RULES AND REGULATIONS

Title 37--LAW

DEPARTMENT OF CORRECTIONS

[37 PA. CODE CH. 95]

County Correctional Institutions

[38 Pa.B. 5627]
[Saturday, October 11, 2008]

   The Department of Corrections (Department) amends Chapter 95, relating to county correctional institutions, to read as set forth in Annex A.

A.  Statutory Authority

   The Department is acting under the authority of section 506 of The Administrative Code of 1929 (71 P. S. § 186). Under section 506 of The Administrative Code of 1929, the Department is empowered to prescribe rules and regulations for the performance of the Department's business. A portion of the Department's business includes establishing standards for county jails and prisons, including physical facilities and standards for correctional programs of treatment, education and rehabilitation of inmates. See section 3(3) of the act of December 27, 1965 (P. L. 1237, No. 502) (Act 502) (61 P. S. § 460.3(3)). The Department is also empowered by section 3(4) of Act 502 to inspect county jails and to classify them, in accordance with the standards for county jails and prisons the Department adopted, as eligible to receive prisoners sentenced to maximum terms of 6 months or more but less than 5 years.

B.  Purpose of the Regulation

   This final-form rulemaking represents the second phase of the Department's modernizing outdated minimum standards for county prisons with regard to the physical facilities, safety and security standards, treatment programs and other correctional practices. This final-form rulemaking completely replaces 15 sections of minimum standards that have remained unchanged since promulgated in 1979. Those sections are replaced with standards consistent with current, recognized professional standards for adult local detention facilities. The final-form rulemaking also creates a new section regarding telephone communication (§ 95.233a (relating to visiting prisoners)) while an obsolete section of standards regarding community rescinding involvement (§ 95.244 (relating to community involvement)). Additionally, six other sections of minimum standards are amended to make those sections consistent with current, recognized professional standards for adult local detention facilities.

   In addition to updating outdated standards, the final-form rulemaking also accomplishes a number of other important objectives. First, the final-form rulemaking establishes a formalized inspection and inspection report procedure. Second, the final-form rulemaking specifically identifies minimum standards considered essential to the safety and security of the county prison, prison staff, inmates and the public. Third, the final-form rulemaking allows the Secretary of the Department (Secretary) to act in circumstances that require more immediate action than the annual inspection process. The rulemaking allows the Secretary to order a vulnerability analysis of the county prison when a final inspection report finds violations of the essential safety and security standards and finds that those violations may immediately impact the safety and security of the county prison, prison staff, inmates or the public. Fourth, a hearing process is established so that the Department can fairly and clearly meet its statutory duty to determine if a county prison should be classified as ineligible to receive prisoners sentenced to maximum terms of 6 months or more but less than 5 years. The final-form rulemaking limits use of the hearing classification process to when a county prison has been in repeated violation of the same essential safety and security standards for three consecutive annual inspections or when a vulnerability analysis reports finds violations of the essential safety and security standards may present an immediate threat to the safety and security of the facility, the staff, inmates or the public. In summary, the inspection report process and the hearing procedures are intended to assist county prisons in meeting the essential minimum safety and security standards, encourage county prisons in meeting all of the minimum standards and to limit a classification of ineligibility to receive longer sentenced prisoners to only the most serious of safety and security violations.

C.  Public Comment

   The Department received over 30 sets of public comments. A number of the public comments submitted were from local officials directly involved in the management of county prisons such as county prison administrators, county prison boards and county commissioners, as well as Statewide organizations representing those officials that included the County Commissioners Association of Pennsylvania (CCAP), the Pennsylvania County Prison Warden's Association and the Pennsylvania Sheriff's Association. Public comments were also received from prisoner advocate organizations including the Pennsylvania Prison Society, Pennsylvania Institutional Law Project and Justice and Mercy, Inc., as well as, individuals working inside some of the county prisons. The Independent Regulatory Review Commission (IRRC) and four State legislators also submitted comments.

   Through a cooperative effort between CCAP and the Department, a County-State Liaison Committee (Committee) was previously established to discuss issues of shared concern between the Department and county prisons and to foster a productive working relationship between the State and local prison officials. The Committee meets quarterly. Since the close of the public comment period, the Committee provided a venue for review of the proposed rulemaking, the public comments and suggestions for improvements to the regulations. The public comments and the Committee discussions were tremendously helpful in developing the final-form regulations.

D.  Summary of Comments, Responses and Major Changes to Proposed Rulemaking

   Following is a summary of the major comments received following publication of the proposed rulemaking and the Department's response to those comments. A summary of major changes from the proposed rulemaking is also included.

   1.  Fiscal impact of the regulations

   A number of commentators disagreed with the Department's statement in the Preamble that the proposed rulemaking is not expected to have a significant fiscal impact upon the Commonwealth, its political subdivisions or the general public. The most numerous comments regarding the fiscal impact of the proposed rulemaking concerned §§ 95.241(1)(ii) and 95.243(2) and (6) (relating to security; and treatment services).

   Comment--Section 95.241(1)(ii)--This subparagraph required that the county prison conduct an initial staffing analysis to determine the staffing allotment and post assignments to safely operate the prison. The proposed language further required that the ''results of this annual staffing analysis must serve as the required staffing allotment designated for the prison.'' The commentators objected to this language because they believed it would have a significant fiscal impact by requiring the hiring of additional staff.

   Response--The Department agreed that the final determination as to the number of staff hired by the prison should ultimately be a local decision based on resources and all other relevant factors. The next to the last sentence of this subparagraph in the proposed rulemaking was therefore deleted. The prison administrator, or a designee, is free to conduct that analysis in the manner deemed most appropriate to the local prison provided relief factors for each classification of staff are considered.

   Comment--Section 95.243(2)--Numerous comments were received regarding the requirement in paragraph (2) that treatment services must include programming in the four areas of education, social services, alcohol and other drugs and counseling. The comments all asserted that these requirements represented an unfunded mandate for counties to provide various treatment services and that the decisions as to what services to provide should be left to the local prison authorities.

   Response--The Department believes that the requirements of paragraph (2) do not represent a significant departure from the existing minimum requirements of Chapter 95 (relating to county correctional institutions) regarding treatment programming or from the current practice in virtually all of the 64 counties operating county prisons in this Commonwealth. More importantly, the Department believes these requirements allow greater flexibility to the county prison in providing treatment services than the existing standards by permitting local prison authorities to allocate financial resources for the services most appropriate to the county prison's inmate population.

   When comparing the existing standards to the final-form regulation, it must be noted that the term ''counseling services'' is defined very broadly in paragraph (1) of the existing standard. The third sentence of that paragraph states ''[C]counseling shall include group and individual counseling of a general nature; vocational rehabilitation counseling; social casework and group work, including self-help groups such as Alcoholic Anonymous and similar groups; testing and clinical psychological services; and psychiatric services.'' That broad description of ''counseling'' essentially includes some aspect of the four areas of treatment services required by paragraph (2) of the final-form regulation as those four areas are defined in § 95.220a. For example, ''[E]education'' is defined as ''[A]a treatment service using formal academic education or a vocational training activity designed to improve knowledge or employment capability, or both.'' (emphasis added) ''[S]social services'' is defined as ''[A]a treatment service designed to promote the welfare of the community and inmate, as through aid for physically and mentally handicapped, health maintenance, family development and employment opportunities.'' ''[A]alcohol and other drugs treatment'' is defined as ''[A]a treatment service designed to address the impact and ramifications of use or abuse of alcohol and other drugs so as to prevent illegal and/or destructive conduct and avoid addiction.'' ''[C]counseling'' is defined as ''[A]a treatment service using planned interpersonal relationships to promote social adjustment and provide opportunities to express feelings verbally with the goal of resolving the individuals problems.'' An element of all of these four treatment service areas is part of the definition as to what must be included in ''counseling'' under the existing standard.

