RULES AND REGULATIONS
Title 37--LAW
DEPARTMENT OF CORRECTIONS
[37 PA. CODE CHS. 91, 93 AND 94]
Administration, State Correctional Institutions and Facilities and Release and Prerelease Programs
[35 Pa.B. 2279] The Department of Corrections (Department) amends Chapters 91, 93 and 94 (relating to administration; State correctional institutions and facilities; and release and prerelease programs). The Department is acting under the authority of section 506 of The Administrative Code of 1929 (71 P. S. § 186). This final-form rulemaking revises outdated material.
Purpose
The final-form rulemaking amends Chapter 91 to update the section on use of force and restraints. The final-form 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 are updated. The section on inmate discipline is revised to change the procedures for inmate hearings. The section on prison medical services is revised to clarify examination procedures and increase medical co-pay fees. The final-form rulemaking amends Chapter 94 to clarify pre-release procedures.
Summary of Comments and Responses on Proposed Rulemaking
1. § 91.6. Use of force and restraints.
The Independent Regulatory Review Commission (IRRC) commented as follows. Subsection (a)(2)(i) allows for the use of deadly force if an inmate attempts to ''escape from a correctional facility or while in immediate pursuit of an inmate escaping from a correctional facility.'' The term ''correctional facility'' is not defined. The term ''facility'' is defined in this section as ''An institution, motivational boot camp or community corrections center operated or contracted by the Department.'' The Department has indicated that this provision does not apply to an escape from a community corrections center. For clarity, the final-form rulemaking should define the term ''correctional facility'' and it should not include the term ''community corrections center.'' Alternatively, the defined term ''facility'' should be substituted for ''correctional facility'' and subsection (a)(2)(i) should be amended to specifically exempt community corrections centers.
Response: The Department agrees and has amended subsection (a)(2)(i) to specifically exempt community corrections centers.
IRRC commented that subsection (a)(2)(ii) allows the use of deadly force if an inmate who has been convicted of a forcible felony attempts to ''escape from a work detail, transport or other approved temporary absence when deadly force is necessary to prevent the escape. . . .'' The term ''forcible felony'' is not defined in regulation or statute. However, it is defined in Department Policy Statement No. DC-ADM 201--Use of Force as ''an offense involving the threat of physical force or violence against any individual.'' The Department should include this definition in the final-form regulation.
Response: The Department agrees and has added this definition in subsection (a)(2)(ii).
IRRC commented that subsection (c) establishes the procedures for the use of chemical munitions. It requires staff to follow procedures in Administrative Directives. The Department should include the name and form number of the applicable documents in the final-form rulemaking.
Response: The Department agrees and has added a reference to DC-ADM 201--Use of Force--to this subsection.
The Pennsylvania Institutional Law Project commented that the proposed amendments unnecessarily expand the type of situation in which force can be used to include failure to comply with rules and where other methods are ineffective. The proposed amendments also expand the use of deadly force to include situations in which an inmate is attempting to escape from a facility.
Response: The changes are not an expansion of the existing regulations, which provide for use of force for legitimate penological objectives and for use of deadly force. Department staff has the legal authority to use a reasonable amount of force to bring about compliance with rules. The language in this section has been revised to further clarify when force can be used. The authority to use deadly force to prevent an escape is clearly provided in 18 Pa.C.S. § 508(c) (relating to use of force in law enforcement). The authority to use force to comply with rules is clearly provided in 18 Pa.C.S. § 509(5)(i) (relating to use of force by persons with special responsibility for care, discipline or safety of others).
2. § 93.2. Inmate correspondence.
IRRC commented that subsection (f) relates to the rejection of correspondence. It states, in part, ''The letter may be held for at least 7 business days after mailing of the notification to permit reasonable opportunity to protest the decision.'' The word ''may'' suggests that this provision is optional. The Department has indicated that they routinely hold letters for 7 business days. The final-form rulemaking should make this provision a requirement by changing the word ''may'' to ''will.''
Response: The Department agrees and has made the suggested change.
The Pennsylvania Institutional Law Project commented as follows: ''There are situations that were considered legal mail and not subject to search outside the presence of the inmate under the old rules that are not included in this new criteria and as such will now be inspected outside the inmate's presence.''
Response: No change to definition of ''legal mail'' is being made at this time. This comment addresses prior amendments to these regulations.
3. § 93.3. Inmate visiting privileges.
IRRC commented that in subsection (a), regarding the approved list of visitors, the opening sentence is being amended to state ''A list of approved visitors may contain at least 20 names or more if permitted by the Department.'' This change seems to require an inmate to have at least 20 visitors on the list. To avoid this confusion, the Department should retain the existing language that stated, in part, ''A list of approved visitors may contain up to 20 names . . . .''
Response: The Department agrees and has made the suggested change.
IRRC commented that under the existing regulation, a child under 12 years of age may visit an inmate when accompanied by an adult. The proposed amendment would require a child under 18 years of age to be accompanied by a parent, legal guardian or county children/youth services agency staff. The Department's current policy statement and handbook are inconsistent with this provision in the proposed rulemaking.
