FEDERAL TRADE COMMISSION / DEPARTMENT OF JUSTICE
Federal Trade Commission (“FTC”)
Antitrust Division of the Department of Justice (“DOJ”)
Statement of Antitrust Enforcement Policy Regarding Accountable Care
Organizations Participating in the Medicare Shared Savings Program
AGENCIES: FTC, DOJ
ACTION: Final Policy Statement
SUMMARY: The FTC and DOJ (the “Agencies”) are issuing the final Statement of
Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating
in the Medicare Shared Savings Program (the “Policy Statement”) in conjunction with
the final rule issued today by the Centers for Medicare and Medicaid Services (“CMS”)
under Section 3022 of the Affordable Care Act (the Patient Protection and Affordable
Care Act, Pub. L. 111-48, 124 Stat. 119 (2010), and the Health Care and Education
Reconciliation Act of 2010, Pub. L. 111-52, 124 Stat. 1029 (2010)).
The final Policy Statement differs from the proposed Policy Statement issued earlier this
year, 76 Fed. Reg. 21,894 (Apr. 19, 2011), in two significant respects. First, the entire
final Policy Statement—with the exception of the voluntary expedited antitrust review—
applies to all collaborations among otherwise independent providers and provider groups
that are eligible and intend, or have been approved, to participate in the Medicare Shared
Savings Program (the “Shared Savings Program”); its applicability is no longer limited to
those collaborations formed after March 23, 2010, the date on which the Patient
Protection and Affordable Care Act was enacted. Second, because the Shared Savings
Program final rule will no longer require a mandatory antitrust review for certain
collaborations as a condition of entry into the Shared Savings Program, the final Policy
Statement no longer contains provisions relating to mandatory antitrust review.
However, as discussed in the final rule, the Agencies will continue to protect competition
in markets served by accountable care organizations (“ACOs”) that participate in the
Shared Savings Program, aided by data and information from CMS that will assist the
Agencies in monitoring the competitive effects of ACOs. Specifically, CMS will provide
the Agencies with aggregate claims data regarding allowed charges and fee-for-service
payments for all ACOs accepted into the Shared Savings Program and also with copies of
all of the applications to the Shared Savings Program of ACOs formed after March 23,
2010. The Agencies will vigilantly monitor complaints about an ACO’s formation or
conduct and take whatever enforcement action may be appropriate. Additionally, upon
request, the Agencies will provide an expedited 90 day review for newly formed ACOs
that wish to obtain additional antitrust guidance.

1

SUPPLEMENTARY INFORMATION
Statement of Antitrust Enforcement Policy
Regarding Accountable Care Organizations
Participating in the Medicare Shared Savings Program
I.

Introduction

The Patient Protection and Affordable Care Act and the Health Care and
Education Reconciliation Act of 2010 (collectively, the “Affordable Care Act”) seek to
improve the quality and reduce the costs of health care services in the United States by,
among other things, encouraging physicians, hospitals, and other health care providers to
become accountable for a patient population through integrated health care delivery
systems.1 One delivery system reform is the Affordable Care Act’s Medicare Shared
Savings Program (the “Shared Savings Program”), which promotes the formation and
operation of Accountable Care Organizations (“ACOs”2) to serve Medicare fee-forservice beneficiaries.3 Under this provision, “groups of providers of services and
suppliers meeting criteria specified by the [Department of Health and Human Services]
Secretary may work together to manage and coordinate care for Medicare fee-for-service
beneficiaries through an [ACO].”4 An ACO may share in some portion of any savings it
creates if the ACO meets certain quality performance standards established by the
Secretary of Health and Human Services through the Centers for Medicare and Medicaid
Services (“CMS”). The Affordable Care Act requires an ACO that wishes to participate
in the Shared Savings Program to enter into an agreement with CMS for not less than
three years.5
Recent commentary suggests that some health care providers are likely to create
and participate in ACOs that serve both Medicare beneficiaries and commercially insured
patients.6 The Federal Trade Commission and the Antitrust Division of the Department
of Justice (the “Agencies”) recognize that ACOs may generate opportunities for health
care providers to innovate in both the Medicare and commercial markets and achieve for
many other consumers the benefits Congress intended for Medicare beneficiaries through
the Shared Savings Program. Therefore, to maximize and foster opportunities for ACO
innovation and better health for patients, the Agencies wish to clarify their antitrust
enforcement policy regarding collaborations among independent providers that seek to
become ACOs in the Shared Savings Program. The Agencies recognize that not all such
1

Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-52, 124 Stat. 1029 (2010);
Patient Protection and Affordable Care Act, Pub. L. No. 111-48, 124 Stat. 119 (2010).
2
As used in this document, “ACO” refers to Accountable Care Organizations under the Medicare Shared
Savings Program, which also may operate in commercial markets. Patient Protection and Affordable Care
Act § 3022, 124 Stat. at 395-99.
3
Id.
4
Id. at 395.
5
Id. at 396.
6
Fed. Trade Comm’n & Dep’t of Health and Human Serv., Workshop Regarding Accountable Care
Organizations, and Implications Regarding Antitrust, Physician Self-Referral, Anti-Kickback, and Civil
Monetary Penalty (CMP) Laws (Oct. 5, 2010).

2

ACOs are likely to benefit consumers, and under certain conditions ACOs could reduce
competition and harm consumers through higher prices or lower quality of care. Thus,
the antitrust analysis of ACO applicants to the Shared Savings Program seeks to protect
both Medicare beneficiaries and commercially insured patients from potential
anticompetitive harm while allowing ACOs the opportunity to achieve significant
efficiencies.
To achieve these goals, the Agencies have developed this Statement of Antitrust
Enforcement Policy Regarding Accountable Care Organizations Participating in the
Medicare Shared Savings Program (the “Policy Statement”). The Policy Statement is
intended to ensure that health care providers have the antitrust clarity and guidance
needed to form procompetitive ACOs that participate in both the Medicare and
commercial markets. The Policy Statement describes (l) the ACOs to which the Policy
Statement will apply;7 (2) when the Agencies will apply rule of reason treatment to those
ACOs; (3) an antitrust safety zone; and (4) additional antitrust guidance for ACOs that
are outside the safety zone, including a voluntary expedited antitrust review process for
newly formed ACOs.8
II.

Applicability of the Policy Statement

The Policy Statement applies to collaborations among otherwise independent
providers and provider groups9 that are eligible and intend, or have been approved, to
participate in the Shared Savings Program. For ease of reference, the Policy Statement
refers to such collaborations as ACOs, although they may not yet have been approved to
participate as ACOs in the Shared Savings Program. The Policy Statement refers to the
otherwise independent providers and provider groups that constitute the ACO as ACO
participants.10 The Policy Statement does not apply to mergers. Merger transactions,
including transactions that meet the criteria set forth in Section 1.3 of the Antitrust
Guidelines for Collaborations Among Competitors,11 will be evaluated under the
Agencies’ Horizontal Merger Guidelines.12 The Policy Statement also does not apply to
single, fully integrated entities.
7

The analytical principles underlying the Policy Statement also would apply to various ACO initiatives
undertaken by the Innovation Center within CMS as long as those ACOs are substantially clinically or
financially integrated.
8
The Policy Statement provides guidance to assist ACOs in determining whether they are likely to present
competitive concerns. It does not reflect the full analysis that the Agencies may use in evaluating ACOs or
any other transaction or course of conduct. “Newly formed ACOs” are defined infra at note 23.
9
A “collaboration” comprises an agreement or set of agreements, other than merger agreements, among
otherwise independent entities jointly to engage in economic activity, and the resulting economic activity.
U.S. DEP’T OF JUSTICE & FED. TRADE COMM’N, ANTITRUST GUIDELINES FOR COLLABORATIONS AMONG
COMPETITORS § 1.1 (2000) [hereinafter COLLABORATION GUIDELINES], available at
http://www.ftc.gov/os/2000/04/ftcdojguidelines.pdf.
10
An ACO participant can be an independent physician solo practice, a fully integrated physician group
practice, an inpatient facility, or an outpatient facility. The Policy Statement’s definition of ACO
participant may differ from CMS’s use of the term.
11
COLLABORATION GUIDELINES, supra note 9, § 1.3.
12
U.S. DEP’T OF JUSTICE & FED. TRADE COMM’N, HORIZONTAL MERGER GUIDELINES (rev. ed. 2010),
available at http://www.justice.gov/atr/public/guidelines/hmg-2010.pdf.

