Drug Abuse Treatment Programs; Final and Interim Rules

DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Parts 545, and 550

[BOP-1010-F]

RIN 1120-AA16

Drug Abuse Treatment Programs

AGENCY: Bureau of Prisons, Justice.

ACTION: Final and interim rules.

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SUMMARY: In this document, the Bureau of Prisons is amending its rule

on Chemical Abuse Programs by renaming it as Drug Abuse Treatment

Programs, by expanding programming available to inmates, and by

requiring participation from certain inmates. An inmate who has been

recommended for drug programming during incarceration by the sentencing

judge, or whose presentence investigation contains evidence that

alcohol or other drug use contributed to the commission of the instant

offense, or for whom alcohol or drug abuse was a reason for violation

of either supervised release, parole or community corrections center

placement will be required to participate in a drug abuse education

course. Further program opportunities are presented through voluntary

participation in residential and non-residential drug abuse treatment

programs and through transitional services. This amendment also makes

conforming changes with respect to inmate financial responsibility

requirements. Provisions on eligibility criteria for residential and

non-residential drug treatment programs are being adopted on an interim

basis. This amendment is intended to fulfill statutory requirements to

make available to inmates appropriate substance abuse treatment.

DATES: Effective November 21, 1994; comments on interim provisions in

Secs. 550.55(a) and 550.57(a) are due December 20, 1994.

ADDRESSES: Office of General Counsel, Bureau of Prisons, HOLC Room 754,

320 First Street, NW., Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Office of General

Counsel, Bureau of Prisons, phone (202) 514-6655.

SUPPLEMENTARY INFORMATION: The Bureau of Prisons is amending its

regulations on Chemical Abuse Programs. A proposed rule on this subject

was published in the Federal Register on January 7, 1994 (59 FR 1240 et

seq.). This proposed rule renamed such programming as Drug Abuse

Treatment Programs and distinguished between mandatory and voluntary

requirements for inmate participation. The comment period closed on

March 8, 1994. The Bureau received comment from only one respondent. A

summary of comment and agency response follows.

The commenter stated that the statutory provision mandating the

Bureau of Prisons to provide substance abuse treatment programs is

directly opposed to mandating participation in treatment programs when

imposing the original sentence. The commenter cited 18 U.S.C. 3582(a)

and 28 U.S.C. 994(k) as being ``inappropriately immiscible'' to the

provisions proposed in 28 CFR 550.52(a) (1) and (3). In response, the

Bureau notes that there is no statutory conflict. The provisions in 18

U.S.C. 3582(a) and 28 U.S.C. 994(k) relate to imposition of sentence by

the court under the guidelines of the United States Sentencing

Commission. These are intended to ensure that the various aspects

relating to the offense are considered in determining the relevance of

imprisonment, and if relevant, the length of such imprisonment. It is

only after a term of imprisonment is imposed that 18 U.S.C. 3621

becomes applicable. The Bureau's authority under 18 U.S.C. 3621(b) to

make available appropriate substance abuse treatment for each inmate

committed to its custody has been implemented separately through this

very rulemaking. Use by the Bureau of the sentencing court's

recommendation or of information in the Presentence Investigation has

no direct impact on the prior decision taken by the sentencing court.

The commenter also questioned the operation of the program at a

specific Bureau institution, stating that the proposals were being

implemented with severe sanctions for an inmate who does not

participate voluntarily. The administrative remedy procedure is the

appropriate means for inmates to voice their concerns on such aspects

of their imprisonment. A review of inmate remedy requests for calendar

year 1993 at the cited institution indicates only one request filed

under the subject matter of substance abuse programs. The ``severe

sanctions'' apparently refer to pay and community status restrictions

(i.e., being held to the lowest pay grade and loss of eligibility for

furlough consideration or community corrections center placement)

imposed on an inmate who had declined to complete drug abuse education

requirements. That complaint ultimately was mooted upon the inmate's

completion of the forty hour course.

In issuing the final rule, the Bureau has further reorganized the

regulations for the sake of clarity. Additional provisions have been

added which are either administrative in nature or are intended to

allow for increased voluntary participation in drug abuse treatment

programming. Specific provisions as to eligibility criteria codified in

new Secs. 550.55(a) and 550.57(a) are being adopted on an interim basis

with the opportunity for further comment. A discussion of this further

reorganization and additions follows.

