Title 9 Part 179

This Subpart applies to all residents of Office of Children and Family Services (OCFS) secure centers.

Residents of OCFS secure centers are expected to follow rules of conduct that have been designed to support the habilitation process. Disciplinary action, when applied reasonably and with fairness, promotes the security and protects the health and safety of all persons within an OCFS facility. It is also a positive factor in the morale of residents and staff in the facility.

Disciplinary action shall be taken only in such measures and degree as necessary to:

Disciplinary action must be administered in a fair, impartial and expeditious manner and must be consistent.

Commission of any Penal Law offense is prohibited and may be referred to law enforcement agencies for prosecution through the courts in addition to sanctions imposed through resident discipline.

Each behavior listed in Subpart 179-4 of this Part is classified as a level I, II, or III rule. If a behavior has more than one designation, it means that it could be classified at different levels, depending upon the specific circumstances. The offenses of conspiracy, attempt and accessory shall be punishable to the same degree as the actual offense.

A disciplinary hearing provided to a resident by the facility director, or a designee as herein provided, for violations of all level III rules or certain level II rules as determined by the disciplinary review officer.

An employee designated by the facility director to collect, review and cause an appropriate investigation to be made of resident rule violation reports, and take action on the report, or return the report to the resident's living unit to be addressed by unit staff, or refer the report to a FDP.

The person designated to preside at a FDP.

An employee chosen by the resident and approved by the facility director to assist the resident throughout the FDP. The RA is not an advocate for the resident. The RA's role is to speak with the resident charged, to explain the charge(s) to the resident, interview witnesses requested by the resident and report the results of his or her efforts to the resident. The RA may assist the resident in obtaining documentary evidence or written statements which may be necessary. The RA shall be present at the FDP.

Substantial evidence shall mean such evidence that a reasonable person would accept as adequate to support a conclusion.

Rule violations shall be addressed in one of three levels:

Dispositions for violations of level III rules shall be made by a FDP.

Level I rule violations shall be addressed on the resident's unit. The reporting employee shall list level I rule violations in the unit log and issue a level I rule violation slip, noting the action taken. Prior to issuing any privilege restriction, the reasons for the restriction shall be explained to the resident and he/she shall have the opportunity to explain the behavior leading to the restriction. Level I rule violation slips shall be retained in the resident's case file.

Level II and level III rule violations shall be reported as follows:

The facility director of each secure facility shall designate one or more employees at salary grade level 18 or above as a DRO. The number of DROs shall depend on the needs of the facility. The DRO assigned to review a rule violation report shall not have been involved in the incident under review.

Such adjournment shall be in writing and include the reason. The adjournment documentation shall be included in the written record of the FDP. When a reasonable adjournment occurs, the FDP shall commence within seven days of the resident's availability. The date of availability shall be documented in the written record of the FDP. The resident shall be given written notice of the disposition within seven days thereafter.

At any time during which a penalty, other than loss of good time, imposed pursuant to a FDP is in effect, the facility director may reduce the penalty.

The purpose of this Subpart is to set forth regulations and procedures governing the granting of good behavior allowances.

This Subpart applies only to juvenile offenders as defined in subdivision 18 of section 10.00 of the Penal Law who are committed to the Division for Youth.

Discretionary reductions in the term of sentence based upon good behavior and efficient and willing performance of duties assigned or progress and achievement in an assigned treatment program. Also referred to as good time.

The maximum allowance for good behavior may not exceed in the aggregate one third of the term imposed by the court.

Between the time a decision has been made with respect to good behavior allowance and the time the resident would be eligible for parole consideration or conditional or other release, the award of any good behavior allowance that has been granted shall be stayed and such allowance shall be suspended as follows:

The purpose of the Division for Youth's temporary release programs is to afford eligible and suitable residents the opportunity to enhance rehabilitative efforts through selected, unescorted, off-grounds activities and programs.

These regulations apply only to juvenile offenders and juvenile offenders afforded youthful offender status who are in the custody of the Division for Youth.