3

III.

The Agencies Will Apply Rule of Reason Analysis to ACOs That Meet
Certain Conditions

The antitrust laws treat naked price-fixing and market-allocation agreements
among competitors as per se illegal. Joint price agreements among competing health care
providers are evaluated under the rule of reason, however, if the providers are financially
or clinically integrated and the agreement is reasonably necessary to accomplish the
procompetitive benefits of the integration.
A rule of reason analysis evaluates whether the collaboration is likely to have
anticompetitive effects and, if so, whether the collaboration’s potential procompetitive
efficiencies are likely to outweigh those effects. The greater the likely anticompetitive
effects, the greater the likely efficiencies must be for the collaboration to pass muster
under the antitrust laws. The Agencies have articulated the standards for both financial
and clinical integration in various policy statements, speeches, business reviews, and
advisory opinions. For example, the Agencies’ Statements of Antitrust Enforcement
Policy in Health Care (the “Health Care Statements”) explain that where participants in
physician or multiprovider joint ventures have agreed to share substantial financial risk as
defined in the Health Care Statements, their risk-sharing arrangement generally
establishes both an overall efficiency goal for the venture and the incentives for the
participants to meet that goal.13 Accordingly, the setting of price is integral to the
venture’s use of such an arrangement and therefore warrants evaluation under the rule of
reason.14 The Health Care Statements provide examples of financial risk-sharing
arrangements that can satisfy this standard, but also recognize that other acceptable
financial risk-sharing arrangements might develop.15
The Health Care Statements further explain that provider joint ventures also may
involve clinical integration sufficient to ensure that the venture is likely to produce
significant efficiencies.16 Clinical integration can be evidenced by the joint venture
implementing an active and ongoing program to evaluate and modify practice patterns by
the venture’s providers and to create a high degree of interdependence and cooperation
among the providers to control costs and ensure quality.17 Federal Trade Commission
staff advisory opinions discuss evidence that appears sufficient to demonstrate clinical
integration in specific factual circumstances.18
The Affordable Care Act provides that CMS may approve ACOs that meet certain
eligibility criteria, including (1) a formal legal structure that allows the ACO to receive
13

U.S. DEP’T OF JUSTICE & FED. TRADE COMM’N, STATEMENTS OF ANTITRUST ENFORCEMENT POLICY IN
HEALTH CARE, Statements 8 and 9 (1996) [hereinafter HEALTH CARE STATEMENTS], available at
http://www.ftc.gov/reports/hlth3s.pdf.
14
Id.
15
Id.
16
Id.
17
See, e.g., Christine A. Varney, Assistant Attorney Gen., Antitrust Div., U.S. Dep’t of Justice, Antitrust
and Healthcare at 12 (May 24, 2010), available at http://www.justice.gov/atr/public/speeches/258898.pdf.
18
See FED. TRADE COMM’N, ADVISORY OPINIONS (1982-2010), available at
http://www.ftc.gov/bc/healthcare/industryguide/advisory.htm#2010.

4

and distribute payments for shared savings; (2) a leadership and management structure
that includes clinical and administrative processes; (3) processes to promote evidencebased medicine and patient engagement; (4) reporting on quality and cost measures; and
(5) coordinated care for beneficiaries.19 CMS has further defined these eligibility criteria
through regulations.20
By contrast, the Agencies have not previously listed specific criteria required to
establish clinical integration, but instead have responded to detailed proposals from
health care providers who have decided on specific ways to integrate their health care
delivery systems to improve quality and lower costs.21 The Agencies have chosen to
avoid prescribing how clinical integration should take place. Nonetheless, the Agencies
recognize that health care providers seeking to create ACOs in the context of the Shared
Savings Program could benefit from additional antitrust guidance in evaluating whether
an ACO that satisfies the CMS eligibility criteria could be subject to an antitrust
investigation and potential challenge as engaging in per se illegal conduct.
The Agencies have determined that CMS’s eligibility criteria are broadly
consistent with the indicia of clinical integration that the Agencies previously set forth in
the Health Care Statements and identified in the context of specific proposals for clinical
integration from health care providers.22 The Agencies also have determined that
organizations meeting the eligibility requirements for the Shared Savings Program are
reasonably likely to be bona fide arrangements intended to improve the quality, and
reduce the costs, of providing medical and other health care services through their
participants’ joint efforts.
To assess whether an ACO has improved quality and reduced costs to Medicare,
CMS will collect and evaluate cost, utilization, and quality metrics relating to each
ACO’s performance in the Shared Savings Program. The results of this monitoring will
help the Agencies determine whether the CMS eligibility criteria have required a
sufficient level of clinical integration to produce cost savings and quality improvements,
and may help inform the Agencies’ future analysis of ACOs and other provider
organizations.
In light of CMS’s eligibility criteria, and its monitoring of each ACO’s results, the
Agencies will treat joint negotiations with private payers as reasonably necessary to an
ACO’s primary purpose of improving health care delivery, and will afford rule of reason
19

