[Federal Register Volume 76, Number 131 (Friday, July 8, 2011)]
[Rules and Regulations]
[Pages 40229-40233]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17160]
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DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 549
[BOP-1088-F]
RIN 1120-AB20
Psychiatric Evaluation and Treatment
AGENCY: Bureau of Prisons, Justice.
ACTION: Final rule.
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SUMMARY: In this document, the Bureau of Prisons (Bureau) finalizes
regulations on providing psychiatric treatment and medication to
inmates. These revised regulations are clarified and updated to reflect
current caselaw.
DATES: This rule is effective on August 12, 2011.
FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General
Counsel, Bureau of Prisons, phone (202) 307-2105.
SUPPLEMENTARY INFORMATION: The Bureau finalizes regulations on
[[Page 40230]]
providing psychiatric treatment and medication to inmates. We first
published a proposed regulation document on this subject in the Federal
Register on December 29, 2003 (68 FR 74892). We then withdrew that
proposed regulation document and proposed revised regulations on June
16, 2008 (73 FR 33957). We received four comments, which we address
below.
Two commenters addressed Sec. 549.45(b) of the proposed
regulation, which states that, ``[p]ursuant to 18 U.S.C. Sec. 4042,
the Bureau is authorized to provide for the safekeeping, care, and
subsistence, of all persons charged with offenses against the United
States, or held as witnesses or otherwise. Accordingly, if an examiner
determines pursuant to Sec. 549.43 of this subpart that an inmate not
subject to hospitalization pursuant to 18 U.S.C. Chapter 313 should be
hospitalized for psychiatric care or treatment, and the inmate is
unwilling or unable to consent, the Bureau will provide the inmate with
an administrative hearing to determine whether hospitalization for
psychiatric care or treatment is warranted. The hearing will comply
with the applicable procedural safeguards set forth in Sec.
549.46(a).''
The commenters believe that ``the administrative hearing process''
under this section ``is a standard that provides less procedural
protection to the inmate than does a court determination.'' The
commenters felt that ``such a standard is unreasonable and unfair to
the inmates covered by Sec. 549.45(b)'' because these inmates may
include ``material witnesses and other detainees who may not have been
convicted,'' and are, therefore, ``entitled to a level of review equal
to or surpassing that of sentenced inmates.''
In response, we note that proposed Sec. 549.45 states that a court
determination is necessary for involuntary hospitalization or
commitment of inmates pursuant to 18 U.S.C. Chapter 313, who are in
need of psychiatric care or treatment, but are unwilling or unable to
voluntarily consent. Section 4245 in that chapter specifically provides
for involuntary hospitalization by court order of a person serving a
sentence of imprisonment if needed for psychiatric care or treatment.
The necessity of a court determination for these types of inmates is,
therefore, prescribed by statute.
In contrast, however, no court determination is prescribed by
statute with regard to involuntary hospitalization of inmates who are
not subject to hospitalization under 18 U.S.C. 4245 (because not
serving a sentence of imprisonment), such as alien detainees subject to
an order of deportation, exclusion or removal, material witnesses,
contempt of court commitments, etc.
Nevertheless, the Director has chosen to provide administrative due
process with regard to involuntary hospitalization of such inmates,
``[b]ecause prisoners facing involuntary transfer to a mental hospital
are threatened with immediate deprivation of liberty interests they are
currently enjoying, and because of the inherent risk of a mistaken
transfer,'' adhering to the principles set forth in Vitek v. Jones, 445
U.S. 480 at 495, 100 S.Ct. 1254 at 1265 (1980).
We note that the availability of this administrative hearing
procedure in appropriate cases does not limit the Bureau's ability to
seek judicial hospitalization or commitment of inmates under any
applicable provision of Chapter 313, such as judicial commitment of
inmates, whether sentenced or unsentenced, as sexually dangerous
persons under 18 U.S.C. 4248.
