Section 1-15 (“Variances”) provides that the Department of Correction may apply to the Board of Correction for a variance “from a specific subdivision or section…when compliance cannot be achieved or continued” (subdivision [a]). Subdivision (b) explains the circumstances under which the Department may apply for a variance. Subdivision (c) lists the elements of a variance application, and subdivision (d) describes the process by which the Board considers variance requests. Subdivision (e) provides that the Board may set conditions upon which it grants a variance.

At the request of the Department of Correction, the Board of Correction has granted several variances. These variances, and conditions imposed by the Board, are summarized briefly below. The date each variance initially was granted appears in parentheses:

§1-02 (“Classification of Prisoners”)
DOC is authorized to house special category adolescent City-sentenced prisoners in adolescent detainee cell housing areas at the Robert N. Davoren Center (RNDC). This variance was granted upon the condition that adolescent City-sentenced prisoners housed in RNDC will be treated as detainees for all purposes other than housing. (March 1989)

Subdivision (b)(1) (“Categories”)
DOC is authorized to commingle in the same housing area at the Robert N. Davoren Center City-sentenced high-custody adolescent male prisoners and high-custody adolescent male detainees. This variance was granted on the following conditions: commingled high-custody City-sentenced adolescent male prisoners shall be treated as detainees; they will be housed at the front of a housing corridor to facilitate officer observation; and DOC will submit to the Board monthly reports of incidents in all commingled housing areas. (March 2012)

§1-03 (“Personal Hygiene”)
Subdivision (g) (“Clothing”)
A continuing variance authorizes DOC to require detainees in punitive segregation status to wear, except for court, seasonally appropriate facility clothing provided, laundered and repaired at Department expense.  (April 1991)

The above variance from §1-03(g) was granted upon the following conditions:

• Upon admission to a punitive segregation housing area, each prisoner shall be issued three facility uniforms and two facility thermal undershirts, clean and in good repair and appropriately sized. Thereafter, DOC shall provide twice weekly exchanges of two uniforms;
• Each prisoner shall be permitted to retain four changes of underwear, four pairs of socks, and one pair of shower slippers; and
• DOC shall provide secure, readily-accessible storage for the personal property of each punitive segregation prisoner;
• When punitive segregation prisoners go outside the facility, DOC shall provide access to appropriate outer garments.

A continuing variance authorizes DOC to require prisoners on suicide watch to wear suicide resistant smocks and undergarments when inside their housing areas. The variance further provides that DOC may require detainees on suicide watch to wear uniforms whenever outside the housing area, except for court, when they may wear personal clothing. Personal accessories, including shoelaces, belts, ties and bras, need not be provided until immediately before the prisoner enters a courtroom, and may be confiscated after the prisoner exits therefrom. (September 2003)

Subdivision (i) (“Bedding”)
DOC is authorized to provide to prisoners on suicide watch bedding made of suicide-resistant materials. (September 2003)

The above variances from §1-03(g) and (i) were granted upon the following conditions:

• Only mental health providers may place a prisoner on suicide watch and require the use of a suicide smock and bedding;
• Officers assigned to areas where prisoners are on suicide watch must make frequent, irregular observations of these prisoners (at least four per hour).
• Unless inappropriate for compelling security or medical reasons, prisoners on suicide watch should be housed in dormitories. Dormitory prisoners may be required to wear smocks only in dormitories where all other prisoners are clothed in suicide smocks.
• Unless prohibited in writing by the provider, prisoners on suicide watch must be permitted personal hygiene items and personal items, including reading materials and photographs.
• Prisoners wearing suicide smocks shall be provided with daily exchanges of clean smocks and undergarments. Disposable undergarments will be provided with a uniform whenever prisoners leave their cell.
• Suicide watch prisoners shall be permitted to wear civilian clothing when inside a court room for trial.

§1-04 (“Overcrowding”)
Subdivisions (c)(5)(i) and (ii) (“Multiple Occupancy”)
Continuing variances authorize DOC to exceed capacities of 50 detainees or 60 sentenced prisoners in unusually large dormitories, and to house prisoners at less than 60 square feet as follows:

• Eric M. Taylor Center (EMTC)
  In 24 dormitories with capacities of 58, house up to 60 sentenced prisoners. (December 2004)
• Manhattan Detention Complex (MDC)
  In Dorm 8 North, increase allowable capacity from 43 to 60 City-sentenced worker-prisoners. (December 2004)
• Otis Bantum Correctional Center (OBCC)
  In 14 dormitories with capacities of 57, house up to 60 detainees. (December 2004)
• Vernon C. Bain Center (VCBC)
  In 14 air-conditioned dormitories, increase allowable capacity from 50 to 55 prisoners. (June 2005)

These variances were granted upon the condition that cross-relieving of officers is prohibited in the variance dormitories listed above.

