PROPOSED RULEMAKING
DEPARTMENT OF CORRECTIONS
[37 PA. CODE CHS. 91, 93 AND 94]
Administration, State Correctional Institutions and Facilities and Release and Prerelease Programs
[34 Pa.B. 3010] The Department of Corrections (Department) proposes to amend Chapters 91, 93 and 94 (relating to administration; State correctional institutions and facilities; and release and prerelease programs) to read as set forth in Annex A. The Department is acting under the authority of section 506 of The Administrative Code of 1929 (71 P. S. § 186). The proposed rulemaking revises outdated material.
Purpose
The proposed rulemaking amends Chapter 91 to update the section on use of force and restraints. The proposed rulemaking amends Chapter 93 to revise the section on inmate correspondence to provide alternative procedures for privileged correspondence. The sections on inmate visiting privileges and religious activities will be updated. The section on inmate discipline will be revised to change the procedures for inmate hearings. The section on prison medical services will be revised to clarify examination procedures and increase medical co-pay fees. The proposed rulemaking amends Chapter 94 to clarify pre-release procedures.
Fiscal Impact and Paperwork Requirements
Since the Department currently operates the State prison system in accordance with the proposed rulemaking, it does not expect the proposed rulemaking to have a fiscal impact on, or to create new paperwork requirements for, the Commonwealth, its political subdivisions or the private sector.
Effective Date
The proposed rulemaking shall be effective upon closure of the public comment period, the regulatory review process and final-form publication in the Pennsylvania Bulletin.
Sunset Date
No sunset date has been assigned; however, every facet of the proposed rulemaking will be continuously reviewed for effectiveness, clarity and whether they are serving the greater interests of citizens of this Commonwealth.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on June 2, 2004, the Department submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Judiciary Committees. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections shall specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Department, the General Assembly and the Governor of comments, recommendations or objections raised.
Public Comment Period/Contact Person
Written comments concerning the proposed rulemaking shall be submitted to John S. Shaffer, Ph.D., Deputy Secretary for Administration, 2520 Lisburn Road, P. O. Box 598, Camp Hill, PA 17001-0598. Written comments must be received within 30 days of the publication of this proposed rulemaking in the Pennsylvania Bulletin and must include the name, address and telephone number of the interested party.
JEFFREY A. BEARD, Ph.D.,
SecretaryFiscal Note: 19-6. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 37. LAW
PART III. AGENCIES AND OFFICES
Subpart B. DEPARTMENT OF CORRECTIONS
CHAPTER 91. ADMINISTRATION § 91.1. Definitions.
The following words and terms, when used in this subpart, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Community corrections center--A minimum security community-oriented facility operated or contracted by the Department for the purpose of facilitating special programs.
Contraband--Material listed as contraband in 18 Pa.C.S. §§ 5122 and 5123 (relating to weapons or implements for escape; and contraband), the Commonwealth of Pennsylvania Department of Corrections Inmate Handbook, or any Department document that is [disseminated] available to inmates, such as material that an inmate is prohibited from possessing or material that an inmate is permitted to possess that has been altered or is being used for something other than its intended purpose.
* * * * * Facility--An institution, motivational boot camp or community corrections center operated or contracted by the Department.
* * * * * § 91.6. Use of force and restraints.
(a) Force and restraints will be used by corrections personnel only to accomplish legitimate [peneological] penological and law enforcement objectives.
(1) A staff member may not use any greater force against an inmate than is necessary to protect himself or others from bodily harm or to protect property from damage or destruction or to prevent a criminal act or to effect compliance with rules when other methods of control are ineffective.
(2) A staff member may only use deadly force against an inmate when such force is necessary to prevent death, serious bodily harm to himself or others, or to prevent [an escape.] one or more of the following:
(i) An escape from a correctional facility or while in immediate pursuit of an inmate escaping from a correctional facility.
(ii) An escape from a work detail, transport or other approved temporary absence when deadly force is necessary to prevent the escape and the inmate has been convicted of a forcible felony.
* * * * * (c) Use of [mace] chemical munitions will be closely controlled. Appropriate medical attention will be provided for any person involved in an incident where [mace was] chemical munitions were used. Staff will follow the procedures [set forth] in Administrative Directives as to the availability and storage, method of use, training, medical staff role, and reporting of the use of [mace] chemical munitions.