IRRC further commented that section (VI)(A)(2)(f) of Department Policy Statement No. DC-ADM 812--Inmate Visiting Privileges--provides that an immediate family member approved by the parent or legal guardian may accompany a minor when visiting an inmate. In addition, section (VI)(C)(2) of DC-ADM 812 allows a minor to visit only when accompanied by a parent/legal guardian, county children/youth services agency staff or an adult approved by the parent/legal guardian.
IRRC also commented that the Handbook for the Families and Friends of Pennsylvania Department of Corrections Prison Inmates permits an adult on an inmate's approved visiting list to accompany a child visiting an inmate. The Department should explain the inconsistencies between the proposed rulemaking and the documents previously noted.
Response: The Department will retain the existing regulation language except to add that an adult that accompanies the child must be approved by the parent or legal guardian. The Department will ensure that both DC-ADM 812 and the Handbook for the Families and Friends of Pennsylvania Department of Corrections Prison Inmates are consistent with the final-form rulemaking.
IRRC commented that the provision regarding the removal of visitors from an approved list is being amended by deleting the phrase ''for good cause.'' The Department should retain this phrase, or explain the basis on which the facility manager will remove the name of a visitor.
Response: The Department agrees and will retain this language.
IRRC made the following comments about subsections (b), (c) and (j), regarding visitations by religious advisers, attorneys and media representatives. They all contain the phrase '' . . . the total designated by the Department.'' The Department has indicated that they do not ''designate'' lists of visitors. Instead, they approve lists of visitors. These subsections should be amended to read '' . . . the total approved by the Department.''
Response: The Department agrees and has made the suggested changes.
IRRC made the following comments on subsection (h)(1) and (2), which provides that visiting days and hours will be ''at the discretion of the facility manager.'' Representative Kathy Manderino, a member of the House Judiciary Committee, is concerned that this new language would make it more difficult for family members to visit inmates who are confined to facilities far from their homes. She suggests the Department establish minimum standards for all facilities that would allow reasonable access for family visits. IRRC agrees that visiting days and hours should reasonably accommodate family members.
Response: The Department agrees and has amended the final-form rulemaking to require that visiting days and hours reasonably accommodate family members.
4. § 93.6. Religious activities.
IRRC and the Pennsylvania Council of Churches made the following comments on subsection (a), which is being amended to delete language which permits inmates to ''possess approved religious items'' and be granted ''reasonable accommodation for dietary restrictions.'' The Department should explain the reason for deleting this language.
Response: The Department has withdrawn the amendments.
IRRC and the Pennsylvania Council of Churches made the following comments on subsection (b), which relates to religious advisers. The rulemaking is deleting a provision that allows qualified representatives of a faith from the outside community to hold regular services in the correctional facility if the facility contains a sufficient number of inmates of the same faith. This provision is being replaced with the following sentence: ''Staff or volunteers will be permitted to hold services that are consistent with the security needs and orderly administration of the facility.'' The Department has indicated that qualified representatives who have received endorsement from their faith group will still be allowed to hold services. The final-form rulemaking should be amended to reflect this fact.
Response: The Department has amended the final-form rulemaking to retain existing language and to clarify that qualified representatives, staff and volunteers may all hold services.
IRRC and the Pennsylvania Council of Churches made the following comments on subsection (c) in the existing regulation, which specifies how requests for accommodations of faith will be handled. Why is this subsection being deleted?
Response: The subsection in question has been revised to state that accommodation requests will be processed according to DC-ADM 819--Religious Activities, which sets for the process for reviewing the requests.
5. § 93.7. Telephone calls.
IRRC commented on subsection (a), which references 18 Pa.C.S. Chapter 57 (relating to wiretapping and electronic surveillance). The Department has indicated that the applicable provision is 18 Pa.C.S. § 5704 (relating to exceptions to prohibition of interception and disclosure of communications). The final-form rulemaking should be amended to include a reference to 18 Pa.C.S. § 5704.
Response: The Department agrees and has made the suggested change.
6. § 93.9. Inmate complaints.
IRRC and the Pennsylvania Institutional Law Project made a comment on this section, which has been amended to add that an inmate who submits a ''frivolous'' grievance may be subject to appropriate disciplinary procedures. The definition of ''frivolous grievance'' is in DC-ADM 804--Inmate Grievance System. The final-form rulemaking should include this definition. Also, the Department should reference DC-ADM 804, which explains who determines if a grievance is frivolous and when that determination is made.
Response: The Department agrees and has made the suggested change.
7. § 93.10. Inmate discipline.
IRRC made a comment on subsection (a) which states, in part, that ''Rules which define expectations and prohibitions for inmate behavior will be established by the Department and made available to the inmate population.'' (Emphasis added.) This sentence implies that rules will be established sometime in the future. However, the Department indicated that rules have been established and are in the Department of Corrections Inmate Handbook (Handbook). The final-form rulemaking should include a reference to that document.