   The existing standard mandates the specific number of hours of ''counseling'' (again, as broadly defined) that must be provided based solely on the inmate population of the facility. The existing standard also mandates, to some degree, the treatment staff that must be available to provide the counseling services. Conversely, the final-form regulation does not mandate the number of hours these different treatment services must be provided, but only that some form of programming must be provided in these areas. Additionally, the final-form regulation does not mandate the manner in which the treatment services in these four areas must be provided. As with the existing standard, the final-form regulation allows these services to be provided by a treatment professional employed by the prison, someone under contract or a volunteer.

   The Department believes that this new standard is not only consistent with the current recognized professional standards for adult local detention facilities, but also with the current practices in most all of this Commonwealth's county prisons. For example, all county prisons currently have some form of alcohol and other drug programming, at a minimum, in the form of 12 step programs for alcohol or drug, or both, addiction. All county prisons currently have some form of counseling services. Perhaps not all inmates, particularly short-term inmates, would have access to those services, but the final-form regulation does not mandate that. The final-form regulation leaves the decision as to which inmates receive what services largely up to the county prison.

   Regarding education services, all county jails would currently be meeting the standard in the final-form regulation because all county jails make programming available to inmates under 21 years of age to prepare for the general education development examination as mandated by State law.

   Comment--Section 95.243(6)--A number of commentators objected to the requirement that a comprehensive treatment needs assessment be conducted on each inmate within 14 days following admission to the jail. The commentators asserted that such a requirement was inappropriate to the nature of short-term offenders housed in county jails and would necessitate the hiring of additional staff thereby significantly increasing the costs to the county without funding to pay for the additional expenses.

   Response--Upon review of these comments and additional discussions with the Committee, the Department has substantially revised the minimum requirements for conducting a treatment needs assessment. The Department concurs that requiring an exhaustive treatment needs assessment for short-term inmates may strain county resources and result in the opposite of the intended purpose which is to make treatment services available to as many inmates as appropriate and possible. The final-form standard has therefore been changed so that paragraph (6) only requires that a treatment needs assessment be conducted within 90 days of an inmate's admission. Additionally, the follow-up treatment services recommended by the needs assessment must begin within 45 days of the needs assessment. The Department and members of the Committee reached a consensus that this revision will appropriately exclude short-term inmates (those with sentences under 3 months) from the requirement. The revision will substantially reduce or avoid any additional financial burden to the counties in conducting treatment needs assessments.

   The Department also simplified the conducting of a treatment needs assessment by eliminating the more prescriptive requirements of what must be included in an assessment as listed in paragraph (6)(i)--(v). The elimination of the prescriptive requirements gives the counties flexibility in determining how those assessments should be conducted.

   Comment--Additional paperwork requirements--Some commentators asserted generally that the proposed rulemaking would cause a significant burden because of required additional paperwork.

   Response--There are some new provisions in the final-form regulation that require documentation of a review, action, inspection or event. The intent of these provisions, in part, is to require that the county prison record or confirm in writing that the required action took place. In most instances, that recording or written confirmation can be done in the location, manner or form that the county prison deems appropriate. The following provisions do not require a separate report or that the documentation take any particular form. The Department believes the county prisons can comply with the following documentation requirements with a minimal investment of time or effort and without any significant, additional paperwork requirements:

   Section 95.221(1)--requires documentation of the training of all corrections personnel in each employee's personnel file.

   Section 95.224(6)--requires documentation of the annual review of inmate rules and staff procedures.

   Section 95.223(2)--requires documentation in an inmate's file that the inmate received orientation in the prison's rules, procedures and programs listed in the paragraph (1).

   Section 95.230(2)--requires documentation that the person in charge of food services on any given shift, if not certified, has been trained as to food safety and sanitation procedures established in written local policy.

   Section 95.241(1)(vi)--Warden Wetzel commented that this documentation requirement would increase paperwork.

   Section 95.241(3)(iii)--requires documentation of an annual review of the county prison's emergency plans.

   These requirements can be met by something as simple as a notation, signature and date at the bottom of a policy or on a separate sheet following the policy stating that the required review has taken place. Regarding § 95.241(1)(vi), the documentation could be as simple as a notation and signature in a block logbook that a visit or inspection has taken place. The requirement to document the training or qualification of personnel (§§ 95.221(1), 95.230(2) and 95.241(2)(ii)(H)) and the orientation of inmates can be met by having the appropriate personnel sign a receipt, acknowledgement or certification and placing that in the employee's personnel file. A similar practice would meet the requirement to document orientation of all inmates under § 95.223(2).

   The documentation provisions listed may require a greater investment of time to complete than the previous provisions.

   Section 95.241(2)(ii)(E)--requires a documented monthly inventory of the stored restraints, chemical agents, stun devices, batons and firearms.

   Section 95.241(4)(iv)--requires documentation of a quarterly inspection of the keys, access card or other security devices.

   Section 95.248(2), (3), (8) and (9)--these provisions require documentation of the required, periodic sanitation inspections, inspections of the physical plant and equipment, testing of the emergency back-up power system, fire/smoke alarms or detectors and the conducting of fire drills.

   The Department believes that any additional investment of time to complete these documentation requirements is not substantial, nor unreasonable in light of the nature of the information. It is vitally important to the safe and secure operations of the prison that prison management know whether the restraints and weapons are accounted for and in usable condition. The same consideration is true for the keys, access cards or other security devices. Again, the regulation does not mandate the manner or form of the documentation. Whether the county prison creates checklists for these inventories or requires written reports to the prison administrator or some other method is a decision left to the county prison. The Department has found that most county prisons have service contracts for the maintenance and testing of major physical plant equipment such as boilers, any emergency back-up power system or the fire/smoke alarm system. The requirement to document the testing of these systems does not represent a change from the way almost all county prisons currently operate. The outside vendor's service or testing report would be sufficient documentation to meet the requirements of § 95.248(3), (8) and (9).

   Section 95.246(1)(v) and (2)(v)--requires the documentation and reporting of any death and any sexual assault or alleged sexual assault to the United States Department of Justice. Federal law mandates these additional reporting requirements.

   Section 95.242--in the final-form regulation formalizes some additional informational reporting requirements beyond the existing regulation. Paragraphs (1) and (3) will require county prisons to submit a Monthly County Prison and Jail Data report and an Annual County Prison General Information Report. These paragraphs will put into regulation the Department's long-standing practice of collecting statistical information from the county prisons. With only a few exceptions, all county prisons in this Commonwealth provide this information to the Department. The Department will provide the reporting forms. The county prisons are not responsible for creating the forms. Also, the regulation has been written so that electronic filing of the information can be implemented. In that the county prisons have this information readily available and most all of the counties have been reporting this information, this requirement will not require any additional paperwork beyond existing practices.

   To relieve some reporting requirements, paragraph (2) of the final-form regulation eliminated the requirement that extraordinary occurrence reports (EOR) be submitted to the Department within 48 hours of the event. The final-form regulation now requires that a County Extraordinary Occurrence Monthly Report be submitted within 30 days of the end of the reporting month. Again, the Department will supply the report form to the county prisons. The monthly report will be more of a statistical compilation of events qualifying as extraordinary occurrences as defined in paragraph (2) requiring less detail than a single EOR. The Department believes this change in reporting practice will be substantially easier for county prisons than the current 48-hour reporting provision.