CHAPTER 93. STATE CORRECTIONAL INSTITUTIONS AND FACILITIES
Subchapter A. RIGHTS AND PRIVILEGES § 93.2. Inmate correspondence.
* * * * * (b) Restrictions. The following restrictions apply:
(1) Correspondence with inmates of other facilities, former inmates, probationers or victims of the criminal acts of the inmate will not be permitted except upon [special] approval of the facility manager or a designee.
* * * * * (5) Mail addressed to an inmate organization will not be accepted unless the facility manager [has] and Secretary have approved the organization and it is addressed to the staff coordinator of the organization.
(c) Incoming mail. All mail sent to a facility will be opened and examined for contraband in the facility's mailroom or designated area except when permitted under paragraph (1).
(1) The Department may permit sealed mail to be opened in the presence of an inmate under the following conditions:
* * * * * (ii) An attorney may obtain a control number from the Department's Office of Chief Counsel if the attorney wishes to have correspondence addressed to an inmate client opened in the presence of the inmate.
(A) An attorney shall submit a written request for a control number to the Office of Chief Counsel. The request shall include the attorney's name, address, telephone and facsimile numbers, state attorney identification number and a verification subject to the penalties of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities) that all mail sent to inmates using the control number will contain only essential, confidential, attorney-client communication and will contain no contraband.
(B) The attorney shall place the control number on each envelope that the attorney wishes to have opened in an inmate's presence. The number is confidential. It shall only be placed on the outside of the envelope so that it can be obliterated before it is delivered to an inmate client.
(C) If a control number does not appear on the envelope, the mail will be treated as regular mail and opened in the mailroom unless the procedures in subparagraph (i) were followed.
(D) The Department may change the control number for any reason upon notice to the attorney who requested it.
[(ii)] (iii) * * *
(2) Contraband in the form of money orders, certified checks, cash or other negotiable instruments will be recorded indicating the nature of the receipt, the sender, the amount received and the date. Personal checks, unless certified, will be returned to the sender. The facility is not responsible for cash sent through the mails. Confiscated coins and currency will be deposited in the Inmate General Welfare Fund. Contraband not specifically addressed in this section will be returned to the sender or destroyed [at the inmate's option unless it is transferred to appropriate criminal justice agencies at the discretion of the mailroom or security staff].
* * * * * (e) Scrutiny of correspondence.
(1) The facility manager or a designee may read incoming or outgoing mail, except mail sealed in accordance with subsection (c)(1), when there is reason to believe that it may reveal or discuss illegal or unauthorized activity or for reasons set forth in any Department document that is [disseminated] available to inmates.
* * * * * (f) Rejection of correspondence. An item of correspondence which appears to violate subsection (b) may be rejected by facility mailroom staff. The inmate and the sender, in cases when the inmate is not the sender, will be notified when the letter is rejected. The letter may be held for at least 7 business days after mailing of the notification to permit reasonable opportunity to protest the decision. If the letter is rejected, it will be returned to the sender.
(g) Incoming publications.
(1) [An incoming] A publication review committee [(IPRC)] consisting of staff designated by and reporting to the facility manager or a designee shall determine whether an inmate may receive a publication.
* * * * * (6) An inmate may receive only one copy of any publication unless granted permission by the [IPRC] publication review committee.
* * * * * § 93.3. Inmate visiting privileges.
(a) Approved list of visitors. A list of approved visitors may contain [up to] at least 20 names or more if permitted by the Department. Inmates who can show that they have more than [20 regular visitors] the number of visitors permitted by the Department may be permitted to add additional names to their approved lists. [Members of a family living at the same address may be counted as one name.] Except for members of an inmate's immediate family, a minor's name may be placed on the approved list only with permission of the minor's parents or guardian. Children under [12] 18 years of age may visit only when accompanied by [an adult and need not be placed separately on the official list] a parent, legal guardian or county children/youth services agency staff. A person may not be on more than one inmate's visiting list except in cases when the person is part of the immediate family of more than one inmate, unless special permission is granted by the facility manager. Changes or additions to the approved list may be made in accordance with established procedures. The name of a visitor may be removed [for good cause] upon authorization by the facility manager.
