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[Federal Register Volume 76, Number 131 (Friday, July 8, 2011)]
[Rules and Regulations]
[Pages 40229-40233]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17160]

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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 549

[BOP-1088-F]
RIN 1120-AB20

Psychiatric Evaluation and Treatment

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) finalizes 
regulations on providing psychiatric treatment and medication to 
inmates. These revised regulations are clarified and updated to reflect 
current caselaw.

DATES: This rule is effective on August 12, 2011.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General 
Counsel, Bureau of Prisons, phone (202) 307-2105.

SUPPLEMENTARY INFORMATION: The Bureau finalizes regulations on

[[Page 40230]]

providing psychiatric treatment and medication to inmates. We first 
published a proposed regulation document on this subject in the Federal 
Register on December 29, 2003 (68 FR 74892). We then withdrew that 
proposed regulation document and proposed revised regulations on June 
16, 2008 (73 FR 33957). We received four comments, which we address 
below.
    Two commenters addressed Sec.  549.45(b) of the proposed 
regulation, which states that, ``[p]ursuant to 18 U.S.C. Sec.  4042, 
the Bureau is authorized to provide for the safekeeping, care, and 
subsistence, of all persons charged with offenses against the United 
States, or held as witnesses or otherwise. Accordingly, if an examiner 
determines pursuant to Sec.  549.43 of this subpart that an inmate not 
subject to hospitalization pursuant to 18 U.S.C. Chapter 313 should be 
hospitalized for psychiatric care or treatment, and the inmate is 
unwilling or unable to consent, the Bureau will provide the inmate with 
an administrative hearing to determine whether hospitalization for 
psychiatric care or treatment is warranted. The hearing will comply 
with the applicable procedural safeguards set forth in Sec.  
549.46(a).''
    The commenters believe that ``the administrative hearing process'' 
under this section ``is a standard that provides less procedural 
protection to the inmate than does a court determination.'' The 
commenters felt that ``such a standard is unreasonable and unfair to 
the inmates covered by Sec.  549.45(b)'' because these inmates may 
include ``material witnesses and other detainees who may not have been 
convicted,'' and are, therefore, ``entitled to a level of review equal 
to or surpassing that of sentenced inmates.''
    In response, we note that proposed Sec.  549.45 states that a court 
determination is necessary for involuntary hospitalization or 
commitment of inmates pursuant to 18 U.S.C. Chapter 313, who are in 
need of psychiatric care or treatment, but are unwilling or unable to 
voluntarily consent. Section 4245 in that chapter specifically provides 
for involuntary hospitalization by court order of a person serving a 
sentence of imprisonment if needed for psychiatric care or treatment. 
The necessity of a court determination for these types of inmates is, 
therefore, prescribed by statute.
    In contrast, however, no court determination is prescribed by 
statute with regard to involuntary hospitalization of inmates who are 
not subject to hospitalization under 18 U.S.C. 4245 (because not 
serving a sentence of imprisonment), such as alien detainees subject to 
an order of deportation, exclusion or removal, material witnesses, 
contempt of court commitments, etc.
    Nevertheless, the Director has chosen to provide administrative due 
process with regard to involuntary hospitalization of such inmates, 
``[b]ecause prisoners facing involuntary transfer to a mental hospital 
are threatened with immediate deprivation of liberty interests they are 
currently enjoying, and because of the inherent risk of a mistaken 
transfer,'' adhering to the principles set forth in Vitek v. Jones, 445 
U.S. 480 at 495, 100 S.Ct. 1254 at 1265 (1980).
    We note that the availability of this administrative hearing 