The statement of purpose and scope Sec. 550.50 is adopted as final

without change. The provisions in proposed Sec. 550.51 have been

reorganized and revised as new Secs. 550.51 through 550.53. As revised,

new Sec. 550.51 defines the role of the Drug Abuse Treatment

Coordinator and the Drug Abuse Treatment Specialist. Provisions of

proposed Sec. 550.51 which covered requirements on the Admission and

Orientation program and screening and referral are now separately

stated in new Secs. 550.52 and 550.53. New Sec. 550.52 contains the

provisions pertinent to the Admission and Orientation program. These

provisions have been reworded, but there is no change in the intent.

New Sec. 550.53 contains the provisions pertinent to screening and

referral. As revised, this section now also provides for a record

review by the case manager.

The provisions in proposed Sec. 550.52 on the drug abuse education

course have been revised as new Sec. 550.54. This section has been

reorganized and revised for the sake of clarity. As revised, paragraph

(a)(2) of this section now also specifies that, with respect to

voluntary participants, the Bureau gives priority consideration to

those inmates whose participation has been recommended by unit or

treatment staff. This change is necessary to help ensure the efficient

program allocation of Bureau resources. Paragraph (b) of the revised

section now allows for inmates to receive work assignment promotions

during their participation in or while on a ``waiting list'' for the

drug abuse education course.

The provisions in proposed Sec. 550.53 on institution residential

and nonresidential programs have been revised and separately stated in

new Secs. 550.55 through 550.57. New Sec. 550.55 covers the voluntary

institution residential drug abuse treatment program. As revised, this

section no longer restricts application to those inmates who have been

recommended by unit and/or drug treatment staff. As a consequence of

this expansion of programming opportunity, paragraph (a) of new

Sec. 550.55 now contains eligibility criteria for program

participation. The eligibility criteria is intended to allow the Bureau

to allocate its resources in an efficient manner. The Bureau is

adopting this provision on an interim basis, and will accept comments

for the purpose of reissuance as a final regulation. New Sec. 550.56

contains the provisions in proposed Sec. 550.53(c) on the use of

incentives. New Sec. 550.57 covers the voluntary non-residential drug

treatment program. As revised, programming opportunities appropriate

for the drug abuse treatment needs of inmates who have more than

thirty-six months left to serve have been expanded and consequent

eligibility criteria in Sec. 550.57(a) have been adopted on an interim

basis.

The provisions for transitional services in proposed Sec. 550.54

have been adopted as final without change in new Sec. 550.58.

Conforming changes to the Bureau's provisions on inmate financial

responsibility (28 CFR 545.11) have been adopted as final without

change. Other proposed conforming changes to the provisions on

institution work and performance pay (28 CFR 545.23) will be addressed

in a separate final rule document.

Interested persons may participate in this rulemaking by submitting

data, views, or arguments in writing to the Bureau of Prisons, 320

First Street, NW., HOLC Room 754, Washington, DC 20534. Comments

received on the interim rule provisions during the comment period will

be considered before final action is taken. Comments received on the

final rule provisions will be considered but will receive no formal

response in the Federal Register. All comments received remain on file

for public inspection at the above address.

The Bureau of Prisons has determined that this rule is not a

significant regulatory action for the purpose of E.O. 12866, and

accordingly this rule was not reviewed by the Office of Management and

Budget. After review of the law and regulations, the Director, Bureau

of Prisons has certified that this rule, for the purpose of the

Regulatory Flexibility Act (Pub. L. 96-354), does not have a

significant impact on a substantial number of small entities.

List of Subjects in 28 CFR Parts 545 and 550

Prisoners.

Kathleen M. Hawk,

Director, Bureau of Prisons.

Accordingly, pursuant to the rulemaking authority vested in the

Attorney General in 5 U.S.C. 552(a) and delegated to the Director,

Bureau of Prisons in 28 CFR 0.96(p), parts 545 and 550 in subchapter C

of 28 CFR, chapter V are amended as set forth below.

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 550--DRUG PROGRAMS

1. The authority citation for 28 CFR part 550 is added to read as

follows, and all other authority citations within the part are removed:

Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042,

4081, 4082 (Repealed in part as to offenses committed on or after

November 1, 1987), 4251-4255, 5006-5024 (repealed October 12, 1984

as to conduct occurring after that date), 5039; 28 U.S.C. 509, 510;

28 CFR 0.95-0.99.

2. Subpart F, consisting of Secs. 550.50 and 550.51, is revised to

consist of Secs. 550.50 through 550.58 as follows:

Subpart F--Drug Abuse Treatment Programs

Sec.

550.50 Purpose and scope.

550.51 Institution organization/staff roles and responsibilities.

550.52 Admission and Orientation program.

550.53 Screening and referral.

550.54 Requirements for drug abuse education course.

550.55 Institution residential drug abuse treatment program.

550.56 Incentives for residential drug abuse treatment program

participation.