Response: The Department agrees and has edited the final-form rulemaking to state that the rules will be disseminated to the inmate population.
IRRC noted that Representative Manderino has expressed concern over the insertion of the phrase ''made available,'' which replaces the existing term ''distributed.'' The concern is that since inmates will be held responsible for complying with the rules and may be disciplined for infractions, they should receive a complete copy of the rules. We agree.
Additionally, we note that the phrase ''made available'' or ''available'' appears in subsection (b)(2), as well as in the proposed definition of ''contraband'' in § 91.1 (relating to definitions) and proposed §§ 93.2(e)(1), 93.3(h)(6) and 94.3(a)(1) and (6) (relating to inmate correspondence; inmate visiting privileges; and procedures for participation in prerelease programs). The same concern applies to these sections. The final-form rulemaking should specify when the complete Handbook will be provided to inmates and how inmates will be informed of updates to the Handbook and other Department policy statements.
Response: The Department agrees and has added a definition of the inmate handbook to § 91.1, which explains how it is updated. The language ''made available'' has been replaced with the word ''disseminated.''
IRRC and the Pennsylvania Institutional Law Project commented on subsection (b)(2) adding language pertaining to an ''informal resolution process'' for inmate misconduct charges. The Department should explain how this process will be implemented.
Response: The Department agrees and has added a reference to DC-ADM 801 and a brief description of the process.
IRRC and the Pennsylvania Institutional Law Project commented that under existing subsection (b)(5), written statements of a decision and the reasoning of the hearing body must be based on the ''preponderance of the evidence.'' The Department is proposing to replace ''preponderance of the evidence'' with ''some evidence.'' However, ''some evidence'' is not a legal standard for basing a finding of guilt. The Department should explain why it is not substituting another legal standard, such as ''substantial evidence,'' on which a finding of guilt will be based.
Response: The Department has withdrawn this amendment.
8. § 93.12. Prison Medical Services Program.
IRRC commented that subsection (d) lists medical services that will be provided to an inmate without charge. Subsection (d)(8) states that ''Infirmary care in a Department facility excluding organ transplantation.'' Based on discussion with Department staff, IRRC understands that this provision was intended to address organ donation by an inmate. However, this procedure would not take place in a Department facility. Therefore, the exclusion listed in this subsection is unnecessary and should be deleted.
Response: The Department has withdrawn this change.
IRRC, the Pennsylvania Institutional Law Project and two inmates made comments that under subsection (e), the fee for medical services is being increased from $2 to $3 with subsequent increases of an additional $1 on July 1, 2005, and July 1, 2007. The Department should explain the basis for the fee increases.
Response: The basis for the fee increase is that the co-payment has not been adjusted since the implementation of the co-pay system despite the fact that costs for inmate health care are increasing significantly. The cost increased 16% from 2002 to 2004, from $152,249,000 to $176,913,000, or over $24 million over a 2-year period. The projected co-pay increase will result in a increase of only $130,000 over a 2-year period. Maintaining a fair co-payment in the face of increasing costs will continue to serve the intended purpose of eliminating unnecessary health care visits by inmates. This purpose would not be achieved if the co-pay remained stagnant in the face of increasing costs. This increase is also consistent with increases in individual co-payment amounts in the private and public sector employee health care contracts, although the increases for inmates are much smaller than those experienced by non-incarcerated individuals.
9. § 94.3. Procedures for participating in prerelease programs.
IRRC commented that subsection (a) establishes the criteria for eligibility for prerelease programs. Subsection (a)(1) is being amended to add that inmates sentenced to ''other offenses as specified in State or Federal statutes or specified by the Department in the Department of Corrections Inmate Handbook'' are not eligible. The final-form rulemaking should include references to the applicable State and Federal statutes.
Response: The Department has amended this section to delete the reference to applicable State and Federal statutes. Because these statutes will be referenced in the Department directive on prerelease, this language has been substituted with a reference to that policy, DC-ADM 805--Policy and Procedures for Obtaining Pre-release.
10. Section 94.5. Notification process.
IRRC commented that subsection (b) establishes the procedures to be followed if a judge or court objects to the prerelease of an inmate. If the Department and the judge or court cannot reach an agreement, the Department will refer the matter to the Board for ''a hearing.'' The existing regulation uses the word ''arbitration.'' Why has ''arbitration'' been replaced with ''a hearing''? Also, what does the arbitration process entail?
Response: The term ''arbitration'' has been replaced with the term ''hearing'' because that is the term used in section 2 of the act of July 16, 1968 (P. L. 351, No. 173) (61 P. S. § 1052). A reference to this statute has been included so that the regulated community can be directed to further information about the Board of Pardon's hearing process. Because that process is within the authority of the Board, not the Department, it is not for the Department's regulations to elaborate upon what the process entails.