(b) Religious advisor. Designation by an inmate of a religious advisor as defined in § 93.6 (relating to religious activities) may be made at any time. The designation shall be in addition to the names on the approved list and will not be counted against the total [of 20] designated by the Department.
(c) Attorneys. An inmate may designate attorneys for whom the inmate desires visiting privileges at any time. The designation shall be in addition to the names on the approved list and will not be counted against the total [of 20] designated by the Department.
* * * * * (g) Initial [vists] visits. The inmate's first visit after admission should be scheduled following the medical quarantine period and may be held in the presence of a staff caseworker.
(h) Number, time and place of visits. Inmates shall be permitted to have visits as often as the situation at the facility will allow.
(1) Visiting days. Visits may be permitted every day of the year at the discretion of the facility manager.
(2) Visiting hours. Morning and afternoon visiting hours will be maintained at the discretion of the facility manager. Evening visits may be maintained at the discretion of the facility manager.
* * * * * (6) Place. Inmates in the general population will be permitted contact visits in a relaxed setting, under official supervision unless otherwise restricted as set forth in the Commonwealth of Pennsylvania Department of Corrections Inmate Handbook, or any Department document that is available to inmates.
* * * * * (j) Media representatives. Media representatives will have the same visiting privileges as visitors on an inmate's approved list of visitors as described in Department policy concerning inmate visitation. A media representative will not be in addition to the names on the approved list and will be counted against the total [of 20] designated by the Department.
(1) [Upon request, media] Media representatives [will be provided with] may obtain a copy of the Department's policy regarding inmate visitation on the Department's website (www.cor.state.pa.us).
* * * * * § 93.6. Religious activities.
(a) [Policy. It is the policy of the Department to permit each inmate to satisfy the needs of his religious life, consistent with the security needs and orderly administration of the facility. The Department will provide chapel facilities at each facility. The Department will also permit inmates to possess approved religious items and make reasonable accommodation for dietary restrictions.] Chapel facilities. The Department will provide chapel facilities at each facility and will permit inmates to request religious accommodations not already being permitted.
(b) Religious advisors.
(1) [If the facility contains a sufficient number of inmates of the same faith, a qualified representative of that faith from the outside community will be appointed or approved by the facility manager and will be permitted to hold regular services in the facility. Qualified representative means a person from the outside community who has received endorsement from his faith group authority.] Staff or volunteers will be permitted to hold services that are consistent with the security needs and orderly administration of the facility.
(2) Each inmate will be permitted to select a religious advisor from the outside community [who has received endorsement from the faith group authority] subject to security needs and orderly administration of the facility. This person will be permitted to visit the inmate on an individual basis in accordance with general rules governing visitation.
[(c) Accommodation of faiths. Requests for accommodation of faiths will be handled as follows:
(1) Facility officials will secure written information from the outside faith group authority, including publications which describe the goals, beliefs and practices of the group.
(2) Information material will be forwarded to the Director of Chaplaincy Services for the Department for evaluation.]
§ 93.7. Telephone calls.
(a) Inmates in general population may make phone calls in accordance with 66 Pa.C.S. § 2907 (relating to state correctional institutions) and the Commonwealth of Pennsylvania Department of Corrections Inmate Handbook. Phone calls, except confidential communications between attorneys and inmates, shall be subject to monitoring in accordance with 18 Pa.C.S. Chapter 57 (relating to wiretapping and electronic surveillance).
* * * * * § 93.9. Inmate complaints.
(a) The Department will maintain an inmate grievance system which will permit any inmate to seek review of problems which the inmate experiences during the course of confinement. The system will provide for review and resolution of inmate grievances at the most decentralized level possible. It will also provide for review of the initial decisionmaking and for possible appeal to the Central Office of the Department. An inmate will not be disciplined for the good faith use of the grievance systems. However, an inmate who submits a grievance for review which is false, frivolous or malicious may be subject to appropriate disciplinary procedures. Copies of the directive governing grievance procedures will be made available to the inmates.
* * * * * § 93.10. Inmate discipline.