Temporary release is defined as the privilege of leaving the grounds of a Division for Youth residential facility on an unescorted basis for a carefully regulated period of time for a specific approved purpose.

A leave of absence is a privilege granted to a resident, who need not be an eligible resident, to leave the facility for the period of time necessary to:

A community services program is a program under which an eligible resident may be granted the privilege of leaving the premises of a residential facility for a period not exceeding 14 hours in any day for the purpose of participating in religious services, volunteer work or athletic events, or for any matter necessary to the furtherance of any such purposes.

A furlough program is a program under which an eligible resident may be granted the privilege of leaving a facility for a period not exceeding seven days for the purpose of seeking employment, maintaining family ties, solving family problems, seeking post-release housing, attending a short-term educational or vocational training program, or for any matter necessary to the furtherance of any such purposes.

Industrial training leave is a privilege granted to an eligible resident to leave a facility for a period not exceeding 14 hours in any day for the purpose of participating in an industrial training program, or for any matter necessary to the furtherance of any such purpose.

Educational leave is a privilege granted an eligible resident to leave a facility for a period not exceeding 14 hours in any day for the purpose of education or vocational training, or for any matter necessary to the furtherance of any such purposes.

A work release program is a program under which an eligible resident may be granted the privilege of leaving a facility for a period not exceeding 14 hours in any day for the purpose of on-the-job training or employment, or for any matter necessary to the furtherance of any such purposes.

The selection of applicants for participation in the division's temporary release program involves a two-phase process. The first phase - eligibility - involves the application of basic threshold criteria to determine whether a resident is eligible to participate in the program. The second phase suitability - involves the application of general criteria to determine whether an eligible resident is suitable to participate in the program.

The applicant's file shall be reviewed to determine whether the resident is eligible to participate in a temporary release program. Eligibility criteria include:

The resident has never been convicted of any escape offenses or of absconding from temporary release or furlough as defined in the Penal Law.

The resident has not, in the eight weeks prior to application, been found to have committed a serious or very serious misbehavior by a facility director's proceeding.

The resident has not been found, in a disciplinary proceeding, to have absconded from a temporary release program.

The resident's purpose for requesting temporary release is consistent with the purposes set out in section 179-3.4 of this Subpart for the type of temporary release program for which he is applying.

The resident has served the following time in system:

These time requirements shall not apply to a request for a leave of absence.

The applicant's legal history and facility record shall be reviewed and evaluated to determine whether permitting the resident to participate in a temporary release program is consistent with the safety of the community and the welfare of the applicant.

The applicant's entire legal history shall be reviewed and evaluated, including any probation presentence reports, intake sheets, court transcripts, juvenile delinquency probation reports and placement orders, paying specific attention to:

The applicant's entire facility record for his current juvenile offender confinement also shall be reviewed and evaluated, paying specific attention to the youth's physical and mental health and his behavior and performance in program, on escorted and/or unescorted trips or in a previous temporary release program. All available documents shall be reviewed, including but not limited to:

A resident may apply for a temporary release program by filling out the Application to Temporary Release Committee form, indicating the type of temporary release for which he wishes to apply and his reasons for applying.

Upon receiving an Application to Temporary Release Committee form, the interviewer shall review the resident's file to determine whether the resident is eligible to participate in the temporary release program, using the criteria set out in section 179-3.6(a) of this Subpart. All subsequent steps shall be recorded on the appropriate forms.

The interviewer also shall evaluate the applicant for suitability, using the criteria set out in section 179-3.6(b) of this Subpart. The interviewer shall indicate the results of his evaluation on the Application Evaluation form. The interviewer shall preliminarily screen for offenses involving the use or threatened use of a weapon, infliction of a serious physical injury upon another, or a sexual offense involving forcible compulsion. Serious physical injury means physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ. If the applicant has committed one or more of these offenses, the interviewer shall indicate such by checking the statutory review box on the Application Evaluation form for the special attention of the director of temporary release programs and the director of the division.