   2.  Reasonableness of the regulations

   Comment--Noting that a number of commentators disagreed with the Department's assertion that the amendments afford county prison administrators with greater flexibility, IRRC requested that the Department explain ''how amendments to each section provide County Correctional Institutions (local prison) with greater flexibility in carrying out their duties.''

   Response--The Department's intent in revising the Chapter 95 regulations is first and foremost to modernize outdated standards so that the minimum requirements for county prisons in this Commonwealth are consistent with the current recognized professional standards for adult local detention facilities. In many important ways, as described, the revised standards in the final-form regulation do provide greater flexibility to county prison administrators than existing standards. As with the Phase 1 revisions promulgated in February 2000, the new standards require county prisons to develop written local policy that incorporates the minimum requirements of Chapter 95. The Department's intent is to permit county prisons maximum flexibility in establishing the details of policy and procedures most appropriate for that facility.

   The Department does not assert that all of the revisions in the final-form regulations afford greater flexibility to county prison administrators than existing standards. Prison operations and administration have evolved significantly in the almost 30 years since the existing standards were promulgated. A number of the existing standards are outdated to the point of no longer providing meaningful standards for current-day prison operations. In the process of modernizing those standards, some of the revised standards are necessarily more prescriptive than existing standards. The Department's intent is to limit the instances of somewhat more stringent requirements to those standards that directly impact on safety and security. The Department does not believe that any of the more stringent requirements are unduly burdensome either operationally or financially given the importance of this goal.

   Described are instances when the revised standards in the final-form regulations provide greater flexibility to county prison administrators than the existing standard:

   Section 95.241--Security. The existing language of paragraph (1) requires staffing levels for a county prison based solely on the inmate population, specifically requiring a minimum staffing ratio of one officer per shift for every 15 inmates. The revised standard in paragraph (1) of the final-form regulation contains no required, specific ratio of officers to inmates. The revised provision instead requires only that the county prison conduct an initial staffing analysis, thereafter reviewed on an annual basis, which takes into consideration the logical relief and leave factors. The revised provision does not limit this determination to only a mathematical calculation, but instead allows the county prison to consider any other factors administrators deem relevant to the analysis.

   Paragraph (1)(iii) in the final-form regulation gives greater flexibility to the county prison in making male and female staff assignments generally requiring that reasonable accommodation to inmate privacy be maintained. The existing standard is more restrictive by specifically limiting the movement of male officers to enter female housing only in the presence of a ''matron.''

   One commentator objected to the requirements of paragraph (1)(v) listing the specific job duties for staff assigned to the 24 hour control center. The Department concurs with these comments. The second sentence of the provision listing specific job duties has been deleted from the provision.

   Paragraph (4) regarding access control, is a prime example of how the revised standards in the final-form regulation replaced seriously outdated standards (see paragraph (3) of the existing standard). The existing standards concern only keys. The revised standard recognizes that many facilities now use other means of accessing secure areas.

   Paragraph (6) regarding tool/equipment control, is another example of how the revised standards replace outdated and inadequate existing standards (see paragraph (8) of the existing standard). The existing standard does not include any minimum requirement for a county prison to inventory and safely secure tools instead addressing those issues only under ''recommended guidelines.''

   Two commentators submitted comments objecting to the tool control provisions of § 95.242(6)(v) in the proposed rulemaking as being cumbersome and likely to require the hiring of additional staff. Upon further discussion of the issue with the Committee, the Department concurred with this concern. Paragraph (6)(v) in the final-form regulation has therefore been revised to eliminate the text that established ''how'' a tool inventory and receipt system had to operate. The final-form provision now only requires that an inventory and receipt system must be established by written local policy leaving the specifics as to how to implement that system to the discretion of the county prison.

   Section 95.243--Treatment services. A number of comments were received concerning this provision. Most of those are discussed in the context of the comments under Comment No. 14. With regard to the issue of whether the revised standards are overly prescriptive, the Department asserts that, taken as a whole, the provisions of § 95.243 in the final-form regulation, are consistent with the current recognized professional standards for adult local detention facilities while still allowing county officials and prison administrators sufficient flexibility to make decisions appropriate to their facility.

   The Department's statutory mandate found in section 3(3) of Act 502 includes establishing standards for county jails that include ''standards for correctional programs of treatment, education and rehabilitation of inmates.'' The Department believes the treatment services requirements in the final-form regulation provide significantly more flexibility to county jails in meeting inmate treatment needs than the existing requirements of § 95.243. The existing treatment section sets very specific requirements for the number of hours of counseling services that must be provided per week as well as specific staffing requirements based solely on the jails average daily inmate population. This numbers-only approach is in fact inflexible and fails to afford county prisons with sufficient discretion to meet the treatment needs of the inmate population based on other relevant factors.

   It is important to note that the term ''counseling services'' as used in paragraph (1) of the existing section is defined broadly so that it ''shall include group and individual counseling of a general nature; vocational rehabilitation counseling; social casework and group work, including self-help groups such as Alcoholics Anonymous and similar groups; testing and clinical psychological services; and psychiatric services.'' ''Counseling services'' in the existing regulation encompasses, in more specific terms, much of the four areas for treatment services required in § 95.243 of the final-form regulations.

   Most importantly, and contrary to the concerns of the commentators, the final-form regulation does not require how these treatment services must be provided. Section 95.243 does not specify the amount of hours that must be provided in these treatment areas, which inmates must be provided which services, nor the manner in which the treatment services are to be provided. Those decisions are left to judgment of the county jail administrators and treatment staff. As with the existing standard, the final-form regulation permits a county prison to provide these services through a person employed by the prison, someone under contract with the prison, through a volunteer or any combination thereof.

   The final-form regulation also provides county prisons greater flexibility in terms of who must deliver those services. Paragraph (3) allows these services to be delivered by a treatment professional (defined in § 95.220a) or a person certified, licensed or trained to provide the programming. The existing standard requires that a qualified counselor who preferably possesses a Master's Degree, but no less than a Bachelor's degree in behavioral sciences deliver the services. Furthermore, if the treatment services are delivered by a contracting agency or a professional volunteer, those persons must still meet the standards for qualified counselor. The existing standard also requires all county jails with populations over 75 inmates, but below 175, to have two full-time treatment personnel, one of whom must be a treatment supervisor. For jails with average daily populations of 175 inmates or more, the existing standard requires providing an additional qualified counselor for every 75 inmates over the first 75. Those specific staffing mandates have all been eliminated in the final-form regulation. The Department believes the existing standards provide more of a mandate to county jails as to how to provide the required counseling services than the revised standards in the final-form regulation. The intent of the final-form treatment services provision is to establish the required areas in which treatment services must be provided, but to leave the decisions as to the level of services and how those services are provided up to the county jail administrators.

   Section 95.244--Community involvement. Upon further review of this section, the Department determined that the neither the existing standards nor the requirements in the proposed rulemaking advance important interests in safety and security, programming or other operational standards and, therefore, this section is being rescinded.

   Additional comments--Section 95.222(1)(iv)--Admissions. One commentator objected to the requirement that an unclothed search of an arrestee take place only when there is reasonable belief or suspicion that the arrestee be in possession of an item of contraband. The commentator stated that the requirement was impractical and unnecessary due to the unique operational considerations of that county prison system noting that all arrestees are admitted into that system postarraignment unlike other county prisons.