Subdivision (c)(3)
To facilitate the variances to subsections (c)(5)(i) and (ii), above, the Board has granted continuing variances authorizing DOC to operate dormitories with fewer than one operable toilet and one operable shower for every eight prisoners, at EMTC, MDC, and OBCC. (December 2004)

Also to facilitate the variances to subsections (c)(5)(i) and (ii), above, the Board has granted continuing variances authorizing DOC to operate dormitories with fewer than one operable sink for every ten prisoners, at OBCC (December 2004) and VCBC. (June 2005)

Subdivision (c)(4)
Continuing variances from subdivision (c)(4) authorize DOC to operate dormitories with dayrooms that are not physically and acoustically separate from the sleeping area, in “Sprung” dormitories 3 and 4 at the George Motchan Detention Center (GMDC). (February 1990)

§1-05 (“Lock-In”)
Subdivision §(b)(2)
DOC is authorized to temporarily restrict for up to two hours in their cells adolescent prisoners assigned to cell housing units at RNDC who continue to engage in minor misconduct after being ordered to stop. An inmate in temporary cell restriction will have access to all mandated services, unless in the opinion of the area supervisor the inmate has not regained his composure. Under these circumstances, the Department may delay or deny a temporarily restricted inmate’s access to showers § 1-03(b), recreation §1-06(c), congregate religious services §1-07(c) and (j) and law library §1-08(f)(4). All other provisions of the Minimum Standards remain in full force and effect, including §1-09 “Visiting”.  (September 2012)

These variances were granted upon the following conditions:

• The Department will report in writing to the Board every week on its tracking of implementation of the variances.  Specifically, DOC will list every inmate, by name and book and case number, who is restricted to his cell; provide a description of the behavior engaged in by the inmate that resulted in cell restriction; the time of the misbehavior;  the time the inmate is first confined to his cell and the time that he is released from cell restriction; the names of the officer who recommended cell restriction and the area captain and tour commander who participated in the cell restriction determination; the time the area captain arrives in the housing area and the time tour commander makes his/her determination to lock-in and then lock-out the inmate; list each and every mandated service that was affected and indicate whether they were delayed or denied;  and indicate if mental health services were provided and if disciplinary action was taken.
• The two-hour temporary cell restriction period will begin to run when the prisoner is first locked in his cell.
• The determination to place a prisoner on temporary cell restriction shall be made by the tour commander after consulting with the area supervisor, who shall interview staff who witnessed the incident and the prisoner(s) involved.
• A prisoner on a temporary cell restriction, regardless of his age, who is enrolled in school, shall not be delayed or denied from attending class.
• A prisoner on a temporary cell restriction with funds in his inmate account shall be able to go to commissary with his housing area, if in the opinion of the area supervisor the incident has been satisfactorily resolved.  Otherwise the prisoner shall be afforded the opportunity to purchase commissary items through the bagging operation.
• Prior to implementation of these variances, adolescent prisoners assigned to RNDC shall be educated about temporary cell restriction.  Information about this restriction shall be posted on the DOC website and made available to new admission prisoners as part of the orientation process, and will be posted in all adolescent housing areas.
• By 10 a. m. each day the Department will provide the RNDC Health Services Administrator and DOHMH’s CHS Director of Clinic Administration a daily report of prisoners placed in temporary cell restriction for the prior 24 hours.
• If a mandated service occurs during the two-hour restriction period, the Department cannot “make-up” the remaining restriction time when the inmate returns from the service.
• The Department shall provide the Board with the following data regarding RNDC adolescents from March 1, 2012 and for as long as the variances are in effect: 
• by month, the number of infractions by type and for each infraction where the inmate is found guilty, the penalty imposed and the actual number of days the inmate is confined in punitive segregation (RNDC, CPSU, and MHAUII) and
• by month, the total number of fights, and total number of fights with injuries.
  

§1-06 (“Recreation”)
Continuing variances require DOC, in consultation with medical staff, to provide to prisoners confined for medical reasons in contagious disease units, appropriate outdoor recreation equipment and materials for in-cell recreation, including but not limited to passive games and arts and crafts. As a condition, DOC provides daily newspapers and books and magazines, in English and Spanish, as appropriate. (May 1992)

Variances from specific sections or subdivisions of the Health Care Minimum Standards are governed by Section 3-13 (“Variances”).

Section 3-04 (“Screening”)
Subdivision (b)(2)(v)(a) DOHMH is authorized to allow health providers, during the medical intake screening process at the Rose M. Singer Center, to use either the tuberculin skin test or interferon gamma release assays (IGRA) to screen female prisoners for tuberculosis. (September 2010)

The same variance was approved by the Board to use either the tuberculin skin test or IGRA to screen male prisoners for tuberculosis. (July 2012)