Fiscal Impact and Paperwork Requirements
Since the Department currently operates the State prison system substantially in accordance with the final-form rulemaking, it does not expect the final-form 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 rulemaking shall be effective upon final-form publication in the Pennsylvania Bulletin.
Sunset Date
No sunset date has been assigned; however, every facet of the final-form rulemaking will be continuously reviewed for effectiveness, clarity and whether it is 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 the notice of proposed rulemaking, published at 34 Pa.B. 3010 (June 12, 2004), to IRRC and the Chairpersons of the House and Senate Judiciary Committees for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on March 9, 2005, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on March 10, 2005, and approved the final-form rulemaking.
Contact Person
Further information is available by contacting John S. Shaffer, Ph.D., Executive Deputy Secretary, 2520 Lisburn Road, P. O. Box 598, Camp Hill, PA 17001-0598.
Findings
The Department finds that:
(1) Public notice of intention to adopt the amendments adopted by this order has been given 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 promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments received were considered.
(3) The modifications that were made to the final-form rulemaking in response to comments received do not enlarge the purpose of the proposed rulemaking published at 34 Pa. B. 3010.
(4) The modifications that were made to the final-form rulemaking in response to additional comments received do not enlarge the purpose of the proposed rulemaking published at 34 Pa.B. 3010.
(5) The adoption of the final-form rulemaking in the manner provided in this order is necessary and appropriate for the administration of the authorizing statute.
Order
The Department, acting under authority of the authorizing statute, orders that:
(a) The regulations of the Department, 37 Pa. Code Chapters 91, 93 and 94, are amended by amending §§ 93.303, 93.307 and 94.2 to read as set forth at 34 Pa.B. 3010 and by amending §§ 91.1, 91.6, 93.2, 93.3, 93.6, 93.7, 93.9, 93.10, 93.12, 94.3, 94.5 and 94.6 to read as set forth in Annex A
(b) The Secretary of the Department shall submit this order, 34 Pa.B. 3010 and Annex A to the Office of General Counsel and to the Office of Attorney General for review and approval as to legality and form, as required by law.
(c) The Secretary of the Department shall certify this order, 34 Pa.B. 3010 and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin.
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 35 Pa.B. 1942 (March 26, 2005).)
Fiscal Note: Fiscal Note 19-6 remains valid for the final adoption of the subject regulations.
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:
Board--Pennsylvania Board of Probation and Parole.
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 Department of Corrections Inmate Handbook, or any Department document that is disseminated 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.
Department--The Department of Corrections.
Department of Corrections Inmate Handbook--A document that is to be disseminated to inmates that contains all rules that an inmate shall follow to avoid discipline. It is updated through dissemination of written materials to inmates that describe the rule change when a change is made, or by dissemination of a revised handbook.
Diagnostic and classification center--Facilities designated to receive and classify persons who have been committed to the custody of the Department.
Facility--An institution, motivational boot camp or community corrections center operated or contracted by the Department.
Facility manager--The chief administrator of a facility, that is, the superintendent of an institution, the commander of a motivational boot camp or the director of a community corrections center.
Inmate--A person committed to the custody of or confined by the Department.
Resident--An inmate assigned to a community corrections center.
Secretary--The Secretary of the Department.
§ 91.6. Use of force and restraints.
(a) Force and restraints will be used by corrections personnel only to accomplish legitimate penological and law enforcement objectives.
(1) A staff member may not use any greater force against an inmate than is necessary to protect the staff member 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 that force is necessary to prevent death, serious bodily harm to the staff member or others, or to prevent one or more of the following:
(i) An escape from a correctional facility other than a community corrections center or while in immediate pursuit of an inmate escaping from a correctional facility other than a community corrections center.
(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 an offense involving the threat of physical force or violence against any individual.
(3) A staff member may use force against an inmate when he reasonably believes that force is necessary to prevent the escape of an inmate or to recapture an escaped inmate.
(4) Instruments of restraint will only be used as a precaution against escape, as protection against an inmate injuring himself or others or on medical grounds at a doctor's direction.
(b) Neither force nor restraints will be used for punishment or revenge.
(c) Use of chemical munitions will be closely controlled. Appropriate medical attention will be provided for any person involved in an incident where chemical munitions were used. Staff will follow the procedures set forth in DC-ADM 201--Use of Force--as to the availability and storage, method of use, training, medical staff role and reporting of the use of chemical munitions.
CHAPTER 93. STATE CORRECTIONAL INSTITUTIONS AND FACILITIES
Subchapter A. RIGHTS AND PRIVILEGES § 93.2. Inmate correspondence.
(a) Permitted correspondence. Inmates are permitted to correspond with friends, family members, attorneys, news media, legitimate business contacts and public officials. There may be no limit to the number of correspondents.
(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 approval of the facility manager or a designee.
(2) Correspondence containing threatening or obscene material, as well as correspondence containing criminal solicitation or furthering a criminal plan or institution misconduct is prohibited.