   Response--The Department concurred that the new standard should not adversely impact the unique circumstances of that county prison system. For this reason, the specific requirements regarding the use of strip searches were eliminated and the final-form regulation now requires that written local policy state the type of search to be performed and any restrictions on the use of strip searches.

   3.  Implementation procedures.

   Comment--Effective date--The Preamble to the proposed rulemaking stated that the regulations will be effective upon final-form publication in the Pennsylvania Bulletin. IRRC recommended that the Department consider an effective date that occurs 6 to 12 months after final-form publication to allow county prisons time to implement the new standards.

   Response--The Department concurs with this recommendation. The final-form publication will establish the effective date for the new standards as 12 months after final-from publication.

   Comment--Written local policy--IRRC stated its understanding of the Department's intent as requiring the county prisons to develop their own written policy that reflects the minimum requirements of Chapter 95. IRRC recommended that each paragraph begin with the phrase ''Written local policy must provide . . .,'' or similar phrasing.

   Response--The Department concurs with the recommendation. These changes have been made in the final-form regulation where necessary in §§ 95.222, 95.224, 95.229, 95.230, 95.232, 95.233, 95.233a, 95.235, 95.237, 95.239, 95.240, 95.241, 95.242, 95.243 and 95.248.

   4.  Section 95.220a. Definitions--reasonableness; implementation procedures; clarity.

   Comment--IRRC listed 18 definitions that contained substantive provisions suggesting that those substantive provisions either be deleted or placed in the body of the regulations. One commentator also objected to many of the definitions as being substantive in nature.

   Response--The Department concurs with this recommendation. The following changes to definitions in the final-form regulation have been made:

   Bed capacity--the substantive language ''and that are only utilized in areas approved for residential occupancy by the Department of Labor and Industry or local code authority'' has been deleted from the definition.

   Community resources--the second sentence of the definition has been deleted.

   Counseling--the second sentence and the three types of counseling have been deleted.

   Financial audit--the second sentence of the definition has been placed in the body of the regulation at the end of § 95.239(3).

   Health care screening--the substantive provisions in the second and third sentences of the definition have been placed in the body of the regulation in § 95.232(1).

   Health care training--the second sentence of the definition has been deleted.

   Major infraction--the definition has been deleted and some of the substantive language has been placed in the body of the regulation in § 95.240(2)(i).

   Minor infraction--the definition has been deleted and some of the substantive language has been placed in the body of the regulation in § 95.240(2)(ii).

   Noncontact visitation--the second sentence of the definition has been deleted.

   Preinspection audit--the definition has been deleted. As described under Comment No. 5, the inspection process in § 95.220b has been revised so that preinspection audits have been eliminated.

   Prison inspection--the second sentence of the definition has been deleted and the first sentence revised to conform to the revisions to § 95.220b.

   Procedure--the second and third sentences of the definition have been deleted.

   Security perimeter--the second sentence of the definition has been deleted.

   Segregation--the second sentence of the definition has been deleted.

   Training--the second sentence of subparagraph (i) has been placed in the body of the regulation as the second sentence in § 95.221(5). Subparagraph (ii) in the definition has been deleted.

   Treatment professional--the first sentence of the definition has largely been deleted.

   Treatment training--the second sentence of the definition has been deleted.

   Vulnerability analysis--the second and third sentences of subparagraph (i) have been deleted and the remaining text of the definition has been combined into one sentence.

   Comment--Alcohol and other drugs treatment--IRRC recommended that the phrase ''or both'' be deleted from the definition.

   Response--The Department concurs and the phrase has been deleted.

   Comment--Bed capacity--IRRC recommended that since the phrase ''recognized professional standards'' is referenced in the definition, the specific standards should be referenced in the definition.

   Response--The Department concurs and reference has been made to the American Correctional Association's standards for adult local detention facilities.

   Comment--Building code--IRRC recommended that since the definition references ''Federal, state and local regulations that dictate construction of a prison,'' the definition should specifically reference the regulations that should be followed.

   Response--This definition has been deleted as the term is used in only one instance and its usage is self-explanatory. Furthermore, each local prison would need to identify and comply with any applicable building codes separate from the applicability of these regulations.

   Comment--Contraband--IRRC recommended that the phrase ''or on prison grounds'' be deleted from the definition since the ''prison grounds'' are by definition part of the prison.

   Response--The Department concurs and the phrase has been deleted.

   Comment--Force, use of--IRRC and numerous commentators stated that the use of force to effect compliance with an order is an accepted standard in correctional practice and should be included in the definition. The commentators further noted that this omission would make it difficult to maintain order in county prisons.

   Response--This omission was an oversight. The phrase ''to effect compliance with the rules and regulations of the facility when other methods of control are ineffective or insufficient'' has been added to the definition. The definition is now consistent with accepted correctional practice and the Department's own use of force definition and policy.

   Comment--Life safety code--IRRC recommended that the last sentence of the definition, which states, ''Two chapters are devoted to correctional facilities.'' be deleted.

   Response--The Department concurs and the sentence has been deleted.

   Comment--Major infraction and minor infraction--IRRC noted that a number of commentators believed that these definitions do not provide county prisons with sufficient flexibility regarding inmate misconducts. More specifically, several commentators stated that the definitions were not consistent with common jail practices that allow for some rule violations being sanctioned in an informal manner and without hearings. IRRC also requested that the Department explain the need for including major and minor rule infractions in the regulation.

   Response--As a result of discussions with the Committee and review of the public comments, the Department has revised § 95.240(2) to allow county jails greater flexibility to respond to inmate rule violations. The revision allows a county jail to define a third category of rule infractions in its written local policy by defining a category of rule infractions that do not rise to the level of major or minor infractions. A new paragraph (7) has been added allowing for informal resolution of this third category of rule infractions. Paragraph (7) also requires that an inmate's participation in the informal resolution of these rule infractions be on a voluntary basis only.

   The concept of breaking down inmate rule violations into major and minor infractions is consistent with the current recognized professional standards for adult local detention facilities and in fact gives county jails greater flexibility in responding to inmate rule violations. The current standard in § 95.240 required that discipline for the violation of any prison rule could not be imposed unless the basics of due process were provided to the inmate. Those basic due process requirements found in paragraph (2) are that the inmate be informed of the offense charged in writing, has had an opportunity to present a defense and has been found guilty of the charge by an impartial party or board designated by the prison administrator. The existing standard requires these procedures regardless of the gravity of the rule violation or the level of the sanction imposed. The final-form regulation eliminates the across-the-board procedural requirements by tying the level of procedure due for a rule violation to the seriousness of the violation and the level of the sanction that can be imposed.

   Comment--Prison administrator--IRRC recommended that the phrase ''regardless of local title'' be deleted from the definition as unnecessary.

   Response--The Department concurs and the phrase has been deleted.

   Comment--Restraint--Since the definition references devices as ''authorized,'' IRRC recommended that the term should either be deleted or the regulation specify how a device is authorized.

   Response--The Department concurs. The phrase ''authorized by written local policy that is'' has been added to the definition to clarify that the written local policy needs to specify which restraints are authorized for use in the county jail.

   Comment--Treatment services--IRRC recommended that this term be defined since it is used throughout the proposed rulemaking.

   Response--The Department concurs with this recommendation. A definition of the term has been added to the final-form regulation.