550.57 Non-residential drug abuse treatment program.

550.58 Transitional services.

Subpart F--Drug Abuse Treatment Programs

Sec. 550.50 Purpose and scope.

The Bureau of Prisons provides, to the extent practicable,

appropriate drug abuse treatment programs to inmates.

Sec. 550.51 Institutional organization/staff roles and

responsibilities.

(a) Drug Abuse Treatment Coordinator. The Warden shall designate a

drug abuse treatment coordinator for his/her institution.

(b) Drug Abuse Treatment Specialist. All institutions shall employ

a drug abuse treatment specialist. The drug abuse treatment specialist

is responsible for providing drug abuse education and non-residential

drug abuse treatment services to the inmate population, under the

supervision of the drug abuse treatment coordinator. In institutions

with residential drug abuse treatment programs, additional drug abuse

treatment specialist staff are employed to provide treatment services

on the residential drug abuse treatment unit.

Sec. 550.52 Admission and Orientation program.

Drug abuse treatment coordinators at all institutions shall ensure

that inmates are informed about local and Bureau-wide drug abuse

programming and treatment opportunities during the Admission and

Orientation program.

Sec. 550.53 Screening and referral.

A psychologist or drug abuse treatment specialist shall interview

all new institution admissions for drug abuse problems. A record review

will be performed by a case manager in the normal course of his/her

duties. Based on these reviews and interviews, drug abuse treatment

staff shall make an appropriate drug education/treatment referral.

Sec. 550.54 Requirements for drug abuse education course.

(a)(1) Mandatory participation. An inmate is required to

participate in the drug abuse education course if he/she has been

sentenced or returned to custody as a violator after September 30, 1991

and it is determined by unit and/or drug abuse treatment staff through

a combination of interview and file review that:

(i) There is evidence in the Presentence Investigation that alcohol

or other drug use contributed to the commission of the instant offense;

(ii) Alcohol or other drug use was a reason for violation either of

supervised release, including parole, or BOP community status (CCC

placement) for which the inmate is now incarcerated; or

(iii) The inmate was recommended for drug programming during

incarceration by the sentencing judge.

(2) Voluntary participation. Inmates who are not required by

paragraph (a)(1) of this section to participate in the drug abuse

education course may request to participate voluntarily in the drug

abuse education course when participant space is available. Volunteers

must have the approval of the drug abuse treatment coordinator.

Priority consideration shall be given to those inmates whose

participation has been recommended by unit or treatment staff.

(b) Sanctions. An inmate who is required by paragraph (a)(1) of

this section to participate in the drug abuse education course and who

refuses participation, withdraws, is expelled, or otherwise fails to

meet the attendance and examination requirements shall be held at the

lowest pay grade (Grade 4) within the institution and shall be

ineligible for community programs. Inmates may be permitted to receive

work promotions during their participation or while on a ``waiting

list'' for the drug abuse education course. The Warden may make

exceptions to the provisions of this paragraph for good cause with

reasons for such exceptions documented in writing.

(c) Exemptions. An inmate may be exempted from the required drug

abuse education course due to cognitive impairment or other learning

disabilities only after evaluation and recommendation by a

psychologist. An inmate may also be exempted from the drug abuse

education course if that inmate volunteers for, enters and completes a

residential drug abuse treatment program or if he/she completes a

structured drug abuse treatment program at one of the Bureau of

Prisons' Intensive Confinement Centers (ICC).

(d) Written consent. All inmates who enter the drug abuse education

course (whether as mandatory or as voluntary participants) are required

to sign an agreement to participate prior to admission to the course.

(e) Completion. Completion of the drug abuse education course

requires attendance and participation during course sessions and a

passing grade on an examination given at the end of the course. Inmates

required to participate in this course ordinarily are provided at least

three chances to pass the final examination before privileges are lost

or sanctions (see paragraph (b) of this section) are invoked. A

certificate of achievement will be awarded to all who successfully

complete the program. A copy of this certificate will be forwarded to

the unit team for placement in the inmate's central file.

Sec. 550.55 Institution residential drug abuse treatment program.

Residential drug abuse treatment is available at selected Bureau of

Prisons institutions. It is an intensive, unit-based treatment

experience provided by a team of drug abuse treatment specialists and

the drug abuse treatment coordinator.

(a) Eligibility. The following criteria must be met for an inmate

to be recommended and/or approved for the residential drug abuse

treatment program.

(1) The inmate must have a documented drug abuse problem.

(2) The inmate must have no serious mental impairment which would

substantially interfere with or preclude full participation in the

program.