However, because the commenters appear to question or misunderstand
the due process procedures that the Bureau implements through this
final rule that specifically apply to the involuntary hospitalization
of inmates who are not subject to hospitalization under 18 U.S.C. 4245,
we alter Sec. 549.45(b) as follows: We delete the reference to the due
process procedures in Sec. 549.46(a) and simply restate them, tailored
for reference to involuntary hospitalization instead of involuntary
administration of psychiatric medication, in the relevant regulation,
Sec. 549.45(b).
Also, the American Psychiatric Association (APA) and the American
Civil Liberties Union (ACLU) commented regarding the Bureau's use of
the phrase `qualified health services staff' in Sec. 549.44 of the
proposed regulation. The APA recommended that the Bureau ``clarify this
section by either revising the proposed language in the regulation or
issuing a policy guide which defines which personnel are considered
`qualified health services staff' for the purposes of these sections.''
The ACLU provided a similar comment. The Bureau will issue a policy
guide, as suggested by the APA, which will clarify the qualifications
for staff with regard to voluntary hospitalization in a suitable
facility for psychiatric care or treatment, and voluntary
administration of psychiatric medication. Bureau policy guides are
called Program Statements, and are designed specifically to provide
more detailed staff guidance with regard to implementing Bureau
regulations, policies, and programs. Because Program Statements are the
primary vehicle for staff guidance, it would be appropriate to detail
health services staff qualifications in the relevant Bureau Program
Statements.
Also, the APA would ``urge that [the Bureau] state that only
licensed physicians are qualified to make decisions about the
administration of psychopharmacologic medications and that, when
possible, a psychiatrist should be consulted. This clarification would
provide assurance that inmates are receiving appropriate mental health
treatment and that consent to any hospitalization or medication is
truly warranted and voluntary and meets state and Federal law
requirements.'' Likewise, the ACLU commented that ``the regulations
should be amended to clarify that the exception authorizing more
cursory procedures for emergencies requires that any treatment be
`medically' appropriate, even in an emergency.''
In response, we state that Bureau policy currently requires that
psychiatric medications be prescribed only by Bureau medical health
professionals that have a permanent, full, and unrestricted license to
practice medicine in a state, District of Columbia, the Commonwealth of
Puerto Rico, or a territory of the United States. Bureau policy on
pharmacy services is predicated on the requirement that the use of
psychiatric medications and controlled substances be restricted to
physicians only and prescribed only when medically appropriate.
Further, if an order for psychiatric medication is prepared or written
by a mid-level practitioner (Physician's Assistant or Nurse
Practitioner), it must be signed by a licensed physician before it can
be filled by a pharmacist.
Another commenter suggested that the Bureau ``recognize psychiatric
advance practice nurses as part of the treatment team in correctional
facilities.'' While the Bureau does utilize nurse practitioners,
physician's assistants, and nurses, as stated above, any prescription
for psychiatric medication must be signed by a licensed physician.
For the aforementioned reasons, we now finalize the proposed rule
published on June 16, 2008 (73 FR 33957), with minor changes for
clarity.
Executive Order 12866
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review'', section
1(b), Principles of
[[Page 40231]]
Regulation. The Director has determined that this regulation is not a
``significant regulatory action'' under Executive Order 12866, section
3(f), and accordingly this regulation has not been reviewed by the
Office of Management and Budget.
Executive Order 13132
This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, under Executive Order 13132,
we determine that this regulation does not have sufficient Federalism
implications to warrant the preparation of a Federalism Assessment.
Regulatory Flexibility Act
The Director, under the Regulatory Flexibility Act (5 U.S.C.
605(b)), reviewed this regulation and by approving it certifies that it
will not have a significant economic impact upon a substantial number
of small entities for the following reasons: This regulation pertains
to the correctional management of offenders committed to the custody of
the Attorney General or the Director, and its economic impact is
limited to the Bureau's appropriated funds.
Unfunded Mandates Reform Act of 1995
This regulation will not result in the expenditure by State, local
and Tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This regulation is not a major rule as defined by Sec. 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. This
regulation will not result in an annual effect on the economy of
$100,000,000 or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
List of Subjects in 28 CFR Part 549
Prisoners.