   5.  Section 95.220b. Scope--statutory authority; reasonableness; implementation procedures; clarity.

   The Department received extensive comments on § 95.220b from IRRC and a number of commentators. All of the comments were submitted under the three general topics discussed as follows:

   Comment--Inspection and declassification process--IRRC or the commentators, or both, stated six common objections to the inspection and declassification process described in the proposed rulemaking:

   (a)  IRRC and a number of commentators suggested that the term ''declassification'' was unclear and should be defined.

   (b)  Commentators objected to the lack of consultation with, and an appeal process for, county prisons found to be in noncompliance of the standards. IRRC noted its agreement with the commentators and recommended that both a consultation and appeals process be included in the final-form regulation.

   (c)   Two commentators and IRRC objected to the proposed rulemaking because it allowed for the possibility that a county prison could be declassified for noncompliance with standards not related to security. It was recommended that ''declassification'' be limited to noncompliance with the same safety and security-related standards that could trigger a vulnerability analysis under paragraph (6) of the proposed rulemaking. IRRC also recommended that the final-form regulation specify that declassification occur only in instances when there is noncompliance with security standards.

   (d)  IRRC recommended that the language of the final-form regulation describe who will pay for mandatory and voluntary vulnerability analyses.

   (e)  A number of commentators objected to the proposed rulemaking because it failed to clarify what would happen with pretrial detainees and inmates if a local prison is ''declassified.''

   (f)  IRRC commented that this section lacked specificity regarding preinspection audits and time frames for certain actions in the inspection and declassification process.

   Response--Inspection and declassification process--The Department found the public comments and the subsequent discussions with the Committee on these issues to be extremely valuable. That process resulted in important revisions to this section that the Department believes clarify the intent of the process and the procedures themselves. The Department's overriding goal in establishing the inspection and classification procedures is to ensure that county prisons are meeting the minimum standards that it believes are essential to the safe and secure operation of those facilities. The Department is fully cognizant that these are the same goals of the county prison administrators, county prison boards and the staff working at those facilities. A second objective of the inspection and classification procedures, as revised, is to assist county prisons in complying with the minimum standards so that the common goal of safe and secure correctional facilities is achieved. To that end, § 95.220b in the final-form regulations have been revised as explained:

   (a)  The Department concurs with the comments that use of the term ''declassification'' in the proposed rulemaking has caused confusion, particularly since that specific term is not used in the authorizing statute itself. The term ''declassification'' is therefore not used in the final-form regulation. The Department believes the section is clarified by instead using the language of the authorizing statute. Paragraphs (11)--(13) now describe the purpose of a hearing as determining whether a county prison should be ''classified as ineligible to receive prisoners with a sentence of 6 months or more but less than 5 years.''

   (b)  The Department agrees with the recommendations of IRRC and the commentators to include an appeal or consultation, or both, process in the final-form regulation. Paragraph (3) of the final-form regulation establishes a procedure that allows for input from the county prison before a final inspection report is issued. Specifically, the regulation requires the Department's inspector to issue the preliminary findings of the inspection to the county prison administrator and the governing county prison authority. The governing county prison authority or designee will then have up to 30 days to submit a written reply to the preliminary findings to the Deputy Secretary for Administration. The Deputy Secretary then has preliminary findings and a response from the county prison, which may include any relevant documentation, before issuing a final inspection report. The Department agrees that allowing input from the county prison will result in a fairer and more complete process. The written response offers the county prison an opportunity to dispute the preliminary findings or to explain other policies or practices that could mitigate the preliminary findings of the inspector. The regulation does not include an appeal from the final inspection report issued by the Deputy Secretary. A county prison cannot be classified as ineligible to receive certain inmates based solely on the findings in an inspection report. That classification cannot happen without a hearing and resulting order with specific findings by the Secretary. Should such an order be issued, the county prison would have the right to appeal that order to the Commonwealth Court under 42 Pa.C.S. § 5105 (relating to right to appellate review). The Department also believes that the changes permitting a response by the county prison to preliminary findings, including the submission of documentation, allows the Department to consider any unique circumstances faced by a particular county before issuing inspection report findings.

   (c)  The Department agrees with the recommendation of IRRC and various commentators to limit an ''ineligibility'' classification of a county prison to noncompliance with safety and security related standards. Paragraph (2) of the final-form regulation now lists the specific sections and paragraphs that are deemed to be essential to the safety and security of the county prison, prison staff, inmates and the public. The provisions that follow establish that only a violation of an essential standard could lead to a classification hearing by the Department. The final-form regulation limits the possibility of a classification hearing even further by requiring not only a violation of an essential safety and security standard, but a finding by that this violation constitutes an ''immediate threat to the safety and security of the county prison, prison staff, inmates or the public.''

   (d)  The Department agrees with IRRC's recommendation that the final-form regulation describe who is responsible for paying the costs of a mandatory or voluntary vulnerability analysis (VA). Under paragraph (8) of the final-form regulation, the Department bears the costs of the VA when the Department orders the VA. Under paragraph (10) of the final-form regulation, the county bears the costs of the VA when it is requested by the county. The Department has offered several training sessions to teach county prison officials how to conduct a VA. A number of county prison officials and staff have been participating with the Department in planning and offering additional VA training sessions.

   (e)  The section 3(3) of Act 502 authorizes the Department to establish standards, inspect and classify the county jails according to those standards as eligible to ''receive prisoners sentenced to maximum terms of six months or more but less than five years.'' The statute does not specifically address what happens to those inmates if a jail is classified as ineligible to receive these prisoners. The Department believes that the appropriate reading of the statute restricts a classification action to limiting a county prison from receiving additional prisoners with the defined sentences. The statute does not authorize that all prisoners with the defined sentences already in the prison be removed. In discussions with the Committee, the Department stated that if a county prison is classified as ineligible to receive these prisoners, that county remains responsible for arranging for incarceration of individuals sentenced by the county's court of common pleas in another facility. Pennsylvania law (61 P. S. § 72) permits the transfer of inmates in a county prison to another county ''upon such terms and conditions as the counties may determine.'' It is not an uncommon practice for a one county to pay another county to house a prisoner sentenced by the initial county's court of common pleas when there is no space in the county prison.

   (f)  The Department agrees with IRRC's recommendation to provide for specific steps and time frames for the inspection and declassification process. As described in part in subsection (b) of this response, the final-form regulation contains specific time frames that define each step of the inspection process (see paragraphs (1), (3), (4) and (9)). The inspection procedures have also been greatly simplified by eliminating the differing prison inspection cycles consisting of preinspection audits and prison inspections, which were described in paragraphs (1)--(4) of the proposed rulemaking. Each county prison is now subject to an annual prison inspection. County prisons are only subject to a biannual inspection if the county prison is in full compliance with all of the minimum requirements of Chapter 95.

   Comment--(2)--Statutory authority--A number of commentators questioned the Department's statutory authority to promulgate standards for county jails generally and to establish declassification procedures specifically. The commentators stated that the Department's promulgating standards and a scheme to declassify county jails for violation of those standards directly conflicts with statutory provisions granting local prison boards the authority to operate county jails. Similar objections were made regarding the Department's authority to order a vulnerability analysis.