Patient Protection and Affordable Care Act, Pub. L. No. 111-48, § 3022, 124 Stat. 119, 395-99 (2010).
Medicare Program; Medicare Shared Savings Program: Accountable Care Organizations, 42 C.F.R. pt.
425 (2011) [hereinafter CMS ACO Rule].
21
See generally FTC Staff Advisory Opinions (2002-Present), available at
www.ftc.gov/bc/healthcare/industryguide/opinionguidance.htm; see also U.S. DEP’T OF JUSTICE & FED.
TRADE COMM’N, IMPROVING HEALTH CARE: ANOTHER DOSE OF COMPETITION ch. 2 at 34-41 (July 2004),
available at http://www.ftc.gov/reports/healthcare/040723healthcarerpt.pdf.
22
Id. See also, e.g., TriState Health Partners, Inc. Advisory Opinion from FTC Staff (Apr. 13, 2009)
(evaluating TriState Health Partners’ proposal and stating that, if implemented as proposed, FTC staff
would not recommend that the Commission challenge the proposed program), available at
www.ftc.gov/os/closings/staff/090413tristateaoletter.pdf.
20

5

treatment to an ACO that meets CMS’s eligibility requirements for, and participates in,
the Shared Savings Program and uses the same governance and leadership structures and
clinical and administrative processes it uses in the Shared Savings Program to serve
patients in commercial markets. The Agencies further note that CMS’s regulations allow
an ACO to propose alternative ways to establish clinical management and oversight of
the ACO, and the Agencies are willing to consider other proposals for clinical integration
as well.
IV.

The Agencies’ Antitrust Analysis of ACOs That Meet CMS Eligibility
Criteria

The following Sections provide additional antitrust guidance for ACOs that are
eligible and intend, or have been approved, to participate in the Shared Savings Program,
including those ACOs that also plan to operate in the commercial market. Section A sets
forth a safety zone for certain ACOs that are highly unlikely to raise significant
competitive concerns and, therefore, will not be challenged by the Agencies under the
antitrust laws, absent extraordinary circumstances.
The Agencies emphasize that ACOs outside the safety zone may be
procompetitive and legal. An ACO that does not impede the functioning of a competitive
market will not raise competitive concerns. The creation of a safety zone reflects the
view that ACOs that fall within the safety zone are highly unlikely to raise significant
competitive concerns; it does not imply that ACOs outside the safety zone necessarily
present competitive concerns.
Section B offers options for ACOs that seek additional antitrust guidance. It
describes certain conduct all ACOs generally should avoid, other conduct that ACOs with
high Primary Service Area (“PSA”) shares or other possible indicia of market power may
wish to avoid, and the process by which a newly formed ACO23 may obtain a voluntary
expedited antitrust review.
A.

The Antitrust Safety Zone for ACOs in the Shared Savings Program

This Section sets forth an antitrust safety zone for ACOs that meet the CMS
eligibility criteria for and intend, or have been approved, to participate in the Shared
Savings Program and are highly unlikely to raise significant competitive concerns. The
Agencies will not challenge ACOs that fall within the safety zone, absent extraordinary
circumstances.24
23

“Newly formed ACOs” are those ACOs that, as of March 23, 2010, the date on which the Patient
Protection and Affordable Care Act was enacted, had not yet signed or jointly negotiated any contracts with
private payers, and have not yet participated in the Shared Savings Program. Patient Protection and
Affordable Care Act, Pub. L. No. 111-48, 124 Stat. 119 (2010). An ACO is not newly formed if it
comprises only the same, or a subset of the same, providers that signed or jointly negotiated contracts with
private payers on or before March 23, 2010.
24
Extraordinary circumstances could include, for example, ACO participants engaging in collusion or
improper exchanges of price information or other competitively sensitive information with respect to their
sale of competing services outside the ACO. See infra IV(B)(1)(a).