Thomas R. Kane,
Acting Director, Federal Bureau of Prisons.
Under the rulemaking authority vested in the Attorney General in 5
U.S.C. 552(a) and delegated to the Director, Bureau of Prisons, we
amend 28 CFR part 549 as follows.
PART 549--MEDICAL SERVICES
0
1. Revise the authority citation for 28 CFR part 549 to read as
follows:
Authority: 5 U.S.C. 301; 10 U.S.C. 876b; 18 U.S.C. 3621, 3622,
3524, 4001, 4005, 4042, 4045, 4081, 4082 (Repealed in part as to
offenses committed on or after November 1, 1987), Chapter 313, 5006-
5024 (Repealed October 12, 1984 as to offenses committed after that
date), 5039; 28 U.S.C. 509, 510.
0
2. Revise subpart C of part 549 to read as follows:
Subpart C--Psychiatric Evaluation and Treatment
Sec.
549.40 Purpose and scope.
549.41 Hospitalization in a suitable facility.
549.42 Use of psychiatric medications.
549.43 Transfer for psychiatric or psychological examination.
549.44 Voluntary hospitalization in a suitable facility for
psychiatric care or treatment and voluntary administration of
psychiatric medication.
549.45 Involuntary hospitalization in a suitable facility for
psychiatric care or treatment.
549.46 Procedures for involuntary administration of psychiatric
medication.
Subpart C--Psychiatric Evaluation and Treatment
Sec. 549.40 Purpose and scope.
(a) This subpart describes procedures for voluntary and involuntary
psychiatric evaluation, hospitalization, care, and treatment, in a
suitable facility, for persons in Bureau of Prisons (Bureau) custody.
These procedures are authorized by 18 U.S.C. Chapter 313 and 18 U.S.C.
4042.
(b) This subpart applies to inmates in Bureau custody, as defined
in 28 CFR part 500.
Sec. 549.41 Hospitalization in a suitable facility.
As used in 18 U.S.C. Chapter 313 and this subpart,
``hospitalization in a suitable facility'' includes the Bureau's
designation of inmates to medical referral centers or correctional
institutions that provide the required care or treatment.
Sec. 549.42 Use of psychiatric medications.
Psychiatric medications will be used only for treatment of
diagnosable mental illnesses and disorders, and their symptoms, for
which such medication is accepted treatment. Psychiatric medication
will be administered only after following the applicable procedures in
this subpart.
Sec. 549.43 Transfer for psychiatric or psychological examination.
The Bureau may transfer an inmate to a suitable facility for
psychiatric or psychological examination to determine whether
hospitalization in a suitable facility for psychiatric care or
treatment is needed.
Sec. 549.44 Voluntary hospitalization in a suitable facility for
psychiatric care or treatment, and voluntary administration of
psychiatric medication.
(a) Hospitalization. An inmate may be hospitalized in a suitable
facility for psychiatric care or treatment after providing informed and
voluntary consent when, in the professional medical judgment of
qualified health services staff, such care or treatment is required and
prescribed.
(b) Psychiatric medication. An inmate may also provide informed and
voluntary consent to the administration of psychiatric medication that
complies with the requirements of Sec. 549.42 of this subpart.
(c) Voluntary consent. An inmate's ability to provide informed and
voluntary consent for both hospitalization in a suitable facility for
psychiatric care or treatment, and administration of psychiatric
medications, will be assessed by qualified health services staff and
documented in the inmate's medical record. Additionally, the inmate
must sign a consent form to accept hospitalization in a suitable
facility for psychiatric care or treatment and the administration of
psychiatric medications. These forms will be maintained in the inmate's
medical record.
Sec. 549.45 Involuntary hospitalization in a suitable facility for
psychiatric care or treatment.
(a) Hospitalization of inmates pursuant to 18 U.S.C. Chapter 313. A
court determination is necessary for involuntary hospitalization or
commitment of inmates pursuant to 18 U.S.C. Chapter 313, who are in
need of psychiatric care or treatment, but are unwilling or unable to
voluntarily consent.