The interviewer shall notify the resident, via the Notification to Resident form, of the results of the preliminary review. If the resident is ineligible to participate in the temporary release program, he for ineligibility include, but are not limited to: statutory ineligibility, outstanding warrants, a serious disciplinary action, escape or absconding, attempted escape or absconding, or improper temporary release purpose. If the resident is eligible to participate in the temporary release program, he shall be notified of the time of his interview.

After evaluating the application for suitability, the interviewer shall meet with the resident to explain the evaluation process and the preliminary results. Any dispute about information used in evaluating the application shall be noted by the interviewer. If there is no indication in the files that the information is inaccurate, the resident should be asked to provide some evidence that the information in the file is wrong. However, if it appears that the information in the file may be incorrect and it also appears that the resident might have some difficulty in obtaining the correct information, the interviewer should attempt to verify the information.

If the applicant is eligible to participate in the temporary release program, an interview for the resident with the temporary release committee will be scheduled. The chairperson shall notify the resident of the meeting via the Notification to Resident form. Copies of the notification shall be provided to all appropriate parties.

When examining the file, the committee shall carefully review the placing offense(s). In the case of a crime of violence, attention should be paid to the resident's participation in the crime, whether serious physical injury resulted, and any use of a weapon.

After meeting with the resident, the temporary release committee will either recommend approval of or disapprove the application for temporary release. The committee's decision shall be made at a meeting of the full committee. In making its decision, the committee should center its attention on the interview, documents in the facility record, Application Evaluation form and specific recommendations of staff. The committee shall also take into account any other factors which it finds significant.

In general, the applicant's ability to profit from participation in temporary release should be weighed against whatever risk his release would pose to the community or the program. A resident should be denied temporary release if his presence in the community would pose an unwarranted threat to his own or public safety, or if there is substantial evidence to indicate the resident cannot successfully complete his requested temporary release program.

If the committee decides not to approve an application, the resident shall be so notified and provided with a statement of the reasons. No further action shall be taken regarding the application. Should the case warrant, the resident may be advised not to reapply for the program requested because he is not suitable for such a program. Disapproval of an application by the temporary release committee shall be appealable pursuant to section 179-3.9 of this Subpart.

The facility director shall review the resident's temporary release file and decide whether to endorse the resident's application. If the facility director does not endorse the application, he shall state his reason(s) in writing and a copy of this statement shall be given to the resident and included in the resident's temporary release file. If the facility director endorses the application, he shall so indicate by signing the Central Office Referral Memorandum form.

All applications recommended for approval by the temporary release committee shall be forwarded to the director of temporary release programs in Central Office for review, regardless of whether the facility director endorsed the application. The resident's temporary release file, along with any other pertinent information, including the facility director's statement if he does not endorse the application, shall be sent to the director of temporary release programs.

Disapproval of an application by the director of the division cannot be appealed.

This section contains the criteria for participation in the following short-term temporary release programs: leaves of absence, community services programs and furlough programs.

Any resident may apply for a leave of absence at any time, provided his purpose for applying fits within the purposes for a leave of absence set out in section 179-3.4(a) of this Subpart.

One deathbed visit may be granted for each terminally ill family member specified in section 179-3.4(a) of this Subpart. If the resident previously has been granted an escorted visit to said family member, an additional leave of absence will not be considered.

Any resident may apply for medical or dental leave at any time, provided the purposes for applying correspond with the purposes for such leave set out in section 179-3.4(a) of this Subpart.

If exigent circumstances exist, the resident may apply directly to the facility director for approval of a leave of absence request. The facility director alone shall decide whether the resident's application should be approved. A written statement of the facility director's reasons for approving or disapproving a leave of absence under exigent circumstances shall be placed in the resident's facility file. The facility director's decision regarding the application must be reviewed by the director of temporary release programs and the director of the division pursuant to the procedures required by section 179-3.8 of this Subpart.

The resident will be allowed to leave the facility only for the length of time necessary to accomplish the purposes of the leave.