procedure in appropriate cases does not limit the Bureau's ability to 
seek judicial hospitalization or commitment of inmates under any 
applicable provision of Chapter 313, such as judicial commitment of 
inmates, whether sentenced or unsentenced, as sexually dangerous 
persons under 18 U.S.C. 4248.
    However, because the commenters appear to question or misunderstand 
the due process procedures that the Bureau implements through this 
final rule that specifically apply to the involuntary hospitalization 
of inmates who are not subject to hospitalization under 18 U.S.C. 4245, 
we alter Sec.  549.45(b) as follows: We delete the reference to the due 
process procedures in Sec.  549.46(a) and simply restate them, tailored 
for reference to involuntary hospitalization instead of involuntary 
administration of psychiatric medication, in the relevant regulation, 
Sec.  549.45(b).
    Also, the American Psychiatric Association (APA) and the American 
Civil Liberties Union (ACLU) commented regarding the Bureau's use of 
the phrase `qualified health services staff' in Sec.  549.44 of the 
proposed regulation. The APA recommended that the Bureau ``clarify this 
section by either revising the proposed language in the regulation or 
issuing a policy guide which defines which personnel are considered 
`qualified health services staff' for the purposes of these sections.'' 
The ACLU provided a similar comment. The Bureau will issue a policy 
guide, as suggested by the APA, which will clarify the qualifications 
for staff with regard to voluntary hospitalization in a suitable 
facility for psychiatric care or treatment, and voluntary 
administration of psychiatric medication. Bureau policy guides are 
called Program Statements, and are designed specifically to provide 
more detailed staff guidance with regard to implementing Bureau 
regulations, policies, and programs. Because Program Statements are the 
primary vehicle for staff guidance, it would be appropriate to detail 
health services staff qualifications in the relevant Bureau Program 
Statements.
    Also, the APA would ``urge that [the Bureau] state that only 
licensed physicians are qualified to make decisions about the 
administration of psychopharmacologic medications and that, when 
possible, a psychiatrist should be consulted. This clarification would 
provide assurance that inmates are receiving appropriate mental health 
treatment and that consent to any hospitalization or medication is 
truly warranted and voluntary and meets state and Federal law 
requirements.'' Likewise, the ACLU commented that ``the regulations 
should be amended to clarify that the exception authorizing more 
cursory procedures for emergencies requires that any treatment be 
`medically' appropriate, even in an emergency.''
    In response, we state that Bureau policy currently requires that 
psychiatric medications be prescribed only by Bureau medical health 
professionals that have a permanent, full, and unrestricted license to 
practice medicine in a state, District of Columbia, the Commonwealth of 
Puerto Rico, or a territory of the United States. Bureau policy on 
pharmacy services is predicated on the requirement that the use of 
psychiatric medications and controlled substances be restricted to 
physicians only and prescribed only when medically appropriate. 
Further, if an order for psychiatric medication is prepared or written 
by a mid-level practitioner (Physician's Assistant or Nurse 
Practitioner), it must be signed by a licensed physician before it can 
be filled by a pharmacist.
    Another commenter suggested that the Bureau ``recognize psychiatric 
advance practice nurses as part of the treatment team in correctional 
facilities.'' While the Bureau does utilize nurse practitioners, 
physician's assistants, and nurses, as stated above, any prescription 
for psychiatric medication must be signed by a licensed physician.
    For the aforementioned reasons, we now finalize the proposed rule 
published on June 16, 2008 (73 FR 33957), with minor changes for 
clarity.