(3) An inmate shall refrain from writing to persons who have stated in writing that they do not wish to receive mail from the inmate. This will not be interpreted to restrict the right of inmates to correspond with public officials with respect to the official duties of the latter.
(4) Correspondence with prohibited parties through a third party is also prohibited.
(5) Mail addressed to an inmate organization will not be accepted unless the facility manager and Secretary have approved the organization and it is addressed to the staff coordinator of the organization.
(c) Incoming mail. 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:
(i) An attorney or authorized representative/designee may hand-deliver a sealed confidential client communication to an inmate if the attorney is unable to communicate through alternative means, if the following conditions are met:
(A) The person making the delivery does so during normal business hours unless granted permission in advance by the Secretary or a designee.
(B) The person making the delivery shall provide valid identification and information sufficient to verify that the person is the inmate's attorney or authorized representative of the attorney.
(C) The person making delivery shall present the documents for inspection for contraband, unsealed and unbound.
(D) Upon inspection, the documents will be sealed and delivered to the inmate where they will be unsealed and searched again for contraband.
(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) are followed.
(D) The Department may change the control number for any reason upon notice to the attorney who requested it.
(iii) A court may direct delivery of court documents sealed from public disclosure to an inmate by specific order. The court's representative shall deliver the sealed documents and the specific court order to the facility. Under no circumstances will documents filed in a court of public record be delivered sealed to an inmate.
(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.
(d) Outgoing mail. Sealed outgoing mail from an inmate will not be examined except as set forth in subsection (e).
(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 to inmates.
(2) The facility manager or a designee may read mail sealed in accordance with subsection (c)(1), only upon the written order of the facility manager with the written approval of the Secretary when there is reason to believe that there is a threat to facility security or criminal activity.
(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 will 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) A publication review committee consisting of staff designated by and reporting to the facility manager or a designee shall determine whether an inmate may receive a publication.
(2) Publications shall be received directly from a publisher, bookstore, book club, distributor or department store. Newspapers shall be mailed directly from the publisher.
(3) Publications may not be received by an inmate if they:
(i) Contain information regarding the manufacture of explosives, incendiaries, weapons, escape devices, poisons, drugs or intoxicating beverages or other contraband.
(ii) Advocate, assist or are evidence of criminal activity, inmate misconduct, violence, insurrection or guerrilla warfare against the government.
(iii) Threaten the security of a facility.
(iv) Contain obscene material as defined in 18 Pa.C.S. § 5903 (relating to obscene and other sexual materials and performances).
(v) Constitute a bulk mailing specifically intended for the purpose of advertising or selling merchandise.
(4) An inmate under 18 years of age may not receive explicit sexual materials as defined in 18 Pa.C.S. § 5903.
(5) A publication will not be prohibited solely on the basis that the publication is critical of penal institutions in general, of a particular facility, staff member, or official of the Department, or of a correctional or penological practice in this or any other jurisdiction.
(6) An inmate may receive only one copy of any publication unless granted permission by the publication review committee.
(7) Small letter sized pamphlets may be received in regular correspondence.
(8) Covers of hardbound publications may be damaged or removed during inspection in the discretion of mailroom staff.
§ 93.3. Inmate visiting privileges.
(a) Approved list of visitors. A list of approved visitors may contain up to 20 names or more if permitted by the Department. Inmates who can show that they have more than the number of visitors permitted by the Department may be permitted to add additional names to their approved lists. 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 18 years of age may visit only when accompanied by an adult approved by his parent or legal guardian and need not be placed separately on the official list. 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 approved 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 approved by the Department.
(1) The confidentiality of the attorney-client relationship will be honored. Personnel will not be stationed in a manner as to be able to overhear normal conversation.
(2) An attorney who has been designated by an inmate as the inmate's legal advisor may permit persons, such as law students or investigators to visit the inmate to act as the attorney's agents. Each person shall present to the facility at the time of the visit a written statement signed by the attorney on the letterhead of the firm of the attorney identifying each person as the attorney's agent and attesting that the visit is for the purpose of a legal consultation.
(3) Attorneys and their agents are subject to the same rules and regulations as other visitors.
(d) Former inmates. A former inmate may visit only with special permission of the facility manager.
(e) Prerelease inmates. Inmates in prerelease status may visit other inmates only with the approval of the Secretary or a designee. Application for permission to visit shall be made by both inmates through their respective facility managers.
(g) Initial 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 and shall reasonably accommodate family members.
(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. Visiting hours shall reasonably accommodate family members.
(3) Length of visits. Visits should be at least 1 hour in duration. The length of a visit depends on the inmate's program status and available space.
(4) Frequency of visits. One visit per inmate per week will be permitted. Additional visits may be permitted.
(5) Number of visitors at one time. The number of visitors an inmate may have at any one time may be limited depending upon the available space.
(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 Department of Corrections Inmate Handbook, or any Department document that is disseminated to inmates.
