Testimony on Requiring an Annual Report Regarding the Health of Inmates in City Correctional Facilities

March 3, 2015

The New York Civil Liberties Union respectfully submits the following testimony regarding the City Council’s consideration of Int. 440, which would require annual reporting on the health of inmates in city correctional facilities.

With 50,000 members and supporters, the New York Civil Liberties Union (NYCLU) is the foremost defender of civil liberties and civil rights in New York State. Our mission is to defend and promote the fundamental principles and values embodied in the Constitution, New York laws, and international human rights law, on behalf of all New Yorkers, including those incarcerated in jails and prisons. The NYCLU is an outspoken advocate for evidence-based corrections practices that improve public safety and respect fundamental human dignity.

We support the City Council’s efforts to bring much-needed oversight to the delivery of both medical and mental health care in city jails. Substandard health conditions for incarcerated people in New York City have persisted for far too long. Just last June, the Council held an oversight hearing on violence and the provision of mental health and medical services in city jails, where council members, experts, advocates, and other stakeholders raised serious concerns about the adequacy of health care services for individuals incarcerated in our jails These concerns include the following major barriers to the provision of fundamentally adequate health care services: (1) the rising number of individuals with mental health conditions in city jails; (2) the willful neglect of the City’s contracted health care provider; (3) the excessive and punitive use of force by correction officers that is often used against individuals who are suffering from a lack of adequate mental health treatment; (4) training and qualifications of custody staff, and; (5) the conditions of the facilities on Rikers Island itself.

The data reported under Int. 440, with the amendments proposed below, will be a major step forward in addressing these barriers. First and foremost, it will permit the City to better assess the number of individuals detained at Rikers who suffer from mental health or medical conditions so serious that they should never be incarcerated in the first instance, and supports the laudable goals of the Mayor’s “Action Plan” that calls for diverting many individuals from incarceration to a more appropriate therapeutic setting. Second, the data will permit a long overdue comprehensive assessment of medical and mental health care at Rikers and can be used to inform sweeping improvements in the quality and delivery of that care. Below, we discuss some of these barriers in more detail, and then provide our recommendations for amending Int. 440 to make it as effective as possible in addressing and overcoming these barriers.

I. Barriers to Adequate Health Care & Reform Recommendations

a) Rising Numbers of People with Mental Health Conditions Incarcerated at Rikers and Need for Diversion from Incarceration
Deinstitutionalization and the closing of state psychiatric hospitals, the rise of managed care, the NYPD’s focus on “broken windows” and enforcement of quality of life offenses, and systemic failures to fund community-based mental health services have contributed to the incarceration of thousands of people with mental illness in New York City.² This growing population on Rikers Island taxes existing systems and contributes to disruptions in health care provision for prisoners.

The overall New York City jail population has decreased since 2001, but the proportion of people being treated for mental illness has risen sharply, from twenty-seven percent in 2007 to nearly forty percent today.³ These illnesses range in nature from depression and adjustment disorders to schizophrenia and bipolar disorder, and often co-occur with substance abuse issues.⁴ Furthermore, many individuals enter the jail with medical needs; one national study indicated that individuals in state jails were “31 percent more likely to have asthma, 55 percent more prone to have diabetes, and 90 percent more likely to have suffered a heart attack,” than the non-incarcerated population.⁵ These factors clearly pose a challenge for the DOC, DOHMH, and privately contracted workers whose job it is to provide “prompt and adequate access to all health care services,” as outlined by the New York City Board of Correction, the agency that establishes and ensures compliance with jail minimum standards.⁶

One of the most impactful things the City can do to improve the level of care for New Yorkers in jail is to reduce the jail population by identifying and diverting individuals with medical and mental health needs so serious they should not be in a jail setting at all.⁷ Given the high numbers of individuals who need care, it is clear that those with the most serious medical needs should instead be placed in a therapeutic setting where their needs can be easily met. Without system-wide changes aimed at reducing the population of incarcerated New Yorkers (the majority of whom are pre-trial detainees and people of color)⁸, including a focus on diverting people with serious medical needs into more appropriate settings, challenges to providing adequate care will persist. Equally as important, city jails must comply with basic health care standards for the individuals who remain incarcerated. Jail healthcare policy and practice should achieve the community standard of care for all who remain, including rigorous monitoring and screening that can identify and transfer out people who develop serious medical or mental health issues after incarceration.