Executive Order 12866

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review'', section 
1(b), Principles of

[[Page 40231]]

Regulation. The Director has determined that this regulation is not a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), and accordingly this regulation has not been reviewed by the 
Office of Management and Budget.

Executive Order 13132

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, under Executive Order 13132, 
we determine that this regulation does not have sufficient Federalism 
implications to warrant the preparation of a Federalism Assessment.

Regulatory Flexibility Act

    The Director, under the Regulatory Flexibility Act (5 U.S.C. 
605(b)), reviewed this regulation and by approving it certifies that it 
will not have a significant economic impact upon a substantial number 
of small entities for the following reasons: This regulation pertains 
to the correctional management of offenders committed to the custody of 
the Attorney General or the Director, and its economic impact is 
limited to the Bureau's appropriated funds.

Unfunded Mandates Reform Act of 1995

    This regulation will not result in the expenditure by State, local 
and Tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This regulation is not a major rule as defined by Sec.  804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This 
regulation will not result in an annual effect on the economy of 
$100,000,000 or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

List of Subjects in 28 CFR Part 549

    Prisoners.

Thomas R. Kane,
Acting Director, Federal Bureau of Prisons.

    Under the rulemaking authority vested in the Attorney General in 5 
U.S.C. 552(a) and delegated to the Director, Bureau of Prisons, we 
amend 28 CFR part 549 as follows.

PART 549--MEDICAL SERVICES

0
1. Revise the authority citation for 28 CFR part 549 to read as 
follows:

    Authority:  5 U.S.C. 301; 10 U.S.C. 876b; 18 U.S.C. 3621, 3622, 
3524, 4001, 4005, 4042, 4045, 4081, 4082 (Repealed in part as to 
offenses committed on or after November 1, 1987), Chapter 313, 5006-
5024 (Repealed October 12, 1984 as to offenses committed after that 
date), 5039; 28 U.S.C. 509, 510.

0
2. Revise subpart C of part 549 to read as follows:
Subpart C--Psychiatric Evaluation and Treatment
Sec.
549.40 Purpose and scope.
549.41 Hospitalization in a suitable facility.
549.42 Use of psychiatric medications.
549.43 Transfer for psychiatric or psychological examination.
549.44 Voluntary hospitalization in a suitable facility for 
psychiatric care or treatment and voluntary administration of 
psychiatric medication.
549.45 Involuntary hospitalization in a suitable facility for 
psychiatric care or treatment.
549.46 Procedures for involuntary administration of psychiatric 
medication.

Subpart C--Psychiatric Evaluation and Treatment

Sec.  549.40  Purpose and scope.

    (a) This subpart describes procedures for voluntary and involuntary 
psychiatric evaluation, hospitalization, care, and treatment, in a 
suitable facility, for persons in Bureau of Prisons (Bureau) custody. 
These procedures are authorized by 18 U.S.C. Chapter 313 and 18 U.S.C. 
4042.
    (b) This subpart applies to inmates in Bureau custody, as defined 
in 28 CFR part 500.

Sec.  549.41  Hospitalization in a suitable facility.

    As used in 18 U.S.C. Chapter 313 and this subpart, 
``hospitalization in a suitable facility'' includes the Bureau's 
designation of inmates to medical referral centers or correctional 
institutions that provide the required care or treatment.

Sec.  549.42  Use of psychiatric medications.

    Psychiatric medications will be used only for treatment of 
diagnosable mental illnesses and disorders, and their symptoms, for 
which such medication is accepted treatment. Psychiatric medication 
will be administered only after following the applicable procedures in 
this subpart.

Sec.  549.43  Transfer for psychiatric or psychological examination.

    The Bureau may transfer an inmate to a suitable facility for 
psychiatric or psychological examination to determine whether 
hospitalization in a suitable facility for psychiatric care or 
treatment is needed.

Sec.  549.44  Voluntary hospitalization in a suitable facility for 
psychiatric care or treatment, and voluntary administration of 
psychiatric medication.

    (a) Hospitalization. An inmate may be hospitalized in a suitable 
facility for psychiatric care or treatment after providing informed and 
voluntary consent when, in the professional medical judgment of 
qualified health services staff, such care or treatment is required and 
prescribed.
    (b) Psychiatric medication. An inmate may also provide informed and 
voluntary consent to the administration of psychiatric medication that 
complies with the requirements of Sec.  549.42 of this subpart.
    (c) Voluntary consent. An inmate's ability to provide informed and 
voluntary consent for both hospitalization in a suitable facility for 
psychiatric care or treatment, and administration of psychiatric 
medications, will be assessed by qualified health services staff and 
documented in the inmate's medical record. Additionally, the inmate 
must sign a consent form to accept hospitalization in a suitable 
facility for psychiatric care or treatment and the administration of 
psychiatric medications. These forms will be maintained in the inmate's 
medical record.

Sec.  549.45  Involuntary hospitalization in a suitable facility for 
psychiatric care or treatment.

