1. (1) Designation of a secure facility. In cases where a person is to be remanded to the commissioner pursuant to a final order of observation, as defined in section 540.2(i) of this Part, the commissioner may designate a secure facility to receive such person in cases where the person has:

   1. (i) open felony charges or warrants or a pending parole revocation hearing; or
   2. (ii) a history of arrests for violent crimes or threats to commit violent crimes against persons or a history that includes escape or attempted escape from a psychiatric facility, and, based upon a review of available information, the commissioner believes such person would likely meet the secure retention standards in paragraph (4) of this subdivision.

2. (2) Designated secure facility procedure. Within 72 hours of receiving a person from a criminal court who appears to meet any of the criteria identified in paragraph (1) of this subdivision, the designated secure facility will:

   1. (i) evaluate the person to confirm that he or she does meet such criteria; and

   2. (ii) determine:

      1. (a) if the person has a mental illness for which care and treatment as a patient in a hospital is essential to such person's welfare;
      2. (b) if the person's judgment is so impaired that he is unable to understand the need for such care and treatment; and
      3. (c) if, as a result of mental illness, the person poses a risk of harm to self or other; and

   3. (iii) give notice that this patient is now a civil patient and no further notice, pursuant to section 730.60(6) of the Criminal Procedure Law and section 29.11(h) of the Mental Hygiene Law, shall be given of transfer to a non-secure facility or release, unless such notice is in compliance with the provisions of section 33.13 of the Mental Hygiene Law. Such notice shall be given to:

      1. (a) the district attorney of the county from which the patient was committed;
      2. (b) the superintendent of State Police;
      3. (c) the sheriff of the county where the facility is located;
      4. (d) the police department having jurisdiction of the area where the facility is located;
      5. (e) any person who may reasonably be expected to be the victim of any assault or any violent felony, as defined in the Penal Law, which would be carried out by the committed person;
      6. (f) the Mental Hygiene Legal Service or other attorney representing the patient, if any; and
      7. (g) any person or entity the court that committed the patient to the custody of the commissioner may have designated in the order issued under article 730 of the Criminal Procedure Law.
3. (3) Notice. Within 24 hours of confirming the need to admit the patient to the secure facility, the director of such facility shall provide notice of the commissioner's determination that the patient needs secure placement and of the patient's right to object to placement at such secure facility to: the patient, the nearest relative of the patient, if there be any known to him, and to the Mental Hygiene Legal Service or other legal representative.
4. (4) Hospital forensic committee review. Within 30 days of the patient's placement in a designated secure facility pursuant to subparagraph (1)(ii) of this subdivision, the facility's hospital forensic committee shall review the patient's placement in that facility to confirm that there is a substantial risk that such patient may cause physical harm to other persons, as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious harm and therefore the patient needs the close supervision provided by a secure facility.
5. (5) Objection. If the patient has been placed in a secure facility pursuant to subpapragraph (1)(ii) of this subdivision, such patient, or anyone on his/her behalf may file a written objection to the placement with the director of the facility after the 30-day review period has elapsed and a decision to retain the patient at the secure facility has been made. The patient or his/her representative may support the objection by filing with the director, within 10 days, exclusive of Saturdays, Sundays and holidays, of the 30-day or periodic review done pursuant to paragraph (4) or (7) of this subdivision, appropriate written arguments supported by documents, statements, and affidavits. The director shall send the notice of objection and any material submitted by the patient or the person filing an objection on the patient's behalf to the commissioner or his/her designee. The director may also send to the commissioner or his/her designee written arguments supported by documents, statements, and affidavits in support of his/her decision to admit the patient to a secure facility, provided that a copy of such material be provided to the patient and his/her representative(s).

6. (6) Determination.

   1. (i) If no objection is received to the notice of determination for placement in a secure facility, the director shall so notify the commissioner or his/her designee.
   2. (ii) If objection has been filed, the commissioner or his/her designee shall designate a qualified psychiatrist or licensed psychologist not on the staff of the secure facility to which the patient has been admitted, who shall assist him/her in evaluating the secure placement. The qualified psychiatrist or licensed psychologist shall personally visit the hospital and shall interview the patient, the patient's physician, the director, and others as he/she deems necessary and shall make a report and recommendation to the commissioner or his/her designee.
   3. (iii) A copy of such report shall be sent to the persons served with notice of the determination for placement in a secure facility. The commissioner or his/her designee shall give due consideration to the arguments and supporting material presented by the respective parties as well as the report of the designated qualified psychiatrist or licensed psychologist, and shall decide the matter, upholding or reversing such secure placement.
   4. (iv) If the decision is to confirm the need for placement in a secure facility, the determination shall be upheld. The decision of the commissioner or his/her designee shall be communicated to the director, the patient and the patient's representative(s).

7. (7) Review of patient's condition.

   1. (i) A patient placed in a designated secure facility from a criminal court pursuant to a final order of observation shall be retained at such hospital only as long as his/her condition requires placement at such hospital in accordance with the criteria set forth in subparagraph (1)(ii) and subparagraphs (2)(i) and (ii) of this subdivision, and if there is a substantial risk that such patient may cause physical harm to other persons, as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious harm and therefore the patient needs the close supervision provided by a secure facility.
   2. (ii) Unless the patient has been discharged or transferred, the director of a designated secure facility who has received a patient in accordance with this subdivision shall comply with the provisions of article 9 of the Mental Hygiene Law and shall apply, in accordance with such article, for the required periodic orders authorizing retention of involuntary patients. In addition, such director shall periodically review the need for retention in the designated secure facility of each involuntary patient and shall file a report with the commissioner or his/her designee for each such patient at intervals of not more than six months setting forth reasons why the patient needs continued retention at such facility. A copy of such report shall be served on the patient and the Mental Hygiene Legal Service or the legal representative of the patient. The patient or his/her legal representative may file an objection in accordance with paragraph (5) of this subdivision.
   3. (iii) Involuntary patients who no longer need placement in the designated secure facility but who still require involuntary care and treatment shall be transferred to another hospital in the Office of Mental Health in accordance with subdivision (b) of this section.
8. (b) Transfers from a secure facility to a non-secure facility. Patients who are in the custody of the commissioner may be transferred from a secure facility to a nonsecure facility by order of the commissioner or his/her designee.
9. (c) Nothing in this section shall be construed to limit the right of any person to seek transfer or release pursuant to section 33.15 of the Mental Hygiene Law.

(a) Orders remanding persons to the custody of the Commissioner.