Currently, thousands of New York City residents — who have lived in and will return to our communities — are being jailed in harmful conditions. Without timely, competent, and consistent care for those diagnosed with and at risk for medical or mental illness, and without robust data to identify points of diversion, cycles of violence and incarceration will continue and place our communities at further risk for harm.⁹

b) Harmful Conditions of Confinement
The conditions of confinement for individuals in New York City jails hinder, and even worsen prisoners’ mental and physical health. Among the worst aspects of these conditions are the well-documented over-reliance on force by Correction staff (discussed later in this testimony) and the use of solitary confinement to punish people for breaking jail rules.

The damaging effects of solitary confinement on an individual’s mental health are well documented.10 A recent study of New York City jails confirms a strong link between self-harm and solitary confinement.¹¹ For healthy adults, the impact of solitary confinement can be devastating even after a short period of time; but the risk is especially acute for adolescents, individuals with mental illness or disabilities, and those with serious health conditions. Both the DOC and DOHMH have acknowledged the limited utility of solitary confinement in improving an individual’s behavior, and have taken significant steps to eliminate its use with adolescents and people with serious mental or physical disabilities or conditions; they have also taken steps to limit its use with adults, which we applaud.^{12 13} Now is the time for rigorous oversight to ensure that these new reforms to solitary confinement are a true break with the past and the first step in comprehensive reform of all segregation practices throughout Rikers.

c) Rising Violence and a Culture of Brutality
The culture of brutality that exists on Rikers Island places inmates at even greater risk for mental and physical harm. The U.S. Department of Justice last August exposed one small segment of this culture by highlighting the devastating ways in which adolescents were subject to excessive force by correction officers. The report found that “while adolescents made up only about 6% of the average daily population at Rikers, they were involved in a disproportionate 21% of all incidents involving use of force and/or serious injuries.”¹⁴

This pattern of brutality against adolescents is no different for individuals with mental illness, who bear the brunt of correction officer abuse leading to serious injuries often requiring hospitalization, according to a New York Times investigation.¹⁵ These examples are part of a larger trend: In 2014, incidents of force by guards were at their highest in more than a decade.¹⁶ In these instances, New Yorkers most in need of care and support have been denied their basic rights by the very institutions entrusted to house them. This again underscores the need for diversion of those with the highest needs and most serious medical and mental health conditions out of jail and into therapeutic housing, where licensed medical professionals and behavioral specialists can best help. It also demonstrates the need for Correction staff to receive specialized training focused on, for example, adolescent development, identifying symptoms of psychiatric illness, and conflict de-escalation techniques best suited to vulnerable populations that remain.

The DOC Commissioner has acknowledged that these recent increases in violence perpetuated by both inmates and correction staff are “clearly unacceptable, and reversing them is [his] top priority.”¹⁷ To this end, Int. 440 is one tool the City Council can utilize to maintain oversight over whether quality medical and mental health services are provided to individuals at Rikers and whether staff is receiving the appropriate training. In addition, we recommend the Council use its oversight power to identify barriers to reporting violence and disciplining Correction staff. The culture of brutality must be met head-on with transparency and accountability.

d) Failure to Meet City and State Minimum Standards
The New York State Commission of Correction’s (SCOC) recent investigation into the death of Bradley Ballard illustrates the level of neglect and indifference to basic human rights characteristic of health care service provision in New York City’s jails. The SCOC determined that “the medical and mental health care provided…was so incompetent and inadequate as to shock the conscience.”¹⁸ For six days, Mr. Ballard was locked in his Rikers Island cell and denied access to life-saving care and basic services, like prescribed diabetes medication, psychiatric care, showers, and exercise. He was found unresponsive in his cell, and his death was ruled a homicide by the New York City Medical Examiner.¹⁹ SCOC determined that the conditions leading up to Mr. Ballard’s death ran counter to “New York State Correction Law, NYS Minimum Standards and Regulations for Management of County Jails and Penitentiaries, and Ballard’s civil rights.”²⁰ The poor conditions surrounding Mr. Ballard’s death also violated many of the New York City Board of Correction’s minimum standards.²¹ These findings shed harsh light on the glaring disconnect between jail standards in theory and practice.²²

