A3722

An Act concerning prison-based mental health and substance abuse treatment programs, supplementing Title 30 of the Revised Statutes, and amending P.L.1999, c.16 and P.L.1986, c.71.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 2 of P.L.1999, c.16 (C.30:1B-10.1) is amended to read as follows:

2. [The] Consistent with the provisions of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill), the Commissioner of Corrections shall [provide or arrange for] ensure the provision of: (1) appropriate mental health services to [State-sentenced incarcerated persons] inmates who suffer from mental illness, as defined in section 2 of P.L.1987, c.116 (C.30:4-27.2), but who are not in need of inpatient treatment at a State psychiatric facility [. The commissioner may, in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), promulgate rules and regulations governing the provision of mental health services to inmates.] ; and (2) appropriate substance abuse treatment services to inmates who are addicted to, or who are otherwise suffering physically or mentally from the use or abuse of, narcotic drugs, as defined by section 2 of P.L.1970, c.334 (C.26:2G-22), or alcohol.

As used in this section, “inmate” means a person who has been convicted of, and sentenced to a period of incarceration for, a violation of any of the laws of this State or nation, and who is incarcerated in a correctional institution operated under the authority of the Department of Corrections.

(cf: P.L.1999, c.16, s.2)

2. (New section) a. As provided in this subsection, the Department of Corrections and the Department of Human Services shall share regulatory authority over the therapeutic prison-based treatment of inmates who have a mental illness, as defined by section 2 of P.L.1987, c.410 (C.52:14B-1 et seq.), and inmates who are addicted to, or who are otherwise suffering physically or mentally from the use or abuse of, narcotic drugs, as defined by section 2 of P.L.1970, c.334 (C.26:2G-22), or alcohol.

(1) The Department of Corrections shall be responsible for the day-to-day operation and management of any prison-based therapeutic treatment center in this State, as well as for the custodial care of inmates who are engaged in therapeutic prison-based treatment. Each inmate engaged in therapeutic prison-based
treatment shall remain subject to the supervisory and disciplinary authority of custodial personnel at the correctional institution, as exercised in accordance with rules and regulations adopted pursuant to this section.

(2) The Division of Mental Health and Addiction Services in the Department of Human Services shall be responsible for providing or arranging for the treatment, by licensed or certified treatment providers, of inmates who are assigned to prison-based therapeutic treatment centers operated by the Department of Corrections pursuant to paragraph (1) of this subsection. Such treatment shall be tailored to address the specific needs of inmates with mental illness or substance abuse problems, as appropriate.

b. Appropriate representatives of the Department of Corrections and the Department of Human Services shall establish, and participate in, an interagency oversight board to facilitate the development, coordination, and review of policies and procedures used in therapeutic prison-based treatment.

c. (1) Notwithstanding any other law, rule, or regulation to the contrary, the rights, rules of conduct, and treatment protocols applicable to an inmate who is engaged in therapeutic prison-based treatment shall be established by rule or regulation adopted jointly by the Commissioner of Human Services and the Commissioner of Corrections, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.). These rules and regulations shall reflect and adequately account for the division of authority, and the respective roles of the Department of Corrections and the Department of Human Services in relation to the day-to-day operation and management of prison-based therapeutic treatment centers and the provision of therapeutic prison-based treatment therein, as provided in subsection a. of this section. If deemed appropriate, the rules and regulations may authorize the Department of Corrections to enter into service contracts with licensed or certified treatment providers.

(2) In developing rules and regulations pursuant to this subsection, the commissioners shall take into consideration: (a) the rights of mental health services patients as set forth in section 10 of P.L.1965, c.59 (C.30:4-24.2); (b) the rights of substance abuse patients as set forth in regulation adopted pursuant to P.L.1970, c.334 (C.26:2G-21 et seq.) and P.L.1974, c.304 (C.26:2B-7 et seq.); (c) the differing needs and specific characteristics of, and types of treatment that are appropriate for, inmates; and (d) the security concerns associated with correctional institutions, and the necessity to ensure the safety of prisoners, treatment staff, custodial personnel, and others in and about the therapeutic prison-based treatment center.

(3) Rules and regulations adopted pursuant to this subsection may incorporate by reference, or otherwise cite or adopt, the provisions of the mental health services plan developed in accordance with P.L.1986, c.71 (C.30:4-82.1 et seq.), or the provisions of any rules or regulations adopted pursuant that act, provided that the plan provisions, rules, or regulations adequately reflect, and account for, the division of authority required by subsection a. of this section. To the extent that any plan provisions or associated rules or regulations do not account for the division of authority required by subsection a. of this section, those plan provisions, rules, or regulations shall be jointly revised in accordance with the provisions of subsection b. of P.L.1986, c.71 (C.30:4-82.3). Any plan provisions or associated rules or regulations which are not incorporated or otherwise adopted pursuant to this paragraph shall be nullified or repealed, as appropriate.

d. As used in this section:

“Correctional institution” means a prison, jail, or other place of institutional confinement that is used to house inmates, and which is regulated by the Department of Corrections.

“Inmate” means a person who has been convicted of, and sentenced to a period of incarceration for, a violation of any of the laws of this State or nation, and who is incarcerated in a correctional institution operated under the authority of the Department of Corrections.

“Licensed or certified treatment provider” means a person or entity that is authorized to provide mental health treatment services or substance abuse treatment services in the State, pursuant to a valid license or certification issued by the Division of Mental Health and Addiction Services in the Department of Human Services.