(a) Rules which define expectations and prohibitions for inmate behavior will be established by the Department and [distributed] made available to the inmate population. There shall be two classes of misconduct charges, Class I and Class II.
(1) Inmates found guilty of Class I misconduct charges may be subjected to one or more of the following sanctions:
* * * * * (iii) Change of cell assignment, including placement in the restricted housing unit or restrictive confinement in a general population cell for a period not to exceed [6 months] 90 days for any one misconduct charge.
* * * * * (b) Written procedures which conform to established principles of law for inmate discipline including the following will be maintained by the Department and [distributed] made available to the inmate population:
* * * * * (2) Hearing before an impartial hearing [body] examiner or an informal resolution process for charges specified by the Department in the Commonwealth of Pennsylvania Department of Corrections Inmate Handbook, or any Department document that is made available to inmates.
* * * * * (4) Assistance from an inmate or staff member at the hearing if the inmate is unable to collect and present evidence effectively.
(5) Written statement of the decision and reasoning of the hearing body, based upon [the preponderance of the] some evidence.
(6) Opportunities to appeal the misconduct decision [of the hearing body] in accordance with procedures in the Commonwealth of Pennsylvania Department of Corrections Inmate Handbook.
§ 93.12. Prison Medical Services Program.
* * * * * (b) The following words and phrases, when used in this section, have the following meanings unless the context clearly indicates otherwise:
* * * * * Health care professional--
(i) Any physician, physician assistant, nurse, dentist, optometric professional or other person licensed to provide health care under the laws of the Commonwealth.
(ii) The term does not include a corrections health care administrator performing the administrative duties of that position.
* * * * * (c) The Department will charge a fee to an inmate for any of the following:
* * * * * (6) Medical service provided to an inmate to determine whether his physical condition is suitable for participation in a sport unless the medical service is provided as part of an inmate's [initial, annual or biennial] physical examination scheduled by the Department.
(d) The Department will not charge a fee to an inmate for any of the following:
* * * * * (4) [Annual and biennial physical] Physical and dental examination scheduled by the Department.
* * * * * (7) Medical treatment for a chronic or intermittent disease or illness.
(8) Infirmary care in a Department [of Corrections] facility excluding organ transplantation.
(9) Hospitalization outside of a Department [of Corrections] facility.
(10) Long-term care to an inmate not in need of hospitalization, but whose needs are such that they can only be met on a long-term basis [and who needs the care] or through personal or skilled care because of age, illness, disease, injury, convalescence or physical or mental infirmity.
* * * * * (e) The fee for any medical service in subsection (c) is $[2] 3, and this amount will be increased to $4 on July 1, 2005, and $5 on July 1, 2007, except that an inmate is required to pay a fee equivalent to [two-thirds of] the total cost of medical services provided to another inmate as a result of the inmate's assaultive conduct.
(1) The fee will be assessed each time a medical service in subsection (c) is provided to an inmate, except when multiple services are performed at one visit at the discretion of the health care professional.
* * * * * (f) Payment for any medical service in subsection (c) shall be accomplished according to the following procedures:
* * * * * (2) An inmate who wishes to receive a medical service after being advised that a fee will be charged for the medical service, shall sign the authorization form acknowledging that his inmate account will be debited for the fee. [A nonemergency medical service will not be provided to an inmate who refuses to sign the authorization form after having been advised that a fee will be charged for the medical service.] An inmate who refuses to sign the authorization, who does not sign a refusal of treatment form, and who accepts medical treatment will receive the services and his account will be debited. An inmate will not be denied access to medical services because of an inability to pay the required fee. If an inmate lacks sufficient funds to pay a medical service fee, the inmate's account will be debited and the fee recouped as soon as sufficient funds are deposited in the inmate's account.
* * * * * (g) An inmate who has medical insurance shall pay for his own medical needs through that insurance by cooperating with the Department in submitting the proper paperwork to the insurance carrier.
* * * * *
Subchapter C. MOTIVATIONAL BOOT CAMPS § 93.303. Selection committee.
* * * * * [(d) The superintendent of the State correctional institution in which a diagnostic and classification center is operated shall make the final decision as to inmate participation in a motivational boot camp.]
§ 93.307. Inmate discipline.
