entire case record to determine eligibility if an Incarcerated Individual : (i) has been designated a central monitoring case (CMC);(ii) has any outstanding warrants, show cause order (e.g., Bureau of Immigration & Customs Enforcement);(iii) has been convicted of a heinous or unusual crime;(iv) has been convicted of a sex offense, including a sexually motivated felony, or any other offense where behavior of a sexual nature occurred during the commission of the crime;(v) has been convicted of a violent crime against an elderly person, family member, or a child;(vi) has been convicted of escape or an escape attempt;(vii) has a history of domestic violence or Order of Protection;(viii) is a returned parole violator;(ix) is in or has a history of protective custody;(x) Requested visitor is a minor step-child;(xi) prior participation has been suspended/terminated;(xii) is in a special program such as the Assessment and Program Participation Unit (APPU) or assigned to a mental health unit;(a) review must include consideration of evaluation by psychiatric staff;(xiii) is diagnosed as having a communicable disease.(2) Such special review shall be conducted only for those incarcerated individuals who ha ve been otherwise approved in accordance with the process set forth in section 220.6 of this Part.(3) Facility health services staff will notify the facility FRP ORC of any Incarcerated Individual approved for FRP who is diagnosed as having a communicable disease that may pose a health risk to a visitor. A FRP visit will not be denied solely on the basis of the HIV status of an incarcerated individual /applicant.N.Y. Comp. Codes R. & Regs. Tit. 7 § 220.4
Amended and Renumbered from 220.2 New York State Register August 4, 2021/Volume XLIII, Issue 31, eff. 8/4/2021