(7) Special visit. Provisions will be made for the approval of a special visit by persons who may not be on the approved list who have come a substantial distance and of a family visit to a seriously ill or injured inmate. Special visits will be approved only by the facility manager or a designee. Absent this approval, only those persons on the approved visiting list may visit.
(i) Restriction of visitation privileges.
(1) If a visit is a threat to the security and order of the facility, the visit may be terminated or disallowed.
(2) Outside visitors are subject to search before and after visiting.
(3) A visitor who cannot produce identification or who falsifies identifying information will not be allowed in the facility.
(4) Visitation may be restricted or suspended or special security precautions imposed for violation of visiting rules or as warranted by the temperament of the inmate involved.
(5) Restriction of visiting privileges will not be used as a disciplinary measure for an unrelated facility rule infraction. However, visiting privileges may be restricted as a result of changes in housing or program status made as a result of unrelated infractions.
(6) Normal visitation will be suspended during a state of emergency.
(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 approved by the Department.
(1) Media representatives may obtain a copy of the Department's policy regarding inmate visitation on the Department's website (www.cor.state.pa.us).
(2) Media representatives and inmates will abide by all applicable rules, regulations and policies of the Department while on facility property. Violations of any rules, regulations or policies of the Department may result in the visit being denied, termination of the visit, suspension of visiting privileges or revocation of visiting privileges.
(3) Visits with a media representative shall be subject to the frequency of visit limitations contained in subsection (h)(4).
(4) For inmates under a sentence of death and prior to the Governor's warrant being issued, media representatives will only be permitted to have noncontact visits with the inmate. After the Governor's warrant has been issued, noncontact visits will only be entertained if the media representative has obtained an order of court of competent jurisdiction granting the relief and has properly served the Department with the court documents seeking or requesting the relief prior to obtaining the order.
(5) Media representatives for the purpose of this section include: representatives of general circulation newspapers; magazines of general circulation sold through newsstands or mail subscriptions to the general public; and National/international news services or radio/television stations holding a Federal Communications Commission license.
§ 93.6. Religious activities.
(a) Department responsibilities. The Department will permit inmates to possess approved religious items and make reasonable accommodations for dietary restrictions. 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 and approved by the facility manager. Qualified representative means a person from the outside community who has received endorsement from his faith group authority. Qualified representatives, staff and 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 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 made according to DC-ADM 819--Religious Activities--which provides a process for inmates to request accommodations not already being provided and for staff review of the requests.
§ 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 Department of Corrections Inmate Handbook. Phone calls, except confidential communications between attorneys and inmates, will be subject to monitoring in accordance with 18 Pa.C.S. § 5704 (relating to exceptions to prohibition of interception and disclosure of communications).
(b) Phone calls to inmates will be permitted only if approved in advance by the facility manager or a designee.
§ 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 decision making 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. A frivolous grievance is one in which the allegations or the relief sought lack any arguable basis in fact as set forth in DC-ADM 804--Inmate Grievance System, which is disseminated to inmates.
(b) Inmates may also pursue available remedies in State and Federal court.
§ 93.10. Inmate discipline.
(a) Rules which define expectations and prohibitions for inmate behavior will be established by the Department and disseminated 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:
(i) Reduction of the classification of the misconduct to a Class II and any sanction permitted for Class II misconducts.
(ii) A sanction permitted for Class II misconducts, without change in class of misconduct.
(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 90 days for any one misconduct charge.
(iv) Change of program level.
(2) Inmates found guilty of Class II misconducts may be subjected to one or more of the following sanctions:
(i) Reprimand.
(ii) Suspension of privileges for a specified period of time.
(iii) Payment of the fair value of property lost or destroyed or for expenses incurred as a result of the misconduct.
(iv) Change of cell assignment excluding placement in the restricted housing unit.
(v) Change, suspension or removal from job.
(b) Written procedures which conform to established principles of law for inmate discipline including the following will be maintained by the Department and disseminated to the inmate population:
(1) Written notice of charges.
(2) Hearing before an impartial hearing examiner or an informal resolution process for charges specified by the Department in the Department of Corrections Inmate Handbook, or any Department document that is disseminated to inmates. The informal resolution process is described in DC-ADM 801--Inmate Discipline. The process gives inmates the option to meet with staff to resolve a misconduct rather than proceed with a hearing.
(3) Opportunity for the inmate to tell his story and to present relevant evidence.
(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 evidence.
(6) Opportunities to appeal the misconduct decision in accordance with procedures in the Department of Corrections Inmate Handbook.
§ 93.12. Prison Medical Services Program.
(a) Every institution will establish procedures to permit inmates to have access to health care professionals, prescribed treatment for serious medical needs, appropriate nutrition, exercise and personal hygiene items.
(b) The following words and phrases, when used in this section, have the following meanings unless the context clearly indicates otherwise:
Fee--The portion of the actual cost of a medical service provided to an inmate which the Department has determined shall be charged to the inmate.
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.
Inmate--A person confined to a correctional institution, motivational boot camp, community corrections center or other facility operated by the Department, its agent or contractor.