   Response--Statutory authority--The Department is empowered by section 506 of The Administrative Code of 1929 to prescribe rules and regulations for the performance of the Department's business. The Department's business includes establishing standards for county jails and prisons, including physical facilities and standards for correctional programs for treatment, education and rehabilitation of inmates. See section 3(3) of Act 502. Section 3, paragraph (4) of Act 502 empowers the Department to inspect county jails and to classify them, in accordance with the standards the Department adopted, as eligible to receive prisoners sentenced to maximum terms of 6 months or more but less than 5 years. The language of these statutory provisions is straightforward and unambiguous. The statute states that the Department has the duties of establishing standards, inspecting according to those standards and classifying them in accordance with those standards. The Department's authority to classify county jails is limited to determining if the jail is eligible ''to receive prisoners'' with sentences within the parameters designated in the statute.

   The Department disagrees with the commentators' assertion that the Department necessarily lacks these powers because they conflict with the statutory authority granted to local prison boards to operate county jails. These various statutory provisions are not in conflict either logically or according to the rules of statutory construction. The object of statutory construction is to give effect to the intent of the General Assembly. Section 1921 of the Statutory Construction Act of 1972, 1 Pa.C.S., states that ''every statute shall be construed, if possible, to give effect to all its provisions.'' It is not problematic to give full meaning to the above-cited duties of the Department and the statutory provisions granting a local prison board the authority to operate and manage the county jail. Act 502 grants the Department oversight on county prisons that is limited to the establishment of standards, inspection according to those standards and classifying the jails as eligible to receive the defined class of inmates. The local prison boards are empowered with operating and managing county jails within those standards established by the Department. These differing statutory powers are not incompatible.

   The Department also disagrees with the commentators' assertion that the Department does not have the authority to conduct a VA. The final-form regulation has been intentionally structured so that the VA process is an extension of the inspection process. A VA is authorized based on findings of noncompliance with the essential standards and a finding that the noncompliance may present an immediate threat to the safety and security of the facility. The Department believes the VA process provides a very important supplement to the routine inspection-classification process by allowing the Department to respond quickly to those situations when a final inspection report finds serious and immediate safety and security problems at a facility. A VA report will, in the short term, identify actions the county prison can take to mitigate or eliminate any immediate threat to safety and security. If the county prison is unable or unwilling to take those actions, the VA process allows the Department to move to a classification hearing, if necessary, far more quickly under paragraph (11) instead of proceeding through the 3-year, progressive inspection process described in paragraphs (6) and (7). More importantly, the Department believes that the issuance of a VA report is more likely to result in identifying practices and actions that can be taken by the county prison to mitigate or eliminate any immediate threats to safety and security, thus avoiding the need for a classification hearing.

   Comment--(3)--Elimination of ADA/NCCHC accreditation waiver--The proposed rulemaking eliminated a waiver of the subchapter in its entirety for those counties achieving American Correctional Association (ACA) accreditation using adult local detention facilities standards. Also eliminated was a waiver of the requirements of § 95.232 (relating to medical and health services) for those counties achieving National Commission on Correctional Health Care (NCCHC) accreditation. A number of commentators objected to the elimination of these waivers claiming that the standards for both ACA and NCCHC accreditation were far more exacting than the standards of this chapter. They claimed that the standards were therefore unnecessary for those counties achieving either of these accreditations.

   Response--There are several reasons for eliminating the waiver provisions. Foremost, the Department believes that its statutory duty is to establish standards and inspect according to those standards and that those duties should not be relinquished to a nongovernment entity. While the ACA and NCCHC standards are equivalent to or exceed the standards established by the Department, the accreditation process takes place every 3 years. The accreditation process may therefore not discover newer, problematic developments. Additionally, only one county prison in this Commonwealth has ever sought and received ACA accreditation. Although a number of counties are accredited by the NCCHC, the Department believes there is value to conducting a full inspection of all aspects of a county prison's operations including its health care facilities.

   6.  Section 95.224. Inmate rules and staff procedures--reasonableness.

   Comment--Paragraph (2) stated that new or revised rules shall be disseminated to staff, and when appropriate, to inmates prior to implementation. IRRC recommended that the final-form regulation specify when it would not be appropriate to disseminate new or revised rules to inmates.

   Response--The phrase ''when appropriate'' has been deleted so that new inmate rules shall be disseminated to inmates in all instances.

   7.  Section 95.229. Bedding--reasonableness.

   Comment--As noted by IRRC, some commentators expressed concern that these provisions fail to recognize the need for temporary bedding when a county prison must process a large number of inmates in a short period of time. In those circumstances, the county prison may need to use temporary bedding that does not meet the requirement that the bedding be at least 12 inches off the floor. IRRC recommended that the regulation include an exception to the 12-inch requirement for a limited time to manage a dramatic increase in population.

   Response--The Department concurs with this recommendation. The final-form regulation contains a new paragraph (2) that allows for an exception to the requirements of paragraph (1) in emergency circumstances. Consistent with the intent of the Chapter 95 regulation, the revised provision requires the county prison to establish written local policy that defines the emergency circumstances that would require the use of temporary bedding. As a result of discussions with the Committee, the revised regulation places two reasonable time limits on the use of the emergency exceptions to the bedding requirements. An individual inmate may not be subject to temporary bedding for a period exceeding 30 days. The regulation limits the use of any temporary bedding arrangements to no more than 90 consecutive days in recognition that long-term use of temporary bedding arrangements by a county jail may create additional operational problems.

   8.  Section 95.230. Food services--clarity.

   Comment--IRRC suggested that paragraph (2) of the regulation specify what type of certification will be acceptable.

   Response--The Department concurs and the regulation has been revised. The fourth sentence of paragraph (2) has been revised to specify that the certification be ''in accordance with 3 Pa.C.S §§ 6501--6510 (relating to the food employee certification act).

   9.  Section 95.232. Medical and health services--clarity.

   Comment--IRRC recommended that the reference to ''certifying health organization'' under paragraph (8) be more specific.

   Response--The Department concurs and the regulation has been revised. County jails utilize various health organizations to directly conduct basic first aid and cardiopulmonary resuscitation training to its employees or to certify county jail employees as trainers. To allow county jails the choice of obtaining these training services from different organizations, the last sentence of paragraph (2) was revised to state that all corrections personnel be certified ''by the organization that conducts the training.''

   Comment--IRRC also recommended that the references to State and Federal law in paragraph (9)(ii) include specific citations to the applicable laws.

   Response--The Department concurs with this recommendation. The appropriate statutory reference has been added to paragraph (9)(ii).

   10.  Section 95.235. Work programs--clarity.

   Comment--Paragraph (3) requires local prisons to provide ''some form of compensation'' to inmates participating in work programs. IRRC noted that since the term compensation is defined, the phrase ''some form of'' should be deleted.

   Response--The Department concurs with the recommendation. The phrase ''some form of'' has been deleted from paragraph (3).

   Comment--Paragraph (4) states that inmate working conditions comply with ''all applicable federal, state or local work safety laws and regulations.'' Also, paragraph (5) references ''applicable law.'' IRRC recommends that the regulation should include references specific citations to those laws and regulations.

   Response--Upon further review of the Department's inspection practice, reference to inmate working conditions complying with all applicable Federal, State or local work safety laws and regulations has been deleted from the final-form regulation. The Department believes that the applicability of various Federal, State and local laws is open to interpretation and may vary from county to county. Department inspectors would not be qualified to resolve those questions of law. The Department's interests in conducting inspections in this area is to insure that the county prison's written local policy address that inmates be issued appropriate clothing and tools for particular work and that they are given appropriate direction on the proper use of equipment and tools.