“Prison-based therapeutic treatment center” means an area, facility, or sub-facility within a correctional institution, which has been designated or otherwise set aside for the therapeutic prison-based treatment of inmates who are being housed at the correctional institution.

“Therapeutic prison-based treatment” means therapeutic or rehabilitative treatment, which is provided within the walls of a correctional institution to inmates housed therein who have a mental illness, as defined by section 2 of P.L.1987, c.116 (C.30:4-27.2), or who are addicted to, or otherwise suffering physically or mentally from the use or abuse of, narcotic drugs, as defined by section 2 of P.L.1970, c.334 (C.26:2G-22), or alcohol.

3. Section 3 of P.L.1986, c.71 (C.30:4-82.3) is amended to read as follows:

3. a. The plan required under section 2 of [this act] P.L.1986, c.71 (C.30:4-82.2) shall be formulated no later than the 181st day after the effective date of [this act] P.L.1986, c.71 (C.30:4-82.1 et seq.). Pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C. 52:14B-1 et seq.), the Commissioner of [the Department of] Human Services and the Commissioner of Corrections [jointly] shall jointly adopt regulations establishing the procedures formulated under the plan required by section 2 of [this act] P.L.1986, c.71 (C.30:4-82.2).

b. Immediately following the enactment of P.L. , c. (C. ) (pending before the Legislature as this bill), the commissioners shall take joint action, as necessary, to revise and update both the mental health services plan developed pursuant to section 2 of P.L.1986, c.71 (C.30:4-82.2), and the associated rules and regulations adopted pursuant to this section, in order to ensure that the plan provisions and the rules and regulations appropriately reflect, and account for, the division of authority required by subsection a. of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill). If a plan provision, rule, or regulation does not reflect the division of authority required by subsection a. of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill), and is not revised to do so, in accordance with the provisions of this subsection, the provision, rule, or regulation shall be nullified or repealed, as appropriate.

(cf: P.L.1986, c.71, s.3)

4. This act shall take effect on the first day of the fourth month following the date of enactment, except that the Commissioner of Human Services and the Commissioner of Corrections may take administrative action in advance thereof, as shall be necessary for the implementation of this act.

STATEMENT

This bill would establish an interagency system of regulation applicable to therapeutic prison-based treatment centers. As defined by the bill, a therapeutic prison-based treatment center would include any area, facility, or sub-facility within the walls of a correctional institution, which is designated or set aside as a center for the provision of mental health or substance abuse treatment services to persons incarcerated in that institution (inmates).

The bill would split regulatory authority over these treatment centers between the Department of Corrections (DOC) and the Division of Mental Health and Addiction Services (DMHAS) in the Department of Human Services (DHS). In particular, the bill would specify that the DOC will be responsible for the day-to-day operation and management of therapeutic prison-based treatment centers, as well as for the custodial care and supervision of inmates being treated therein, while the DMHAS will be responsible for providing or arranging for the provision of treatment services to such inmates by DMHAS-licensed treatment providers.

The bill would require appropriate representatives of the DOC and DMHAS to establish, and participate in, an interagency oversight board to facilitate the coordination of policies and procedures used in therapeutic prison-based treatment centers. In addition, the DOC and DMHAS would be required to jointly adopt rules and regulations applicable to these treatment centers. Any such rules and regulations must reflect, and be consistent with, the division of authority specified by the bill, and the respective roles of the DOC and DMHAS. In developing these rules or regulations, the commissioners would be required to take into consideration:

· the rights of mental health services patients and substance abuse patients as set forth in law and regulation;

· the differing needs and specific characteristics of, and types of treatment that are appropriate for, State-sentenced incarcerated persons; and

· the security concerns associated with correctional institutions, and the necessity to ensure the safety of prisoners, treatment staff, custodial personnel, and others in and about the therapeutic prison-based treatment center.

The bill would specify that the new jointly-adopted rules and regulations may also incorporate the provisions of a mental health services plan that was previously adopted by the DOC and DHS pursuant to the provisions of P.L.1986, c.71, or the provisions of joint rules and regulations associated therewith, but only if the provisions to be incorporated already account for the division of departmental authority required by the bill or are jointly revised by the DOC and DHS to do so. Any previously adopted plan provisions or rules and regulations which do not account for the requisite division of authority, and which are not revised in accordance with the bill’s provisions, must be repealed.

This bill is designed to address concerns that have been raised regarding the adequacy of therapeutic prison-based treatment programs. In particular, it has been alleged that these programs are inferior to treatment programs that are provided to non-incarcerated individuals, since prison-based programs are regulated by the DOC, pursuant to the agency’s overarching authority over prisoners and correctional institutions, and are consequently not regulated or licensed by the DMHAS, which is the agency that is generally responsible for the regulation of mental health and substance abuse treatment programs in the State. Accordingly, in order to avoid disparate treatment of persons undergoing mental health and substance abuse treatment in the State, and in order to ensure that treatment standards and protocols used by prison-based and non-prison-based facilities are consistent, this bill would provide the DMHAS with the authority to regulate the mental health and substance abuse treatment that is provided in correctional institutions, and additionally require the DMHAS to ensure that such treatment is provided by DMHAS-licensed individuals or entities. However, the bill would preserve the DOC’s primary jurisdiction over the day-to-day operation and management of therapeutic prison-based treatment programs and the inmates engaged therein.