Medical service--
(i) The diagnosis, evaluation, treatment or preservation of the health of the human body, including its organs, structures and systems.
(ii) The term includes diagnostic testing, prescribing and administering medication, surgical procedures, dental care, eye care, the furnishing of prosthetics and any other type of treatment or preventative care, whether performed on an inpatient or outpatient basis.
(c) The Department will charge a fee to an inmate for any of the following:
(1) Nonemergency medical service provided to an inmate at the inmate's request.
(2) Medical service provided to the inmate as the result of a self-inflicted injury or illness, including emergency medical service provided to the inmate as the result of a self-inflicted injury or illness.
(3) Initial medication prescription except as provided in subsection (d)(2), (14), (16) and (17).
(4) Medical service provided to another inmate as a result of assaultive conduct engaged in by an inmate to be charged the fee.
(5) Medical service provided to an inmate as a result of an injury or illness arising from the inmate's participation in a sport.
(6) Medical service provided to an inmate to determine whether the inmate's physical condition is suitable for participation in a sport unless the medical service is provided as part of an inmate's physical examination scheduled by the Department.
(d) The Department will not charge a fee to an inmate for any of the following:
(1) Physical, dental or mental health screening provided to an inmate upon intake.
(2) Immunization, tuberculosis test, Hepatitis B vaccination or other treatment initiated by the Department for public health reasons.
(3) Institution transfer screening.
(4) Physical and dental examination scheduled by the Department.
(5) Medical service provided to an inmate during a follow-up appointment scheduled by a health care professional employed by the Department or its contractors.
(6) Mental health treatment.
(7) Medical treatment for a chronic or intermittent disease or illness.
(8) Infirmary care in a Department facility.
(9) Hospitalization outside of a Department 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 or through personal or skilled care because of age, illness, disease, injury, convalescence or physical or mental infirmity.
(11) Medical referral ordered by a health care professional employed by the Department or its contractors.
(12) Medical service provided to an inmate during a medical emergency unless the medical emergency resulted from a self-inflicted injury or illness as determined by the health care professional providing the medical service.
(13) Laboratory test, electrocardiogram, dressing change or other treatment ordered by a health care professional employed by the Department or its contractors.
(14) Prenatal care.
(15) Medical service provided as a result of an injury or illness arising from an inmate's institutional work assignment.
(16) Medication prescription subsequent to the initial medication prescription provided to an inmate for the same illness or condition.
(17) Social service program including, but not limited to, substance abuse groups and counseling.
(18) Psychotropic medication.
(19) Medication prescribed for an inmate for public health reasons.
(20) Physical, dental and mental health screening performed at the request of the Department.
(21) Medical service provided to an inmate to determine whether his physical condition is suitable for an institutional work assignment.
(22) Eyeglass prescription.
(23) Dentures.
(24) Prosthetic devices excluding customized items.
(e) The fee for any medical service in subsection (c) is $3. 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 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.
(2) Each inmate shall receive 60 days written notice of the implementation of the Prison Medical Services Program.
(3) Each inmate shall receive written notice of any changes in medical service fees and payment procedures at least 60 days after the effective date of a regulation that modifies the fee for medical services and payment procedures.
(f) Payment for any medical service in subsection (c) shall be accomplished according to the following procedures:
(1) At the time any medical service is to be provided to an inmate, the inmate will be informed by the Department or a health care professional contracted by the Department whether a fee will be charged for the medical service and will be provided with an authorization form. The authorization form will describe the medical service to be provided and authorize the institution to deduct the fee from the inmate's account.
(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. 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.
(3) The Department may seek to recover any amount owed for medical services fees by an inmate upon release under section 5 of the Prisoner Medical Services Act (61 P. S. § 1015).
(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.
(h) The Department will include an explanation of the program in the Department of Corrections Inmate Handbook.
CHAPTER 94. RELEASE AND PRERELEASE PROGRAMS § 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 specified by the Department in the Department of Corrections Inmate Handbook, DC-ADM 805--Policy and Procedures for Obtaining Pre-release--or any Department document that is disseminated to inmates are not eligible.
(2) Time-served requirements are as follows:
(i) To be time-eligible for placement in a community corrections center or group home, the inmate shall have completed at least one-half of the inmate's minimum sentence, be within 1 year of completing his minimum sentence, have no outstanding detainers, and have served at least 9 months in a facility. Exceptions may be made with written approval of the Secretary or a designee, when early transfer is necessary to assist in the inmate's access to medical or mental health care or to provide longer period of participation for an inmate who has been confined for an unusually long period of time. A contact may not be made with the court until the approval is obtained.
(ii) For other prerelease programs, the inmate is time-eligible after the inmate has completed one-half of the inmate's minimum sentence or one-half of the period ending with anticipated release date of an indeterminate sentence and has served at least 9 months in a facility. The inmate may have no detainers lodged against him for an untried offense or for a sentence with a maximum term in excess of 2 years. Inmates who are otherwise time-eligible who have detainers lodged against them for less than 2 years can be time-eligible for a prerelease program except community corrections center or group home upon written approval of the Secretary or a designee. No contact may be made with the court until the approval is obtained.