(b) Hospitalization of inmates not subject to hospitalization
pursuant to 18 U.S.C. chapter 313. Pursuant to 18
[[Page 40232]]
U.S.C. 4042, the Bureau is authorized to provide for the safekeeping,
care, and subsistence, of all persons charged with offenses against the
United States, or held as witnesses or otherwise. Accordingly, if an
examiner determines pursuant to Sec. 549.43 of this subpart that an
inmate not subject to hospitalization pursuant to 18 U.S.C. chapter 313
should be hospitalized for psychiatric care or treatment, and the
inmate is unwilling or unable to consent, the Bureau will provide the
inmate with an administrative hearing to determine whether
hospitalization for psychiatric care or treatment is warranted. The
hearing will provide the following procedural safeguards:
(1) The inmate will not be involuntarily administered psychiatric
medication before the hearing except in the case of psychiatric
emergencies, as defined in Sec. 549.46(b)(1).
(2) The inmate must be provided 24-hours advance written notice of
the date, time, place, and purpose, of the hearing, including an
explanation of the reasons for the proposal to hospitalize the inmate
for psychiatric care or treatment.
(3) The inmate must be informed of the right to appear at the
hearing, to present evidence, to have a staff representative, to
request witnesses, and to request that witnesses be questioned by the
staff representative or by the person conducting the hearing. If the
inmate does not request a staff representative, or requests a staff
representative with insufficient experience or education, or one who is
not reasonably available, the institution mental health division
administrator must appoint a qualified staff representative.
(4) The hearing is to be conducted by a psychiatrist other than the
attending psychiatrist, and who is not currently involved in the
diagnosis or treatment of the inmate.
(5) Witnesses should be called if they are reasonably available and
have information relevant to the inmate's mental condition or need for
hospitalization. Witnesses who will provide only repetitive information
need not be called.
(6) A treating/evaluating psychiatrist/clinician, who has reviewed
the case, must be present at the hearing and must present clinical data
and background information relative to the inmate's need for
hospitalization. Members of the treating/evaluating team may also be
called as witnesses at the hearing to provide relevant information.
(7) The psychiatrist conducting the hearing must determine whether
involuntary hospitalization is necessary because the inmate is
presently suffering from a mental disease or defect for the treatment
of which he is in need of custody for care or treatment in a suitable
facility.
(8) The psychiatrist must prepare a written report regarding the
initial decision. The inmate must be promptly provided a copy of the
initial decision report, and informed that he/she may appeal it to the
institution's mental health division administrator. The inmate's
appeal, which may be handwritten, must be submitted within 24 hours
after receipt of the hearing officer's report. Upon request of the
inmate, the staff representative will assist the inmate in preparing
and submitting the appeal.
(9) If the inmate appeals the initial decision, hospitalization
must not occur before the administrator issues a decision on the
appeal. The inmate's appeal will ordinarily be reviewed by the
administrator or his designee within 24 hours of its submission. The
administrator will review the initial decision and ensure that the
inmate received all necessary procedural protections, and that the
justification for hospitalization is appropriate.
(c) Psychiatric medication. Following an inmate's involuntary
hospitalization for psychiatric care or treatment as provided in this
section, psychiatric medication may be involuntarily administered only
after following the administrative procedures provided in Sec. 549.46
of this subpart.
Sec. 549.46 Procedures for involuntary administration of psychiatric
medication.
Except as provided in paragraph (b) of this section, the Bureau
will follow the administrative procedures of paragraph (a) of this
section before involuntarily administering psychiatric medication to
any inmate.
(a) Procedures. When an inmate is unwilling or unable to provide
voluntary written informed consent for recommended psychiatric
medication, the inmate will be scheduled for an administrative hearing.
The hearing will provide the following procedural safeguards:
(1) Unless an exception exists as provided in paragraph (b) of this
section, the inmate will not be involuntarily administered psychiatric
medication before the hearing.
(2) The inmate must be provided 24-hours advance written notice of
the date, time, place, and purpose, of the hearing, including an
explanation of the reasons for the psychiatric medication proposal.
