HOUSE BILL NO. 6541

December 18, 2020, Introduced by Reps. Aiyash, Gay-Dagnogo, Brenda Carter and Garza and referred to the Committee on Judiciary.

"Corrections code of 1953,"

(MCL 791.201 to 791.285) by adding section 64a.

the people of the state of michigan enact:

Sec. 64a. (1) As used in this section and section 64b:

(a) "Correctional facility" includes a state correctional facility operated by the department, a state youth correctional facility operated by the department, and a correctional facility operated by a private entity authorized under the laws of this state to receive and to house prisoners.

(b) "Disability" means a determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder.

(d) "Level V" means the security classification of level V.

(e) "Medical provider" means an individual licensed or otherwise authorized to engage in the practice of medicine or the practice of osteopathic medicine and surgery under article 15 of the public health code, 1978 PA 368, MCL 333.16101 to 18838; an individual licensed as a registered professional nurse under part 172 of the public health code, 1978 PA 368, MCL 333.17201 to 333.17242, who has been issued a specialty certification as a nurse practitioner by the Michigan board of nursing under section 17210 of the public health code, 1978 PA 368, MCL 333.17210; or a physician's assistant.

(f) "Member of a vulnerable population" means a prisoner who meets 1 or more of the following:

(i) Is 21 years of age or younger.

(ii) Is 65 years of age or older.

(iii) Has a disability based on a mental illness.

(iv) Has a history of psychiatric hospitalization.

(v) Has recently exhibited conduct, including, but not limited to, serious self-mutilation, indicating the need for further observation or evaluation to determine the presence of mental illness.

(vi) Has a developmental disability, as that term is defined in section 100a of the mental health code, 1974 PA 258, MCL 330.1100a.

(vii) Has a serious medical condition that cannot be effectively treated in segregation.

(viii) Is pregnant, is in the postpartum period, or has recently suffered a miscarriage or terminated a pregnancy.

(ix) Has a significant auditory or visual impairment.

(x) Is perceived to be lesbian, gay, bisexual, transgender, or intersex.

(g) "Mental illness" means that term as defined in section 400 of the mental health code, 1974 PA 258, MCL 330.1400.

(h) "Physician's assistant" means an individual who is licensed as a physician's assistant under part 170 or part 175 of the public health code, 1978 PA 368, MCL 333.17001 to 333.17097 and 333.17501 to 333.17556.

(i) "Qualified mental health professional" means either of the following:

(i) A physician, psychologist, psychiatrist, registered professional nurse licensed or otherwise authorized to engage in the practice of nursing, or licensed master's social worker, who is a mental health professional as that term is defined in section 100b of the mental health code, 1974 PA 258, MCL 330.1100b.

(ii) A physician's assistant who has training and experience in the areas of mental illness or mental disabilities.

(j) "Safe space cell" means a housing unit in a correctional facility that provides safety for an individual who is in need of protection and that does not restrict the standard property the individual is allowed in his or her housing unit.

(k) "Security classification" means levels I to V that designate the restrictiveness enforced in housing units in a correctional facility, with level I being the least restrictive.

(l) "Segregation" means any confinement in which a prisoner is isolated from the general population of prisoners in a correctional facility for prisoner discipline or for administrative purposes regarding facility management, security, or order.

(m) "Therapeutic mental health service model" means a model developed by the bureau of health care services, in consultation with an expert in the field of neuroscience and with a psychologist or psychiatrist who provides trauma-specific mental health services.

(2) A prisoner in a correctional facility who is a member of a vulnerable population must receive therapeutic mental health service, and must not be confined in segregation. A prisoner in a correctional facility who is a member of a vulnerable population may be secluded temporarily from other prisoners only in the following situations:

(a) For health reasons under the procedure described in section 742 of the mental health code, 1974 PA 258, MCL 330.1742.

(b) Subject to subsection (8), if the prisoner agrees to the temporary segregation in a safe space cell, to protect the prisoner from other prisoners who have threatened or harassed him or her.

(3) If a prisoner's existing or previous health record does not indicate the prisoner is a member of a vulnerable population and he or she is confined in segregation for a period of more than 12 hours, a qualified mental health professional shall conduct an out-of-cell review of the prisoner's mental health status. The out-of-cell review of the prisoner's mental health status must be conducted within the first 24 hours following the prisoner's presence in segregation for more than 12 hours.