The SCOC cites the “compounded failures” of the DOC and its contracted healthcare provider, Corizon Correctional Care, as the reason for Mr. Ballard’s death.²³ There have been widespread allegations of neglect against Corizon (across the country, Corizon has been sued 660 times for malpractice over the last five years). ²⁴ We think the City should have serious reservations about contracting with any for-profit company to provide medical and mental health services to incarcerated people. The City must ensure that the provider abide by stringent mental health and medical standards, with built-in accountability and oversight mechanisms. Int. 440 is a step toward assessing that compliance and then making the necessary changes in the delivery and quality of care.

II. Legislative Recommendations: Need for Data to Guide Evidence-Based Reforms

Public access to accurate data is a critical first step to reforming our jails. Indeed, as we have seen with so many other issues, good data can be the foundation for broad policy reform. ²⁵ The NYCLU applauds the City Council’s efforts to bring transparency and accountability to medical and mental health care practices in New York City jails. Int. 440 will allow the City to lead the country with respect to such reporting.

This bill is directly connected to furthering the goal of diversion from incarceration. Identifying the medical and mental health needs of individuals entering and already in city jails can lead to better identification of the corresponding the levels of care needed to achieve the goal of diversion from incarceration, rehabilitation, and reintegration into the community. Indeed, diversion can have the additional effect of lowering the jail population to more accurately gauge and improve adequacy of care for those who remain. Mr. Ballard’s case is unfortunately just one example of why it is so imperative that DOC’s and Corizon’s data management and record-keeping is scrutinized.

The Council and the public must better understand how health data is collected, maintained and utilized in our jails. This includes both records that pertain to individual care and data used to drive continuous quality and performance improvements within the facility. We recommend DOC’s public reporting requirements be unified and streamlined into one report, and that de-identified data pertaining to all aspects of conditions of confinement (from healthcare to education to complaints against guards) be reported regularly in a machine-readable format.

Subject to the legislative recommendations outlined below, the NYCLU believes that Int. 440 will help lay a foundation for reforms to access to health care and mental health care in New York City jails. If successful, this initiative could be a model for the rest of the country. This data should be thoroughly analyzed and then used both to enhance the health care delivery system at Rikers and to guide the direction of future reforms. Based on what we already know anecdotally about the dismal quality of care at Rikers and what the comprehensive data shows, the Council should be prepared to use its budgetary power to ensure adequate resources are allocated to undertake such corrective measures, then exercise its oversight authority to ensure that those resources are being used appropriately and with proper assessment.

We propose the following recommendations to clarify and expand the reporting requirements at issue today.

a) Shared Reporting Responsibilities

First, provision of and referral to health services is a responsibility shared by the Department of Correction, the Department of Health and Mental Hygiene, the Health and Hospitals Corporation, and often contractually with an outside provider, like Corizon Correctional Care. The involvement of these multiple entities and providers creates a risk that responsibility for data collection and reporting will be too diffuse to effectively achieve the goals of Int. 440. Therefore, we recommend that the bill be amended to clarify that any agency involved in the delivery of medical or mental health care in the City’s jails be required to collect and report all the data necessary for compliance with the requirements of Int. 440, and that one agency should be identified as having final responsibility for compiling and publicizing the final report.  

b) Definitions

Second, we recommend that definitions be added in order to clarify the types of information that will be reported under Int. 440. The reporting requirements currently required under section one (for example, “intake” and “patient safety”) are very broad. We urge the City Council to consult with correctional, medical, and mental health professionals to develop appropriate definitions and patient privacy protections in order to clarify the reports that would be produced in compliance with Int. 440.

