“[a]s a result of the evolution of the sentencing structure and focus on reentry the historical separation of the department of correctional services and the division of parole is no longer warranted. In view of the commonality of purpose governing the fundamental missions of both agencies, a single new state agency should be created to oversee the combined responsibilities of both and, in effect, provide for a seamless network for the care, custody, treatment and supervision of a person, from the day a sentence of state imprisonment commences, until the day such person is discharged from supervision in the community. This not only will enhance public safety by achieving better outcomes for the greatest number of individuals being released from prison, but also will allow for greater efficiencies and the elimination of duplicative responsibilities, thus resulting in significant savings for the state.”

Id. at section 1. As part of this responsibility, the Department seeks to determine proper means with which to manage inmates as they transition to community supervision, which includes post-release supervision (“PRS”). See Correction Law section 2(31).

Pursuant to New York’s Sexual Assault Reform Act (“SARA”), certain felony sex offenders, as well as those who have been designated Level 3 sex offenders under the Sex Offender Registration Act, Correction Law Article 6-c, are subject to a mandatory condition of community supervision that prevents them from being within 1,000 feet of school grounds, as that term is defined by section 220.00 of the Penal Law, or in any facility primarily used for the care or treatment of persons under 18 years of age when such persons are present. See Executive Law section 259-c(14). To effectuate SARA, the Department must make certain that all offenders subject to its provisions while on community supervision, (see Correction Law section 201[2]; Penal Law section 70.45[5][a]), are neither released to nor reside in residences that are not SARA-compliant. See generally People v. Diack, 24 N.Y.3d 674 (2015); Williams v. Department of Corrections and Community Supervision, 136 A.D.3d 147 (1st Dept. 2016); People ex rel. Johnson v. Superintendent, Fishkill Correctional Facility, 47 Misc.3d 984 (Sup. Ct., Dutchess Co., 2015).

Because some offenders have experienced difficulty in identifying, developing and securing SARA-compliant residences within the communities to which they intend to return, both the Board of Parole and Department, either through the Board’s imposition of a special condition pursuant to section 70.45(3) of the Penal Law or a Commissioner’s designation pursuant to Correction Law section 73(10), have required that they reside within one of the Department’s residential treatment facilities (“RTF”) until a SARA-compliant residence within the community can be developed. Section 73(3) of the Correction Law requires the establishment of programs directed toward the rehabilitation and reintegration of persons transitioning through RTF status. The Department is resolved to provide such services while at the same time affording assistance to offenders in their efforts to find more permanent residences that comply with the requirements of Executive Law section 259-c(14).

Toward these ends, the Department has a group of facilities to serve as RTFs. The RTFs are situated through the State to provide service areas for geographic regions. These tend to be larger-size facilities, with personnel and resources which the smaller facilities customarily do not have. Deciding which of the RTFs is best suited to serve as an offender’s residence involves consideration of the RTF’s proximity to an offender’s self-described home area, available beds, available programming, adequate staffing for the RTF programs and work crews that only RTF residents can be a part of, and finally, the locations of the Parole Officers to whom the offender’s community supervision, (e.g. PRS), is assigned.

With the use of RTFs to provide offenders with SARA-complaint residences while they attempt to secure more permanent SARA-compliant residences for the duration of their PRS, the Department has recognized that some offenders’ have needs that cannot be addressed in the most appropriate manner at one of the existing RTFs. In this vein, it must be noted that not every person on community supervision for whom a RTF serves as a residence is subject to SARA. For example, there have been instances where for medical reasons an offender has not been released to the community or transferred to the programs of a RTF, but instead has remained within a correctional facility.

Recently, it has been made clear that when the constraints of SARA require the imposition of a special condition under Penal Law section 70.45(3) or a designation under Correction Law section 73(10), the offender must be transferred to the RTF. See People ex rel. Green v. Superintendent, Sullivan Correctional Facility, 137 A.D.3d 56 (3d Dept. 2016). Given the inability of some offenders to secure more permanent SARA-compliant residences in the community while serving their PRS, coupled with the broad spectrum of needs and placement concerns associated with these offenders, the Department’s ability to comply with Executive Law section 259-c(14) necessitates additional correctional facilities being designated to serve as residential treatment facilities. Designating the facilities, or potion thereof, as residential treatment facilities is necessary to assure compliance with SARA, meeting offenders’ needs while on PRS and public safety.

(c) Green Haven Correctional Facility shall be classified as a maximum security correctional facility, to be used for the following functions:

(1) general confinement facility for males 21 years of age or older; provided, however, that males between the ages of 16 and 21 may be placed therein for general confinement purposes in accordance with Part 110 of this Chapter; [and]

(2) detention center for males 16 years of age or older[.]; and

(3) residential treatment facility.