   Comment--Two commentators objected to the last sentence of paragraph (5) believing that it required county jails to have the same work programs for both male and female inmates and that it would not be possible to comply with such a requirement.

   Response--The Department recognizes that county prisons housing both male and female inmates cannot practically offer identical work programs for male and female inmates. To clarify that paragraph (5) does not establish such a requirement, the Department has deleted the second sentence of paragraph (5). The remaining language requires that county prisons establish a written local policy prohibiting discrimination regarding access to a work program.

   11.  Section 95.237. Religion--need; implementation procedures.

   Comment--Some commentators objected to the language in paragraph (1) of the proposed rulemaking as too broad and possibly establishing an inmate's right to participate in any religious activities a matter of choice.

   Response--The Department concurred with the commentators concerns that the previous requirement of paragraph (1) was too broadly stated. The first sentence of paragraph (1) was therefore revised to revert to the existing standard with added language requiring that the requirement be put into written local policy. This change will result in keeping the decision-making process as to accommodating religious activities requests with the local prison management.

   Comment--Numerous commentators questioned the need for the paragraph (2) requirement that individuals seeking to provide religious guidance to inmates must have clinical pastoral education or equivalent specialized training and endorsement by the appropriate religious certifying body. The commentators expressed concern that these requirements would limit religious programming in some jails because religious activities are provided by volunteers without the training.

   Response--The Department understands and concurs with these stated concerns. The educational, training and certification requirement have been deleted from the final-form regulation.

   12.  Section 95.240. Inmate disciplinary procedures--need; implementation procedures.

   Comment--As noted in IRRC's comments on the definitions of major and minor infractions, IRRC suggested that the Department explain the need for including two levels of infractions.

   Response--See the Response in Comment No. 4 previous--major infraction and minor infraction.

   13.  Section 95.241. Security--need; implementation procedures; clarity.

   Comment--Paragraph (1) Supervision of inmate--IRRC noted that subparagraph (ii) requires an initial staffing analysis to be conducted and that the results of the annual staffing analysis be available at all times. IRRC suggested that the final-form regulation specify who conducts the staff analysis and who has access to it.

   Response--The Department concurs with the recommendation. Subparagraph (ii) of the final-form regulation requires that the staffing analysis be conducted by the prison administrator or a designee and that the information on the number and type of positions filled and vacant be available for review by the Department's inspectors.

   Comment--Paragraph (1) supervision of inmates--IRRC questioned the need the need for the subparagraph (v) requirement that local prisons maintain a permanent log to record routine information, as well as other information.

   Response--The Department recognizes this concern. To allow for the varying practices in county prisons, the specific requirement to maintain a permanent log and shift reports to record the listed information is deleted from the final-form regulation.

   Comment--Paragraph (2)(i) use of force--As with IRRC's comment regarding the definition of ''force, use of,'' IRRC recommended that paragraph (2) be amended to allow force to effect compliance with an order.

   Response--The Department concurs. See the Response to Comment No. 4 for--Force, use of.

   Comment--IRRC noted that the terms ''authorized equipment'' and ''recognized certification period'' used in paragraph (2)(ii)(H) are vague and recommended that those terms be defined.

   Response--The Department concurs. Paragraph (2) in the final-form regulation clarifies the use of those terms. Paragraph (2)(ii) adds the term ''authorized equipment such as'' to clarify that the county prison's written local policy must specify the equipment that prison staff may use in applying force (such as, the physical restraints, chemical agents, stun devices, batons and firearms).

   Use of the term ''recognized certification period'' is deleted and paragraph (2)(ii)(H) is revised to clarify that all prison staff authorized to use the equipment listed in policy must demonstrate competency in use of the equipment in accordance with the training or certification standards recommended by the manufacturer of that equipment.

   Comment--Paragraph (5) contraband control. Subparagraph (ii) stated that individuals ''entering or leaving'' the prison will be subject to search. IRRC asked if the local prison had discretion in this area, or did the Department intend to have individuals searched before ''entering and leaving.''

   Response--The Department's intent in stating the individuals are ''subject'' to search when entering or leaving the facility is that the local prison has discretion as to when an individual entering or leaving the prison is searched.

   14.  Section 95.243. Treatment services--fiscal impact; need; clarity.

   Comment--A number of commentators objected to the treatment mandates of this section. The commentators' objections were directed exclusively at the requirements of paragraphs (2) and (6).

   Paragraph (2) of the proposed regulation required treatment services to include programs in education, social services, alcohol and other drugs and counseling services. The commentators all objected to these requirements as unfunded mandates. Some commentators stated the requirements actually dictated how treatment services should be delivered and that such a decision should be left to the county jail.

   Response--The Department is cognizant of the concerns of the commentators. The Department believes that the requirements of paragraph (2), when read with all of the provisions of § 95.243 in the final-form regulations, are consistent with the current recognized professional standards for adult local detention facilities while allowing county officials and jail administrators flexibility to make decisions appropriate to their facility.

   The Department's statutory mandate found in section 3(3) of Act 502, includes establishing standards for county jails that include ''standards for correctional programs of treatment, education and rehabilitation of inmates.'' The Department believes these treatment services requirements provide significantly more flexibility to county jails in meeting inmate treatment needs than the existing requirements of § 95.243. The existing section sets very specific requirements for the number of hours of counseling services that must be provided by a county jail per week as well as certain staffing requirements based solely on the jails average daily inmate population.

   It is important to note that the term ''counseling services'' as used in paragraph (1) of the existing section is defined broadly so that it ''shall include group and individual counseling of a general nature; vocational rehabilitation counseling; social casework and group work, including self-help groups such as Alcoholics Anonymous and similar groups; testing and clinical psychological services; and psychiatric services.'' ''Counseling services'' in the existing regulation encompasses, in more specific terms, much of the four areas for treatment services required in § 95.243 of the final-form regulations.

   Perhaps most importantly, and contrary to the concerns of the commentators, the final-form regulation does not require how these treatment services must be provided. Section 95.243 does not specify the amount of hours that must be provided in these treatment areas, which inmates must be provided which services, nor the manner in which the treatment services are to be provided. Those decisions are fully left to discretion of the county prison administrators. As with the existing regulation, the final-form regulation permits a county prison to provide these services through a person employed by the prison, someone under contract with the prison, through a volunteer or any combination thereof.

   Section 95.243 in the final-form regulations also provides county prisons greater flexibility in terms of who must deliver those services. Paragraph (3) allows these services to be delivered by a treatment professional (defined in § 95.220a) or a person certified, licensed or trained to provide the programming. The existing standard requires that the services be delivered by a qualified counselor who preferably possesses a Master's Degree, but no less than a Bachelor's degree in behavioral sciences. If the treatment services are delivered by a contracting agency or a professional volunteer, those persons must still meet the standards for qualified counselor. The existing standard also requires all county jails with populations over 75 inmates, but below 175, to have two full-time treatment personnel, one of whom must be a treatment supervisor. For jails with average daily populations of 175 inmates or more, the existing standard requires providing an additional qualified counselor for every 75 inmates over the first 75. Those specific staffing mandates have all been eliminated in the final-form regulation. While well-intentioned, the existing standards provided far more of a mandate to county jails as to how to provide the required counseling services than the new § 95.243 in the final-form regulations. The intent of the final-form treatment services provision is to establish the required areas in which treatment services must be provided, but to leave the decisions as to the level of services and how those services are provided up to county prison administrators.