    (a) Hospitalization of inmates pursuant to 18 U.S.C. Chapter 313. A 
court determination is necessary for involuntary hospitalization or 
commitment of inmates pursuant to 18 U.S.C. Chapter 313, who are in 
need of psychiatric care or treatment, but are unwilling or unable to 
voluntarily consent.
    (b) Hospitalization of inmates not subject to hospitalization 
pursuant to 18 U.S.C. chapter 313. Pursuant to 18

[[Page 40232]]

U.S.C. 4042, the Bureau is authorized to provide for the safekeeping, 
care, and subsistence, of all persons charged with offenses against the 
United States, or held as witnesses or otherwise. Accordingly, if an 
examiner determines pursuant to Sec.  549.43 of this subpart that an 
inmate not subject to hospitalization pursuant to 18 U.S.C. chapter 313 
should be hospitalized for psychiatric care or treatment, and the 
inmate is unwilling or unable to consent, the Bureau will provide the 
inmate with an administrative hearing to determine whether 
hospitalization for psychiatric care or treatment is warranted. The 
hearing will provide the following procedural safeguards:
    (1) The inmate will not be involuntarily administered psychiatric 
medication before the hearing except in the case of psychiatric 
emergencies, as defined in Sec.  549.46(b)(1).
    (2) The inmate must be provided 24-hours advance written notice of 
the date, time, place, and purpose, of the hearing, including an 
explanation of the reasons for the proposal to hospitalize the inmate 
for psychiatric care or treatment.
    (3) The inmate must be informed of the right to appear at the 
hearing, to present evidence, to have a staff representative, to 
request witnesses, and to request that witnesses be questioned by the 
staff representative or by the person conducting the hearing. If the 
inmate does not request a staff representative, or requests a staff 
representative with insufficient experience or education, or one who is 
not reasonably available, the institution mental health division 
administrator must appoint a qualified staff representative.
    (4) The hearing is to be conducted by a psychiatrist other than the 
attending psychiatrist, and who is not currently involved in the 
diagnosis or treatment of the inmate.
    (5) Witnesses should be called if they are reasonably available and 
have information relevant to the inmate's mental condition or need for 
hospitalization. Witnesses who will provide only repetitive information 
need not be called.
    (6) A treating/evaluating psychiatrist/clinician, who has reviewed 
the case, must be present at the hearing and must present clinical data 
and background information relative to the inmate's need for 
hospitalization. Members of the treating/evaluating team may also be 
called as witnesses at the hearing to provide relevant information.
    (7) The psychiatrist conducting the hearing must determine whether 
involuntary hospitalization is necessary because the inmate is 
presently suffering from a mental disease or defect for the treatment 
of which he is in need of custody for care or treatment in a suitable 
facility.
    (8) The psychiatrist must prepare a written report regarding the 
initial decision. The inmate must be promptly provided a copy of the 
initial decision report, and informed that he/she may appeal it to the 
institution's mental health division administrator. The inmate's 
appeal, which may be handwritten, must be submitted within 24 hours 
after receipt of the hearing officer's report. Upon request of the 
inmate, the staff representative will assist the inmate in preparing 
and submitting the appeal.
    (9) If the inmate appeals the initial decision, hospitalization 
must not occur before the administrator issues a decision on the 
appeal. The inmate's appeal will ordinarily be reviewed by the 
administrator or his designee within 24 hours of its submission. The 
administrator will review the initial decision and ensure that the 
inmate received all necessary procedural protections, and that the 
justification for hospitalization is appropriate.
    (c) Psychiatric medication. Following an inmate's involuntary 
hospitalization for psychiatric care or treatment as provided in this 
section, psychiatric medication may be involuntarily administered only 
after following the administrative procedures provided in Sec.  549.46 
of this subpart.

Sec.  549.46  Procedures for involuntary administration of psychiatric 
medication.