A resident may apply to participate in a community services program, provided his purpose for applying fits within the purposes for such program set out in section 179-3.4(b) of this Subpart. An eligible applicant may leave the facility for a period not exceeding 14 hours in any day.

An eligible resident may be granted the privilege of participating in a community services program for the purpose of attending services by a recognized religion only when the services are not available within the facility.

An eligible resident who is physically qualified may be granted the privilege of participating in an officially sponsored athletic event.

An eligible resident may be granted the privilege of leaving the premises of a facility for a period not exceeding seven days for a furlough program, provided his purpose for applying corresponds with the purposes set out in paragraph (2) of this subdivision. A request for an out-of-state furlough will not be approved.

A furlough may be granted for one or more of the following purposes only:

A resident may not take:

The furlough year starts on the day a resident begins his first furlough program and ends 365/366 days later. If the timing of the application does not conform to these requirements, the application may be deferred from immediate consideration by the temporary release committee.

A resident may be required to bear the expenses related to his furlough. The facility director shall make such a determination.

A work release program is a continuous temporary release program under which an eligible and approved resident may be granted the privilege of leaving the premises of a facility designated for such purposes by the director of the division, for a period not exceeding 14 hours in any day, for the purpose of on-the-job training or employment, or for any matter necessary to the furtherance of any such purposes.

Educational leave is a continuous temporary release program under which an eligible and approved resident may be granted the privilege of leaving the premises of a facility, for a period not exceeding 14 hours in any day, for the purpose of educational or vocational training, or for any matter necessary to the furtherance of any such purposes. In order for a resident to be approved to participate in an educational release program, he must have submitted an application for admission to a program of study at an accredited college, university or vocational training program which has agreed to maintain a record of his class attendance. In the case of a resident who must be transferred to another facility in order to participate in an educational leave program, the resident must receive confirmation of his admission to a college, university or vocational training program prior to his transfer.

A community services program is a continuous temporary release program under which an eligible and approved resident may be granted the privilege of leaving the premises of a facility, for a period not exceeding 14 hours in any day, for the purpose of participating in a volunteer or community services work project.

Industrial training leave is a continuous temporary release program under which an eligible and approved resident may be granted the privilege of leaving the premises of a facility on a daily basis, for a period not exceeding 14 hours in any day, for the purpose of participating in an industrial training leave program under which the resident shall be assigned to the supervision of a Federal, State, county or local government employee who is not a division employee and permitted to assist such government employee in performing his job assignments.

As a rule, a resident participating in a temporary release program shall assume certain costs associated with his participation in a temporary release program as hereinafter described, over and above the cost of maintaining the resident in a Division for Youth facility. Funds may be drawn from the resident's personal account for these purposes. However, under certain circumstances, the division may use funds from the petty cash account to assume the costs of certain expenses or advance the resident funds for certain costs from the facility's temporary release schedule for funds. Funds may be issued in the amounts designated by the director of the division for the purposes delineated in subdivisions (c) through (g) of this section.

As a rule, a resident participating in a continuous temporary release program who is granted a furlough for the purpose of seeking post-release housing or maintaining family ties must use his own funds to cover the expenses connected with such a furlough. However, if the resident has never gone out of the facility on a family-tie furlough, the resident may be provided the funds necessary to cover the transportation costs of one such furlough at the discretion of the facility director. The expenses related to subsequent furloughs will be deducted from the resident's personal account. However, the disbursement of furlough funds from the resident's personal account shall not be allowed to deplete the resident's account to the point that he may not be able to meet the following week's work or educational leave expenses. At the discretion of the facility director, funds may be advanced for subsequent furloughs. Reimbursement of advances made for subsequent furloughs is required.

This section describes the procedures necessary for the operation of short-term and continuous temporary release programs.

In the case of a resident who has been transferred to another facility in order to participate in a continuous temporary release program, the resident shall receive orientation to the facility and to the program, as described above, which shall include an explanation of any special program services available to the resident.