(3) The inmate must sign an agreement acknowledging his/her program

responsibility.

(4) Ordinarily, the inmate must be within thirty-six months of

release.

(5) The security level of the residential program institution must

be appropriate for the inmate.

(b) Application/Referral/Placement. Participation in the

residential drug abuse treatment program is voluntary. An inmate may be

referred for treatment by unit and/or drug treatment staff or apply for

the program by submitting a request to a staff member (ordinarily, a

member of the inmate's unit team or the drug abuse treatment

coordinator). The decision on placement is made by the drug abuse

treatment coordinator.

(c) Withdrawal/expulsion. An inmate may withdraw voluntarily from

the program. The drug abuse treatment coordinator may remove an inmate

from the program based upon disruptive or negative behavior. Withdrawal

or removal from the residential program may result in the inmate's

being returned to his/her prior institution (when the inmate had been

specifically transferred for the purpose of program participation) and/

or return of tangible incentives previously achieved.

Sec. 550.56 Incentives for residential drug abuse treatment program

participation.

(a) An inmate may receive incentives for his or her satisfactory

involvement in the residential program. These incentives may include,

but are not limited to, the following.

(1) Limited financial awards, based upon the inmate's achievement/

completion of program phases.

(2) Consideration for the maximum period of time (currently 180

days) in a Community Corrections Center placement, provided the inmate

is otherwise eligible for this designation.

(3) Local institution incentives such as preferred living quarters

or special recognition privileges.

(b) An inmate must meet his/her financial program responsibility

obligations (see 28 CFR part 545) prior to being able to receive an

incentive for his/her residential program participation.

Sec. 550.57 Non-residential drug abuse treatment program.

Non-residential drug abuse treatment is provided at all

institutions and ordinarily consists of individual and/or group

counseling and self-help programming provided through the institution's

Psychology Services department.

(a) Eligibility. The following criteria must be met for an inmate

to be recommended or approved for a non-residential drug abuse

treatment program.

(1) The inmate must have a documented drug abuse problem.

(2) The inmate must have no serious mental impairment which would

substantially interfere with or preclude full participation in the

program.

(3) The inmate must sign an agreement acknowledging his/her program

responsibility.

(b) Application/Referral/Placement. Participation in the non-

residential drug abuse treatment program is voluntary. An inmate may be

referred for treatment by unit and/or drug treatment staff or may apply

for these programs by submitting a request to a staff member

(ordinarily, a member of the inmate's unit team or the drug abuse

treatment coordinator). The decision on placement is made by the drug

abuse treatment coordinator.

(c) Withdrawal/expulsion. An inmate may withdraw voluntarily from

the program. The drug abuse treatment coordinator may remove an inmate

from the program based upon disruptive or negative behavior.

Sec. 550.58 Transitional services.

(a) Transitional treatment programming is required for all inmates

completing an institution's residential treatment program. Transitional

treatment includes treatment provided to inmates who, upon completing

the residential program, return to the general population of that or

another institution. An inmate's refusal to participate in this program

is considered a program failure and disqualifies the inmate for any

additional incentives consideration, and may result in the inmate's

redesignation.

(b) An inmate who successfully completes a residential drug abuse

program and who, based on eligibility, is transferred to a Community

Corrections Center (CCC), is required to participate in a community-

based treatment program each week, in addition to the required

employment and other program activities of the CCC. The inmate's

failure to meet the requirements of treatment may result in the

inmate's being returned to the institution for refusing a program

assignment.

(c) Staff may offer an inmate who has not been involved in the

institution's drug abuse treatment program the opportunity to become

involved in the transitional drug treatment program as part of the

inmate's CCC placement. In addition, with the drug abuse treatment

coordinator's approval, an inmate may volunteer and be accepted for

transitional drug treatment programming.

3. The authority citation for 28 CFR part 545 continues to read as

follows:

Authority: 5 U.S.C. 301; 18 U.S.C. 3013, 3571, 3572, 3621, 3622,

3624, 3663, 4001, 4042, 4081, 4082 (Repealed in part as to offenses

committed on or after November 1, 1987), 4126, 5006-5024 (Repealed

October 12, 1984 as to offenses committed after that date), 5039; 28

U.S.C. 509, 510; 28 CFR 0.95-0.99.

4. In Sec. 545.11, a new paragraph (d)(11) is added to read as

follows:

Sec. 545.11 Procedures.

* * * * *

(d) * * *

(11) The inmate will not receive an incentive for participation in

residential drug treatment programs.

[FR Doc. 94-26111 Filed 10-20-94; 8:45 am]

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