    Except as provided in paragraph (b) of this section, the Bureau 
will follow the administrative procedures of paragraph (a) of this 
section before involuntarily administering psychiatric medication to 
any inmate.
    (a) Procedures. When an inmate is unwilling or unable to provide 
voluntary written informed consent for recommended psychiatric 
medication, the inmate will be scheduled for an administrative hearing. 
The hearing will provide the following procedural safeguards:
    (1) Unless an exception exists as provided in paragraph (b) of this 
section, the inmate will not be involuntarily administered psychiatric 
medication before the hearing.
    (2) The inmate must be provided 24-hours advance written notice of 
the date, time, place, and purpose, of the hearing, including an 
explanation of the reasons for the psychiatric medication proposal.
    (3) The inmate must be informed of the right to appear at the 
hearing, to present evidence, to have a staff representative, to 
request witnesses, and to request that witnesses be questioned by the 
staff representative or by the person conducting the hearing. If the 
inmate does not request a staff representative, or requests a staff 
representative with insufficient experience or education, or one who is 
not reasonably available, the institution mental health division 
administrator must appoint a qualified staff representative.
    (4) The hearing is to be conducted by a psychiatrist other than the 
attending psychiatrist, and who is not currently involved in the 
diagnosis or treatment of the inmate.
    (5) Witnesses should be called if they are reasonably available and 
have information relevant to the inmate's mental condition or need for 
psychiatric medication. Witnesses who will provide only repetitive 
information need not be called.
    (6) A treating/evaluating psychiatrist/clinician, who has reviewed 
the case, must be present at the hearing and must present clinical data 
and background information relative to the inmate's need for 
psychiatric medication. Members of the treating/evaluating team may 
also be called as witnesses at the hearing to provide relevant 
information.
    (7) The psychiatrist conducting the hearing must determine whether 
involuntary administration of psychiatric medication is necessary 
because, as a result of the mental illness or disorder, the inmate is 
dangerous to self or others, poses a serious threat of damage to 
property affecting the security or orderly running of the institution, 
or is gravely disabled (manifested by extreme deterioration in personal 
functioning).
    (8) The psychiatrist must prepare a written report regarding the 
initial decision. The inmate must be promptly provided a copy of the 
initial decision report, and informed that he/she may appeal it to the 
institution's mental health division administrator. The inmate's 
appeal, which may be handwritten, must be submitted within 24 hours 
after receipt of the hearing officer's report. Upon request of the 
inmate, the staff representative will assist the inmate in preparing 
and submitting the appeal.
    (9) If the inmate appeals the initial decision, psychiatric 
medication must not be administered before the administrator issues a 
decision on the appeal, unless an exception exists as provided in 
paragraph (b) of this section. The inmate's appeal will ordinarily be 
reviewed by the administrator or his designee within 24

[[Page 40233]]

hours of its submission. The administrator will review the initial 
decision and ensure that the inmate received all necessary procedural 
protections, and that the justification for administering psychiatric 
medication is appropriate.
    (10) If an inmate was afforded an administrative hearing which 
resulted in the involuntary administration of psychiatric medication, 
and the inmate subsequently consented to the administration of such 
medication, and then later revokes his consent, a follow-up hearing 
will be held before resuming the involuntary administration of 
psychiatric medication. All such follow-up hearings will fully comply 
with the procedures outlined in paragraphs (a)(1) through (10) of this 
section.
    (b) Exceptions. The Bureau may involuntarily administer psychiatric 
medication to inmates in the following circumstances without following 
the procedures outlined in paragraph (a) of this section:
    (1) Psychiatric emergencies.
    (i) During a psychiatric emergency, psychiatric medication may be 
administered only when the medication constitutes an appropriate 
treatment for the mental illness or disorder and its symptoms, and 
alternatives (e.g., seclusion or physical restraint) are not available 
or indicated, or would not be effective. If psychiatric medication is 
still recommended after the psychiatric emergency, and the emergency 
criteria no longer exist, it may only be administered after following 
the procedures in Sec. Sec.  549.44 or 549.46 of this subpart.
    (ii) For purposes of this subpart, a psychiatric emergency exists 
when a person suffering from a mental illness or disorder creates an 
immediate threat of:
    (A) Bodily harm to self or others;
    (B) Serious destruction of property affecting the security or 
orderly running of the institution; or
    (C) Extreme deterioration in personal functioning secondary to the 
mental illness or disorder.
    (2) Court orders for the purpose of restoring competency to stand 
trial. Absent a psychiatric emergency as defined above, Sec.  549.46(a) 
of this subpart does not apply to the involuntary administration of 
psychiatric medication for the sole purpose of restoring a person's 
competency to stand trial. Only a Federal court of competent 
jurisdiction may order the involuntary administration of psychiatric 
medication for the sole purpose of restoring a person's competency to 
stand trial.

[FR Doc. 2011-17160 Filed 7-7-11; 8:45 am]
BILLING CODE 4410-05-P
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