c) Relation to BOC Minimum Standards of Care

We also recommend that the reports required under Int. 440 be aligned with the minimum standards of care outlined by the Board of Correction.²⁶ Alignment with these standards would also capture the minimum standards set by the SCOC.²⁷ Reporting on the care that is delivered in a way that allows for easy comparison to what is required under the minimum standards will provide an important opportunity to identify deficiencies and gaps in service provision, and specific areas for improvement. Specifically, BOC’s minimum standards address the following categories, which should be reported on under Int. 440:

• Sick calls
• Mental health services
• Emergency services
• Infirmaries
• Outpatient specialty clinics, including referrals
• Medical isolation
• Care requiring close medical supervision
• Hospital care
• Intake screenings
• Pharmaceutical services, including psychotropic medication
• Ongoing treatment
• Dental services
• Vision and eye care
• Pregnancy and child care
• Diagnostic services
• Surgical and anesthesia services
• Prosthetic devices
• Alcohol and drug treatment
• Prisoner refusals of care
• Inmate deaths

Under each category, the following should be reported:

• Number of prisoners requesting care
• Number of requests for care
• Number of prisoners receiving care
• Average length of time between a request and a call
• Median length of time between a request and a call
• Duration of treatment (if ongoing)
• Availability of services (e.g., number of beds in the infirmary, types of treatment programs and number of openings in a treatment program)

d) Training of Staff on Medical and Mental Health Care

Appropriate training is vital to ensure that quality medical and mental health services are provided to individuals in New York City Jails. We recommend that Int. 440 require reporting on training of correctional staff on health care. Any reporting on training should include:

A list of trainings for custody staff related to medical and mental health care offered since the previous reporting cycle, with brief descriptions and the length (hours) of each training; and
Number of staff who attended each training broken down by rank and title..

e) Report Key Demographic Information

Identifying populations of individuals receiving types of care is of utmost importance to identifying discrepancies and deficiencies, developing targeted responses and policies, including identification of who should not be held in New York City jails at all. In order to fully understand the delivery of care in New York City jails, we recommend that any data involving the number of inmates requesting or receiving care be disaggregated by important demographics. At minimum, data should be disaggregated by:

• Age
• Gender
• Race
• Borough of primary residence
• Mental health diagnosis upon arrival
• Mental health diagnosis during incarceration
• Charge type
• Detention length
• Facility in which the inmate is currently housed, as of the last day of the reporting period

f) Policy and Fiscal Reporting

In addition to quarterly data reporting, we urge the Council to help improve transparency surrounding polices on medical and mental health care. To this end, Int. 440 should include a requirement that the DOC post on its website any policies, memoranda of understanding, or contracts relating to the delivery of medical and mental health care to individuals under its custody. We recommend that any change to an existing policy, MOU, or contract be updated online within 15 days. Additionally, Int. 440 should direct the DOC to post quarterly fiscal reports relating to the delivery of medical and mental health services.

g) Quality Assurance, and Monitoring and Evaluation

The Board of Correction permits variances from its minimum standards and currently posts these variances on its website.²⁸ Additionally, the minimum standards also require regular reporting, monitoring, and quality assurance relating to any medical or mental health services,²⁹ We request that such reports, be they created by the DOC, BOC, DOHMH, a contracted organization, or other party, be posted and available to the public.

III. Additional Reporting

The New York Civil Liberties Union applauds the City Council’s support for greater transparency, including the passage of Int. 292 in 2014 and the support for Int. 643, which has been introduced and requires reporting on individuals waiting for placement in segregated housing. We ask that the Council consider additional legislation to further enhance transparency. We urge the Council to require reporting in additional areas, such as the population awaiting trial and bail, the population in segregated housing other than punitive segregation, and continuity of care through connection to post-release community-based services.³⁰ Additionally, statistics on the general jail population are necessary to give context for all other reporting.