* * * * * (b) Serious rule infractions which constitute Class I misconducts listed in DC-ADM 801--Inmate [Disciplinary and Restricted Housing Procedures] Discipline--may result in an inmate's expulsion from a motivational boot camp.
(c) Minor rule infractions which constitute Class II misconducts listed in the DC-ADM 801--Inmate [Disciplinary and Restricted Housing Procedures] Discipline--will be dealt with according to a three-tiered approach.
* * * * *
CHAPTER 94. RELEASE AND PRERELEASE PROGRAMS § 94.2. Prerelease programs.
* * * * * (c) Community corrections.
* * * * * (2) Group home residency. This is a program which complements community corrections center residency and consists of publicly or privately owned agencies approved by the Department for use by its residents. These residences provide specialized residential treatment, for example, drug and alcohol treatment, or additional bed resources and include 24-hour supervision, living quarters and special services for selected residents, and provisions for continued jurisdiction by community corrections. An exception to this paragraph shall have prior approval by the Director, Community Corrections Division and final approval by the Secretary or a designee.
(3) Community corrections furlough program. This is a program which complements community corrections center residency and is permitted with the approval of the community corrections center [staff] director or contract coordinator. It is the authorized leave of an inmate from a community corrections center or group home for a period not to exceed 7-consecutive days for the purpose of furthering the inmate's reintegration into the community. The inmate is required to return to the center or group home at a designated time.
§ 94.3. Procedures for participation in prerelease programs.
(a) The criteria for eligibility for prerelease programs are as follows:
(1) Inmates who have been sentenced to death or life imprisonment or other offenses as specified in State and Federal statutes or specified by the Department in the Commonwealth of Pennsylvania Department of Corrections Inmate Handbook or any Department document that is available to inmates are not eligible.
* * * * * (4) The inmate may have had no Class I misconduct and no more than one Class II misconduct during the 9 months prior to application, and have sustained no Class I [misconducts] misconduct and no more than one Class II misconduct from the time of application to the time of transfer.
* * * * * (6) The inmate's application shall be approved by the facility manager and by the Secretary or regional director of the Department, or both, if an inmate is serving a sentence for an offense specified in the Commonwealth of Pennsylvania Department of Corrections Inmate Handbook, or any Department document that is available to inmates that requires approval.
* * * * * (9) The inmate shall execute a written [agreement which requires him] acknowledgement that he is required to abide by the rules and regulations of the prerelease program. In the case of community corrections placement, the written agreement shall be signed prior to transfer.
* * * * * § 94.5. Notification process.
* * * * * (b) If the inmate has not finished his minimum sentence and an objection is received from the judge or court, if the judge is unavailable, within 30 days of his receipt of the proposed prerelease plan, representatives of the Department will contact the judge or court and if necessary arrange for a meeting to attempt to resolve the disagreement. If, within 20 days of the Department's receipt of the objections, the judge or court does not withdraw the objection and the Department does not withdraw its proposal for transfer, or the judge and the Department do not agree on an alternate proposal for transfer, the Department will refer the matter to the Board for [arbitration] a hearing.
§ 94.6. Staff responsibilities.
* * * * * (b) It is the primary responsibility of the [classification and treatment manager] Corrections Classification Program Manager (CCPM) or other staff person designated by the facility manager to coordinate the staff evaluation and recommendation process.
(1) The [classification and treatment manager] CCPM or other staff person designated by the facility manager will chair a meeting of designated facility staff who shall make recommendations regarding prerelease programs. The inmate shall be present at this staff meeting for input.
(2) The staff's findings, recommendations and rationale shall be forwarded to the facility manager through both the Office of the Deputy Superintendent for [Treatment] Centralized Services and the Deputy Superintendent for [Operations] Facilities Management, with comments by both.
(c) It is the responsibility of the facility manager to give final approval or disapproval of recommendations regarding prerelease programs. The inmate will be advised by the [classification and treatment] unit manager, in the presence of the inmate's counselor, of the final decision and its rationale. The decision and rationale will be documented in the cumulative adjustment record.
(d) Letters to judges and district attorneys shall be signed by the facility manager or a designee.
* * * * *
[Pa.B. Doc. No. 04-1005. Filed for public inspection June 11, 2004, 9:00 a.m.]
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