(4) If a prisoner's existing or previous health record does not indicate the prisoner is a member of a vulnerable population and he or she is confined in segregation for a period of more than 12 hours, a medical provider shall conduct an out-of-cell physical health examination of the prisoner. The out-of-cell physical health examination must be conducted within the first 24 hours following the prisoner's presence in segregation for more than 12 hours and must include all of the following:

(a) Documentation that the prisoner's health record was reviewed to determine if the prisoner has any significant physical conditions or diseases that could be negatively impacted by confinement in segregation.

(b) A written or verbal health record from the prisoner that must be documented in his or her health record and sent to the legal guardian, if applicable.

(c) Assessment of vital signs; blood pressure; temperature; heart and respiration rates; condition of abdomen, neck, head, skin, and extremities; and neurological, cardiac, and lung functioning.

(5) If the prisoner remains confined in segregation after an out-of-cell mental health review under subsection (3) and a physical health examination under subsection (4), a qualified mental health professional and a medical provider shall conduct out-of-cell reassessments of the prisoner every 3 days to monitor the prisoner's mental health and physical health status.

(6) A qualified mental health professional who conducts a mental health review of a prisoner under subsection (3) shall recommend the prisoner for removal from confinement in segregation and placement in an existing therapeutic mental health service if the prisoner is a member of a vulnerable population or if the prisoner meets any of the following:

(a) The prisoner has been diagnosed with a traumatic brain injury.

(b) The prisoner has been determined to be at risk of suicide or self-harm.

(7) If a recommendation for the cessation of confinement in segregation and placement in a therapeutic mental health service is made under subsection (6), the prisoner must be removed from confinement in segregation within 12 hours of the time that the recommendation was made, and the recommended therapeutic mental health service must commence as soon as possible. A recommendation under subsection (6) is the sole responsibility of the examining qualified mental health professional and is not subject to the authority of the administrative or custodial staff of a correctional facility or the department. Therapeutic mental health service under this subsection must not utilize observation cells unless the use is adopted within a therapeutic mental health service model. The department shall create a written therapeutic orientation plan for a prisoner before the department begins a therapeutic mental health service required under this section. The department shall allow a prisoner access to the prisoner's personal property while the prisoner is receiving therapeutic mental health service under this subsection.

(8) A prisoner who is confined in a safe space cell under subsection (2)(b) must be allowed not less than 2 or more than 4 hours outside of the cell each day, phone calls, contact visits, standard store orders, and an ability to order Securepak. The department shall create a written plan for the creation of safe space cells to use for confinement under subsection (2)(b).

(9) There is a presumption against the imposition of misconduct charges and pursuit of disciplinary actions, or any other imposition of additional time confined in segregation or any nontherapeutic confinement other than that allowed under subsection (2) for a prisoner who is a member of a vulnerable population.

(10) No later than the effective date of the amendatory act that added this section, a qualified mental health professional shall have evaluated every prisoner confined in segregation for potential applicability of this section.

(11) Except as provided in subsections (8) and (12), a prisoner confined in segregation must not be housed in-cell for more than 20 hours a day. The time the prisoner is not housed in-cell may include time spent in a therapeutic environment or on other activities, and time while being unshackled in an outdoor or indoor area.

(12) Unless he or she is confined in segregation for an assaultive act, has committed an assaultive act while confined in segregation, or is subject to subsection (8), a prisoner confined in segregation must be allowed out-of-cell for at least 4 hours a day. A prisoner who is confined in segregation for an assaultive act or who has committed an assaultive act while confined in segregation must be allowed out-of-cell for at least 2 hours a day and receive at least 2 hours a day of in-cell programming.

(13) A prisoner confined in segregation must not remain in segregation for more than 20 days in any 60-day period.

(14) Safe space cells and all other holding or living spaces utilized to house prisoners confined in segregation must be clean and properly ventilated, lit, temperature controlled, and equipped with properly functioning sanitary fixtures.

(15) The department shall develop a written plan to end the use of restraining prisoners by the use of a hog-tying technique and also to eliminate the equipment for that type of restraint from correctional facilities.

Enacting section 1. This amendatory act does not take effect unless Senate Bill No.____ or House Bill No. 6542 (request no. 06682'20) of the 100th Legislature is enacted into law.