(3) The inmate shall have favorable recommendation of the correctional facility staff--for example, counselor, work supervisor, housing officer, education/vocational supervisor and deputy facility managers for treatment and operations.
(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 misconduct and no more than one Class II misconduct from the time of application to the time of transfer.
(5) The inmate shall obtain a medical clearance by the facility medical officer.
(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 Department of Corrections Inmate Handbook, or any Department document that is disseminated to inmates that requires approval.
(7) If the inmate has not completed his minimum sentence, the notice process in § 94.5 (relating to notification process) shall be followed.
(8) Applications for transfer to community corrections require evaluation and concurrence by the staff of the appropriate region of community corrections and approval by the Director of Community Corrections.
(9) The inmate shall execute a written 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.
(10) After transfer into a prerelease program, the inmate may continue to participate in the program only while adequate resources are available to provide care, custody and control for the inmate within the program to which the inmate has been admitted. The inmate's privilege to participate in prerelease programs may be suspended or revoked for administrative or disciplinary reasons. The Department will establish procedures to govern the revocation of prerelease privileges.
(b) The process of obtaining prerelease transfer is initiated when an inmate submits an application to the inmate's counselor for participation in work/educational/vocational release, or for a temporary home furlough or for transfer to a community corrections placement. An inmate will not be granted prerelease transfer for any purpose unless the inmate satisfies all of the criteria in this section. Satisfying the eligibility criteria for prerelease transfer does not mean the inmate will automatically be permitted to participate in prerelease programs. Other considerations such as the staff's evaluation of the inmate's progress, the relevancy of the particular prerelease program to the inmate's reintegration, the safety of the community and the victim of the inmate's crime and the availability of space will be taken into consideration. Approval for participation in one prerelease program does not imply clearance for, or preclude application for participation in any other program. The application must specify a particular prerelease program.
(c) Special exception to subsection (a) or (b), other than subsection (a)(1), (2)(ii) and (6)--(9), may be recommended in writing by a facility manager to the Secretary or a designee.
(d) Inmates serving Federal sentences in facilities shall be eligible for prerelease transfer under rules and regulations established by the United States Department of Justice, Federal Bureau of Prisons, and subject to subsections (a) and (b), and the subsequent approval of Federal and State authorities.
(e) Inmates serving sentences from other jurisdictions under the Interstate Corrections Compact (61 P. S. §§ 1061--1063) are eligible subject to subsections (a) and (b) and the sending state's written approval.
§ 94.5. Notification process.
(a) If the facility manager approves an inmate's application for prerelease transfer, the facility manager shall notify the sentencing judge or if the sentencing judge is unavailable, the sentencing court, and the prosecuting district attorney's office by certified mail, of the inmate's proposed prerelease program. Comments will be considered.
(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 the 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 a hearing in accordance with section 2 of the act of July 16, 1968 (P. L. 351, No. 173) (61 P. S. § 1052).
§ 94.6. Staff responsibilities.
(a) It is the primary responsibility of the inmate's counselor to process the inmate's application for participation in prerelease programs.
(1) The inmate's counselor is responsible for obtaining, integrating and coordinating the information necessary to determine the inmate's eligibility or noneligibility for participation in a prerelease program.
(2) The inmate's counselor will accept and review the inmate's application. If necessary, the counselor may help the inmate initiate this process. The inmate's counselor will also be responsible for having the housing officer, work supervisor and other appropriate staff complete relevant portions of the application and make recommendations concerning prerelease programming.
(3) The inmate's counselor shall verify, with the record officer, the necessary information with respect to the inmate's sentence and detainer status.
(4) The inmate's counselor will review and verify available information relevant to eligibility--for example, presentence investigation report, judge's sentencing notes, classification and reclassification summary records and cumulative adjustment record.
(5) The inmate's counselor will request proper psychological and psychiatric evaluations for those applicants who have a history of mental or emotional disorders, violent crimes or other situations when deemed advisable. The inmate's counselor may contact other persons and agencies to acquire additional information.
(6) When the necessary information has been obtained, the inmate's counselor will refer the application to his supervisors for review.
(b) It is the primary responsibility of the Corrections Classification Program Manager (CCPM) or other staff person designated by the facility manager to coordinate the staff evaluation and recommendation process.
(1) The 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 Centralized Services and the Deputy Superintendent for 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 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.
(e) The inmate's counselor shall discuss with the inmate prior to the commencement of the program, the objectives, rules and regulations of the program and obtain written agreement as provided for in § 94.3(a)(9) (relating to procedures for participation in prerelease programs). The counselor shall review the program objectives on the inmate's cumulative adjustment record.
[Pa.B. Doc. No. 05-703. Filed for public inspection April 15, 2005, 9:00 a.m.]
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