   As discussed previously under Comment No. 2, significant changes have been made to paragraph (6). The requirement that all inmates be given a treatment needs assessment within 14 days of admission has been significantly changed so that the assessment must be conducted within 90 days of an inmate's admission to the jail. Additionally, the treatment services recommended by the assessment must begin within 45 days of the assessment. The Department and member of the Committee believe that these changes will allow county prisons to focus treatment service resources on those inmates who are there for longer terms of incarceration.

   Finally, it should be noted that the significant interest in assuring that treatment services are provided to any inmate, short term or long term, in need of immediate services is met by paragraphs (4) and (5) of this section.

   Comment--IRRC noted that the terms ''treatment services'' and ''treatment programs'' are used in this section and recommended that one term be used and defined.

   Response--The Department concurs with this recommendation. The provision has been revised so that all references are now to ''treatment services.'' As explained, that term has also been defined.

   15.  Section 95.244. Community involvement--clarity.

   Comment--IRRC suggested that the Department define the term ''community involvement'' to assist the regulated community with developing a written policy that would meet the requirements of this section.

   Response--For the reasons discussed in the response in Comment No. 2, this section is rescinded in its entirety.

   16.  Section 95.246. Investigations--death sexual assaults/threats--clarity.

   Comment--IRRC questioned the need for the language in subparagraph (ii) requiring written local policy to specify who is responsible for contacting the coroner and law enforcement when subparagraph (i) specifically required the prison administrator to notify the coroner and appropriate law enforcement agency in the case of a death. IRRC noted similar language in paragraph (2), pertaining to sexual assaults/threats.

   Response--The Department concurs. Both paragraphs (1) and (2) were revised to state that written local policy must specify the procedure in the event of a death or an allegation of sexual assault, respectively, involving an inmate, prison employee, volunteer, contractor or visitor. Both paragraphs then list the elements that the written local policy must address.

   Comment--IRRC noted an inconsistency between the language of subparagraph (ii) which requires the reporting of sexual assaults and threats and the statistical/ informational reporting requirements of § 95.242. That section requires the reporting of assaults, but not the threat of sexual assaults on a monthly report filed with the Department. IRRC questioned how local prisons are to report the threat of sexual assaults.

   Response--The Department concurs. Paragraph (2) of this section was revised to clarify that county prisons establish procedures, through written local policy, to address all allegations of sexual assault and not threats of assault. Additionally, § 95.242(3)(iii) was revised to include the requirement to report sexual assaults and allegations of sexual assaults on the County Extraordinary Occurrence Monthly Report to the Department.

   17.  Section 95.248. Sanitation, maintenance and safety--clarity.

   Comment--IRRC recommended that paragraph (1) be revised to include a specific citation to the ''applicable governmental regulations'' that must be adhered.

   Response--The Department does not believe it is possible or practical to list all of the applicable regulations to sanitation or safety. To add clarity, the revised paragraph references Department of Labor and Industry regulations and any applicable local code authorities. The existence of any municipal sanitation and safety codes varies from county to county.

   Comment--IRRC noted that paragraphs (2), (3) and (9) required written local policy to ''identify'' plans or programs related to sanitation, maintenance and fire emergency/evacuation. IRRC asked if the intent was for county prisons to simply identify the plans or programs or must they be incorporated into the written local policy.

   Response--The word ''identify'' was deleted from paragraphs (2), (3) and (9) to clarify that the county prisons must incorporate the required elements of the identified program or plan into written local policy.

   18.  Miscellaneous clarity.

   Comment--IRRC recommended that the phrase ''including, but not limited to,'' as nonregulatory language be deleted from §§ 95.220b(1), 95.221(8), 95.232(12), 95.235(1), 95.241(1)(ii), 95.243(2), 95.243(4) and 95.243(6).

   Response--The Department concurs. The phrase has been deleted in each instance.

   Comment--IRRC recommended that the reference to ''generally accepted accounting procedures'' in § 95.239(3) be changed to ''generally accepted accounting principles.''

   Response--The Department concurs. The phrase has been changed as recommended.

   Comment--IRRC noted that § 95.241(2)(ii)(F) appeared to be an incomplete sentence.

   Response--The Department concurs. Section 95.241(2)(ii)(F) has been revised to read ''Circumstances and types of force requiring specific authorization and who shall authorize the use of the force.''

   Comment--IRRC recommended that the phrase ''prison administration'' in § 95.241(3)(ii) be revised to ''prison administrator.''

   Response--The Department concurs. The phrase has been changed as recommended in what is now subparagraph (iii) because of the addition of new language as subparagraph (ii).

   Comment--IRRC recommended that the phrase ''or designee'' should be added to § 95.246(1)(i) after the word ''administrator.''

   Response--The Department concurs. The phrase ''or a designee'' has been added as recommended.

   Comment--IRRC noted that the second sentence of § 95.248(9) contained a typographical error in using the word ''departments'' instead of the singular ''department.''

   Response--The Department has corrected the error.

E.  Fiscal Impact

   The amendments are not expected to have any significant negative fiscal impact upon the Commonwealth, its political subdivisions or the general public.

F.  Paperwork Requirements

   The amendments are not expected to have any significant effect on the paperwork requirements of the Commonwealth, its political subdivisions or the public.

G.  Contact Person

   Interested persons are invited to submit in writing any questions regarding the amendments to David B. Farney, Assistant Counsel, Department of Corrections, Office of Chief Counsel, 55 Utley Drive, Camp Hill, PA 17011, (717) 731-0444.

H.  Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Department submitted a copy of its notice of proposed rulemaking, published at 36 Pa.B. 3094 (June 24, 2006), to IRRC and the Chairperson of the House Judiciary Committee and the Senate Judiciary Committee (Committees) for review and comment. In compliance with section 5(c) of the Regulatory Review Act, the Department also provided IRRC and the Committees with copies of all comments received.

   In preparing these final-form regulations the Department has considered all comments received from IRRC, the Committees and the public.

   This final-form regulations were deemed approved by the Committee on August 6, 2008. IRRC met on August 7, 2008, and approved the final-form regulations in accordance with section 5.1(e) of the Regulatory Review Act (71 P. S. § 745.5a(e)).

I.  Effective Date

   The amendments shall take effect on October 13, 2009.

Findings

   The Department finds that:

   (1)  Notice of proposed rulemaking was published at 36 Pa.B. 3094, as required under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202), and the regulations thereunder, 1 Pa. Code §§ 7.1 and 7.2.

   (2)  A public comment period was provided as required by law and all comments were considered.

   (3)  The adoption of these amendments in the manner provided by this order is necessary and appropriate for the administration and enforcement of the authorizing acts.

Order

   (a)  The regulations of the Department, 37 Pa. Code Chapter 95, are amended by amending §§ 95.220a, 95.220b, 95.221--95.224, 95.229, 95.230, 95.232, 95.233, 95.235, 95.237, 95.239--95.243 and 95.245--95.248; by adding § 95.233a; and by deleting § 95.244 to read as set forth in Annex A.

   (b)  The Department shall submit this order and Annex A to the Office of General Counsel and to the Office of Attorney General for approval as required by law.

   (c)  The Secretary shall certify this order and Annex A and deposit them with the Legislative Reference Bureau for publication in the Pennsylvania Bulletin as required by law.

   (d)  This order shall take effect October 13, 2009.

JEFFREY A. BEARD, Ph.D.,   
Secretary

   (Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 38 Pa.B. 4693 (August 23, 2008).)

   Fiscal Note:  Fiscal Note 19-7 remains valid for the final adoption of the subject regulations.

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