(3) The inmate must be informed of the right to appear at the
hearing, to present evidence, to have a staff representative, to
request witnesses, and to request that witnesses be questioned by the
staff representative or by the person conducting the hearing. If the
inmate does not request a staff representative, or requests a staff
representative with insufficient experience or education, or one who is
not reasonably available, the institution mental health division
administrator must appoint a qualified staff representative.
(4) The hearing is to be conducted by a psychiatrist other than the
attending psychiatrist, and who is not currently involved in the
diagnosis or treatment of the inmate.
(5) Witnesses should be called if they are reasonably available and
have information relevant to the inmate's mental condition or need for
psychiatric medication. Witnesses who will provide only repetitive
information need not be called.
(6) A treating/evaluating psychiatrist/clinician, who has reviewed
the case, must be present at the hearing and must present clinical data
and background information relative to the inmate's need for
psychiatric medication. Members of the treating/evaluating team may
also be called as witnesses at the hearing to provide relevant
information.
(7) The psychiatrist conducting the hearing must determine whether
involuntary administration of psychiatric medication is necessary
because, as a result of the mental illness or disorder, the inmate is
dangerous to self or others, poses a serious threat of damage to
property affecting the security or orderly running of the institution,
or is gravely disabled (manifested by extreme deterioration in personal
functioning).
(8) The psychiatrist must prepare a written report regarding the
initial decision. The inmate must be promptly provided a copy of the
initial decision report, and informed that he/she may appeal it to the
institution's mental health division administrator. The inmate's
appeal, which may be handwritten, must be submitted within 24 hours
after receipt of the hearing officer's report. Upon request of the
inmate, the staff representative will assist the inmate in preparing
and submitting the appeal.
(9) If the inmate appeals the initial decision, psychiatric
medication must not be administered before the administrator issues a
decision on the appeal, unless an exception exists as provided in
paragraph (b) of this section. The inmate's appeal will ordinarily be
reviewed by the administrator or his designee within 24
[[Page 40233]]
hours of its submission. The administrator will review the initial
decision and ensure that the inmate received all necessary procedural
protections, and that the justification for administering psychiatric
medication is appropriate.
(10) If an inmate was afforded an administrative hearing which
resulted in the involuntary administration of psychiatric medication,
and the inmate subsequently consented to the administration of such
medication, and then later revokes his consent, a follow-up hearing
will be held before resuming the involuntary administration of
psychiatric medication. All such follow-up hearings will fully comply
with the procedures outlined in paragraphs (a)(1) through (10) of this
section.
(b) Exceptions. The Bureau may involuntarily administer psychiatric
medication to inmates in the following circumstances without following
the procedures outlined in paragraph (a) of this section:
(1) Psychiatric emergencies.
(i) During a psychiatric emergency, psychiatric medication may be
administered only when the medication constitutes an appropriate
treatment for the mental illness or disorder and its symptoms, and
alternatives (e.g., seclusion or physical restraint) are not available
or indicated, or would not be effective. If psychiatric medication is
still recommended after the psychiatric emergency, and the emergency
criteria no longer exist, it may only be administered after following
the procedures in Sec. Sec. 549.44 or 549.46 of this subpart.
(ii) For purposes of this subpart, a psychiatric emergency exists
when a person suffering from a mental illness or disorder creates an
immediate threat of:
(A) Bodily harm to self or others;
(B) Serious destruction of property affecting the security or
orderly running of the institution; or
(C) Extreme deterioration in personal functioning secondary to the
mental illness or disorder.
(2) Court orders for the purpose of restoring competency to stand
trial. Absent a psychiatric emergency as defined above, Sec. 549.46(a)
of this subpart does not apply to the involuntary administration of
psychiatric medication for the sole purpose of restoring a person's
competency to stand trial. Only a Federal court of competent
jurisdiction may order the involuntary administration of psychiatric
medication for the sole purpose of restoring a person's competency to
stand trial.
[FR Doc. 2011-17160 Filed 7-7-11; 8:45 am]
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