Subdivision (d) of section 100.100 of Part 100 of this Chapter is hereby amended to read as follows:

(d) There shall be on the grounds of the institution a maximum security compound to enclose the Walsh Regional Medical Unit. Such regional medical unit shall also function as a residential treatment facility.

Subdivision (c) of section 100.109 of Part 100 of this Chapter is hereby amended to read as follows:

(c) Wende Correctional Facility shall be classified as a maximum security facility, to be used for the following functions:

(1) general confinement facility; [and]

(2) detention center[.];and

(3) residential treatment facility in that portion of the facility functioning as the regional medical unit.

Statutory Authority: Correction Law section 112 gives the Commissioner superintendence, management and control of the correctional facilities in the Department and all matters related to the government thereof, as well as the management and control of all persons released on community supervision and all matters related to such persons’ effective reentry into the community. Pursuant to Correction Law section 112, the Commissioner is authorized to make rules and regulations to carry-out these statutory responsibilities. With respect to each of the Department’s facilities, section 70 of the Correction Law requires that through rule making, the Commissioner designate the function of each facility.

Legislative Objectives: To designate three additional facilities, or units therein, to serve as residential treatment facilities so that the Department can address the medical and mental health needs of those offenders who may need to reside in a residential treatment facility setting for a period of time while on community supervision.

Needs and Benefits: The Department’s need to adhere to the Sexual Assault Reform Act, “SARA”, Executive Law section 259-c(14), when releasing offenders to and supervising them on community supervision, has necessitated its use of those facilities currently designated as residential treatment facilities to serve as SARA-compliant residences for certain offenders until a more permanent SARA-compliant residence in the community can be developed. In addition, some offenders not subject to SARA have been unable to develop suitable residences within the community that has occasioned their placement in a residential treatment facility. Both populations have presented needs, in particular medical and mental health needs, for which the current residential treatment facilities are not best suited. Through this rulemaking, the Department is expanding those facilities that can also function as residential treatment facilities so they can properly address the needs of the residents therein, as well as the management and control of all persons released on community supervision and all matters related to such persons’ effective reentry into the community.

Costs: (a) There are no additional costs to the Department or State. This proposed rulemaking imposes no costs on any other State or local agency.

(b) As the proposed rulemaking does not apply to private parties, no costs are imposed on private parties.

(c) This cost analysis is based on Department’s need to properly designate existing facilities to serve as residential treatment facilities so that the limited number of offenders who are already in residential treatment facility status, as well as those who may assume that status sometime in the future, can reside in a residential setting best suited to address their particular needs.

Local Government Mandates: This rulemaking imposes no program, service, duty or responsibility on any county, city, town, village, school district, or other special district. It applies only to correctional facilities and their designation as residential treatment facilities.

Paperwork: This rulemaking will not add any new reporting requirements, including forms or other paperwork. The forms and other paperwork associates with the Department’s use of its residential treatment facilities already exists.

Duplication: There is no overlap or conflict with any other legal requirements of the State of federal government.

Alternatives: There are no alternatives. The facilities, or portions thereof, being designated to serve as residential treatment facilities through this rulemaking, have been identified by the Department as the facilities best suited to provide the appropriate level of medical and mental health services needed by those offenders for whom a residential treatment facility must serve as an interim residence.

Federal Standards: There are no federal standards that apply to the proposed rulemaking.

Compliance Schedule: Compliance with the proposed rulemaking is expected upon its emergency adoption.

A Regulatory Flexibility Analysis for Small Business and Local Government is not being submitted with this notice, for the proposed rule changes will have no adverse impact upon small businesses and local governments, nor do the rule changes impose any reporting, record keeping or other compliance requirements upon small businesses and local governments. Small businesses and local governments have no role in the Parole Board’s parole release decision-making function. The proposed rule making will only affect the Parole Board’s decision-making practices for inmates confined in State correctional facilities.

A Rural Area Flexibility Analysis is not being submitted with this notice, for the proposed rules will have no adverse impact upon rural areas, nor do the proposed rules impose any reporting, record keeping or other compliance requirements upon rural areas. The proposed rules only affect the designation of certain correctional facilities to serve as residential treatment facilities.

A Job Impact Statement is not being submitted with this notice, for the proposed rules will have no adverse impact upon jobs or employment opportunities, nor do the proposed rules impose any reporting, record keeping or other compliance requirements upon employers. The proposed rules only affect the designation of certain correctional facilities to serve as residential treatment facilities.