IV. Conclusion

We thank the Council for providing this opportunity to share our recommendations for reforming the quality of medical and mental health care in city jails. As we have tragically seen in the past year, this is an issue with serious human costs. Achieving greater transparency is a first step toward diverting individuals with serious needs away from incarceration, and toward improving conditions for prisoners at city facilities; policymakers and the public must have access to information on the level of care and oversight afforded New Yorkers in our jails. We urge the City Council to maintain rigorous oversight of Rikers Island and look forward to working together for continued reform.

Footnotes
1 This testimony was researched and co-written by Becca Cadoff and Deandra Khan.
2  Mayor Bill De Blasio, City of New York, “Mayor’s Task Force on Behavioral Health and the Criminal Justice System, 2014. Available at http://www1.nyc.gov/assets/criminaljustice/downloads/pdf/annual-report-complete.pdf
3  “Mentally Ill Offenders in the Criminal Justice System: An Analysis and Prescription.” The Sentencing Project, Jan. 2002. Available at http://www.sentencingproject.org/doc/publications/sl_mentallyilloffenders.pdf
4 Joseph Ponte, NYC department of correction commissioner, testimony, New York City Council Transcript of the Minutes of the Committee on Mental Health, Developmental Disability, Alcoholism, Substance Abuse and Disability Services Jointly with the Committee on Fire and Criminal Justice Services and the Committee on Health, p. 19. 12 June 2014.
5 Ibid., Commissioner of NYC health department Mary Basset, testimony, p. 32-33.
6 Amanda Gardner, “Many in U.S. Prisons Lack Good Health Care,” U.S. News and World Report Health 16 Jan. 2009. Available at http://health.usnews.com/health-news/managing-your-healthcare/articles/2009/01/16/many-in-usprisons-lack-good-health-care
7 New York City Board of Correction. Health Care Minimum Standards. §3-02(a). The BOC’s Mental Health Care Minimum Standards, §2-04(a), further specifies that, “Adequate mental health care is to be provided to inmates in an environment which facilitates care and treatment, provides for maximum observation, reduces the risk of suicide, and is minimally stressful.”
8 The Mayor’s Task Force on Behavioral Health and the Criminal Justice System is one solution that has been lauded by many, including the DOC Commissioner, for mapping out a plan to divert the mentally ill from the criminal justice system when they do not need to be there. See New York City Council Transcript of the Minutes of the Committee on Mental Health, Developmental Disability, Alcoholism, Substance Abuse and Disability Services Jointly with the Committee on Fire and Criminal Justice Services and the Committee on Health, 12 June 2014.
9 New York City Independent Budget Office, “Letter to Councilmember Melissa Mark-Viverito” 30 Sept. 2011. Available at http://www.ibo.nyc.ny.us/iboreports/pretrialdetainneltrsept2011.pdf.
10 Multiple studies have demonstrated the link between mental illness and recidivism. See: Jacques Baillargeon, et al, “Psychiatric Disorders and Repeat Incarcerations: The Revolving Prison Door,” American Journal of Psychiatry 166(1), Jan 2009 (finding that inmates with major psychiatric disorders are more likely than those without to have had previous incarcerations).
11 See Stuart Grassian, “Psychiatric Effects of Solitary Confinement,” Washington University Journal of Law & Policy 325, 336 (2006) (noting impulse control and self-harm are psychiatric symptoms associated with solitary confinement); Craig Haney, “Mental Health Issues in Long-Term Solitary and ‘Supermax’ Confinement,” Crime & Delinquency 49 (2003) 124, 131 (noting the association of suicide and self-mutilation with isolated housing).
12 Fatos Kaba et al., “Solitary Confinement and Risk of Self-Harm Among Jail Inmates,” American Journal of Public Health 104 (2014) 442 (explaining that “[i]nmates punished by solitary confinement were approximately 6.9 times as likely to commit acts of self-harm” even after researchers controlled for other factors including length of jail stay, serious mental illness, age, and race/ethnicity).