A resident participating in a continuous community services leave or industrial training leave program shall be subject to the same supervision standards required for residents participating in work release programs as specified in paragraph (3) of this subdivision.

Upon the return of a short-term temporary release participant to the facility, or upon completion or termination of a resident's participation in a continuous temporary release program, the resident's participation in the temporary release program shall be evaluated to determine whether the program was completed successfully and to ascertain whether any program violations occurred. A full report of the resident's performance shall be prepared. The report shall include, but not be limited to: the resident's adjustment to release, his supervision contacts, a statement of any violations of the terms and conditions of release committed by the resident and of any disciplinary action taken, and an assessment of the resident's suitability for parole. A copy of the report, along with a copy of the memorandum of agreement, shall be placed in the resident's facility file and made available to the Board of Parole for the resident's next scheduled board appearance. One copy of each shall also be sent to the director of temporary release programs.

If either a short-term or continuous temporary release participant commits any program violation, he shall be subject to disciplinary action and referred to the temporary release committee for evaluation of his temporary release program, as appropriate. Such reports and any follow-up action shall be noted in the resident's facility record. The provisions in Subparts 179-1 and 179-2 of this Part relating to good behavior allowances shall apply to a resident's behavior while participating in a temporary release program outside the premises of the facility. Such allowances may be granted, withheld, forfeited or canceled in whole or in part for behavior outside the premises of a facility to the same extent and in the same manner as is provided for with regard to behavior within the facility premises.

If it becomes known that a resident is arrested while participating in a short-term or continuous temporary release program, the facility director shall arrange contact with the arresting agency in order to secure the details of the arrest. The temporary release parole officer shall prepare a supplementary report of violation of temporary release, detailing the new criminal charges, as soon as possible following the arrest. If criminal charges are pending as a result of a resident's arrest while on temporary release, a division warrant and/or detainer shall be issued immediately and lodged against the resident at his place of confinement. The facility director shall advise both regional administration and the director of temporary release programs of the details of the arrest and any action taken. The facility director shall arrange for the resident's return to Division for Youth custody upon release from local custody, if legally appropriate.

Nothing contained in the Correction Law, the Executive Law or this Subpart shall be construed to confer upon any resident the right to participate, or to continue to participate, in a temporary release program.

The assigned parole officer or any employee of the Division for Youth shall notify the facility director of any firsthand knowledge of a resident's unsatisfactory participation in a short-term temporary release program. The facility director shall determine whether the resident should be removed from the short-term temporary release program and notify the temporary release committee chairperson of this decision.

The purpose of this Subpart is to promote order and consistent behavioral standards within and between facilities and programs. This purpose is accomplished by establishing clear behavioral expectations for residents and by requiring consistent enforcement of these behaviors by staff. These behavioral expectations apply to all residents of secure, limited secure, and nonsecure facilities, including community-based facilities and programs, operated by the division.

There are three types of rules all residents are expected to follow. Violations of level II and level III rules may result in disciplinary action. In some instances, the same type of behavior may be classified in more than one of the three rule categories, depending upon the specific circumstances.

Level I rules define basic standards of conduct for all residents in all areas of program. Violation of level I rules is considered an infraction and shall be addressed on the resident's unit. Violation of level I rules will not subject a resident to formal disciplinary action.

Level II rules are defined as serious misbehavior.

Level III rules are defined as very serious misbehavior.

Upon each facility or program admission, each resident shall be given a copy of all rules. The rules shall be explained to the resident. The resident and the staff who explained the rules shall sign an acknowledgment. The original is to be filed in the resident's case file, and a copy is to be given to the resident.

It is the responsibility of every facility or program employee to immediately and consistently enforce all level I, II and III rules for all residents. Any violation of these rules must be addressed immediately by the staff observing the incident. Any disciplinary action must be documented.

Each behavior in this section is classified as a level I, II, or III rule violation. If a behavior has more than one designation, it may be classified at different levels, depending upon the specific circumstances.