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Variances Granted by the Board of Correction

Minimum Standards for New York City Correctional Facilities

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)

DOC is authorized to commingle adolescent and adult as well as detainee and sentenced pregnant inmates at the Rose M. Singer Center (RMSC) to enable better medical monitoring and to avoid exposure to seasonal and pandemic influenzas and other contagious infections.  (June 2009)

§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)

§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)


Mental Health Minimum Standards

Variances from specific sections or subdivisions of the Mental Health Minimum Standards are governed by Section 2-09 (“Variances”).

At the request of the Department of Health and Mental Hygiene, the Board of Correction has granted the following variance:

§ 5.2(b)(i)(ii) (“Medication: Procedures”)
A continuing variance authorizes psychiatrists to see and evaluate stable adult patients on psychotropic medications in general population at least every 28 days instead of the current 14-day requirement. Controlled substances ordered for psychiatric reasons will be reduced from the current 14-day limit to no more than five days per order. By granting this variance, the Board believes that this will make the psychotropic medication prescription practices consistent with the current community standard. This variance was granted upon the following conditions:

  • Patients must maintain compliance with medication regimen after being placed on 28-day medication renewals.
  • Patients must be compliant with requirements to see clinician and/or psychiatrist regularly after being placed on 28-day medication renewals.
  • The variance will not result in the reduction of psychiatric staffing levels.

(November 2005)


Health Care Minimum Standards

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

Section 3-04 (“Screening”) (b)(2)(v)(a)
DOHMH is authorized to allow health providers, during the medical intake screening process to use either the tuberculin skin test or interferon gamma release assays (IGRA) to screen female and male prisoners for tuberculosis. (September 2010 and July 2012)

Section 3-08 (“Privacy and Confidentiality”)(c)(3)
DOHMH is authorized to allow health care staff to provide to the Department of Correction specific diagnoses related only to injuries sustained by prisoners while in correctional custody. The reporting of diagnoses unrelated to an injury would remain prohibited from disclosure. (November 2013)