13 40 Rules of the City of New York (“RCNY”) § 1-16.
14 Dr. Homer Venters, asistant commissioner, bureau of correctional health services New York City department of health and mental hygiene, testimony, New York State Assembly Committee on Correction with the Committee on Mental Health Regarding Mental Illness in Correctional Settings 13 Nov. 2014. Available at: http://www.nyc.gov/html/doh/downloads/pdf/public/testi/testi20141113.pdf
15 U.S. Department of Justice, CRIPA Investigation of the New York City Department of Correction Jails on Rikers Island, 4 Aug. 2014, p. 8.
16 Michael Winerip & Michael Schwirtz, “Rikers: Where Mental Illness Meets Brutality in Jail.” New York Times, 14 July 2014. Available at: http://www.nytimes.com/2014/07/14/nyregion/rikers-study-finds-prisoners-injured-byemployees.html?_r=3
17 Michael Winerip & Michael Schwirtz. “Even As Many Eyes Watch, Brutality at Rikers Island Persists.” New York Times, 21 Feb. 2015. Available at: http://www.nytimes.com/2015/02/22/nyregion/even-as-many-eyes-watchbrutality-at-rikers-island-persists.html
18 Joseph Ponte, NYC department of correction commissioner, testimony, New York City Council Transcript of the Minutes of the Committee on Mental Health, Developmental Disability, Alcoholism, Substance Abuse and Disability Services Jointly with the Committee on Fire and Criminal Justice Services and the Committee on Health, p. 19. 12 June 2014.
19 New York State Commission of Correction. Final Report in the Matter of the Death of Bradley Ballard, p. 2. (December 16, 2014).
20 Id.
21 Id. p. 3
22 See, e.g New York City Board of Correction. Health Care Minimum Standards, §3-06(a). Available at http://www.nyc.gov/html/boc/downloads/pdf/healthcare_standards.pdf . Last visited 2 Mar. 2015.
23 Id.
24 Id.
25 Corizon has been sued 660 times for malpractice over the last five years and yet generates an estimated $1.4 billion every year. See Jesse Lava, Meet the Company Making $1.4 Billion a Year off Sick Prisoners, American Civil Liberties Union (October 8, 2013), available at: https://www.aclu.org/blog/prisoners-rights/meet-company-making-14-billion-year-sick-prisoners
26 Data collection and analysis has been the starting point for successful reforms to solitary confinement in Washington, Colorado, Illinois, Maine, and New York City.
27 See, generally, New York City Board of Correction. Mental Health Minimum Standards. Available at
http://www.nyc.gov/html/boc/downloads/pdf/mental_health_minimum_standards.pdf. Last visited 27 Feb. 2015.
See also, New York City Board of Correction. Health Care Minimum Standards. Available at
http://www.nyc.gov/html/boc/downloads/pdf/healthcare_standards.pdf . Last visited 27 Feb. 2015.
28 N.Y. Comp. Codes R. & Regs. Tit. 8, § 7010.1-2 (2015). Available at
https://govt.westlaw.com/nycrr/Document/I4fb24d54cd1711dda432a117e6e0f345?viewType=FullText&origination
Context=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default). Last visited 2 Mar. 2015.
29 New York City Board of Correction, Variances Granted by the Board of Correction. Available at
http://www.nyc.gov/html/boc/html/rules/variances.shtml. Last visited 27 Feb. 2015.
30 New York City Board of Correction. Mental Health Minimum Standards, §2-08(d). Available at
http://www.nyc.gov/html/boc/downloads/pdf/mental_health_minimum_standards.pdf. Last visited 27 Feb. 2015.
See also, New York City Board of Correction. Health Care Minimum Standards, §3-09. Available at
http://www.nyc.gov/html/boc/downloads/pdf/healthcare_standards.pdf . Last visited 27 Feb. 2015.
31 Regarding continuity of care, the City and Rikers Island are under obligations to engage in appropriate discharge planning under the class action lawsuit, Brad H. v. City of New York. Successful discharge planning can only prevent additional recidivism and is consonant with the larger goal of diversion. Advocates involved in this case may provide appropriate Brad H. overlays to Into 440. See Urban Justice Center, Brad H. v. City of New York, available at http://mhp.urbanjustice.org/mhp-bradH.v.cityofnewyork