6

To determine whether it falls within the safety zone, an ACO should evaluate the
ACO’s share of services in each ACO participant’s PSA. Although a PSA does not
necessarily constitute a relevant antitrust geographic market, it nonetheless serves as a
useful screen for evaluating potential competitive effects.
The Policy Statement focuses on PSA shares for three major categories of
services: physician specialties, major diagnostic categories (“MDCs”) for inpatient
facilities, and outpatient categories, as defined by CMS, for outpatient facilities.25
Although these services are useful in evaluating potential anticompetitive effects, they do
not necessarily constitute relevant antitrust product markets. The Appendix to the Policy
Statement describes how to calculate an ACO’s shares of these services in the relevant
PSAs, identifies data sources available for these calculations, and provides illustrative
examples.26
For an ACO to fall within the safety zone, independent ACO participants that
provide the same service (a “common service”) must have a combined share of 30
percent or less of each common service in each participant’s PSA, wherever two or more
ACO participants provide that service to patients from that PSA.27 As noted above, a
service is defined as a primary specialty for physicians, an MDC for inpatient facilities,
or an outpatient category for outpatient facilities. The PSA for each participant is defined
as “the lowest number of postal zip codes from which the [ACO participant] draws at
least 75 percent of its [patients],”28 separately for all physician, inpatient, or outpatient
services. Thus, for purposes of determining whether the ACO is eligible for the safety
zone, each independent physician solo practice, each fully integrated physician group
practice, each inpatient facility (even if part of a hospital system), and each outpatient
facility will have its own PSA. In addition, each inpatient facility hospital will have
separate PSAs for its (1) inpatient services, (2) outpatient services, and (3) physician
services provided by its physician employees, if any.29
As described below, the availability of the PSA safety zone differs in some cases
depending on whether an ACO participant is exclusive or non-exclusive to the ACO. To
participate in an ACO on a non-exclusive basis, a participant must be allowed to contract
with private payers through entities other than the ACO, including contracting
individually or through other ACOs or analogous collaborations. The ACO must be nonexclusive in fact and not just in name. Exclusivity may be present explicitly or
25

The Policy Statement does not apply to other types of providers (e.g., clinical laboratories or nursing
homes). Nonetheless, the Agencies recognize that those providers may participate in ACOs.
26
The ACO may send questions regarding PSA share calculations to aco_psa_questions@ftc.gov.
27
Thus, if two otherwise independent physician group practices form an ACO and each includes
cardiologists and oncologists, each physician group practice would be an independent participant in the
ACO, and cardiology and oncology would be common services. If, on the other hand, one physician group
practice consists only of cardiologists and the other only of oncologists, then there would be no common
services and the ACO would fall within the safety zone regardless of its share, subject to the dominant
participant limitation described below.
28
Medicare Program: Physicians’ Referrals to Health Care Entities With Which They Have Financial
Relationships (Phase II), 69 Fed. Reg. 16,094 (Mar. 26, 2004).
29
See Appendix to the Policy Statement.

7

implicitly, formally or informally, through a written or de facto agreement as shown by
conduct.30
Hospitals and Ambulatory Surgical Centers. Any hospital or ambulatory surgery
center (“ASC”) participating in an ACO must be non-exclusive to the ACO to fall within
the safety zone, regardless of its PSA share.
Physicians. The safety zone for physicians (regardless of whether the physicians
are hospital employees) does not differ based on whether the physicians are exclusive or
non-exclusive to the ACO, unless they fall within the rural exception or dominant
participant limitation described below.
1.

Rural Exception

An ACO that exceeds the 30 percent PSA share may still fall within the safety
zone if it qualifies for this rural exception. The rural exception allows such an ACO to
include one physician or physician group practice31 per specialty from each rural area32
on a non-exclusive basis and still fall within the safety zone, provided the physician’s or
physician group practice’s primary office is in a zip code that is classified as “isolated
rural” or “other small rural.”33 Thus, an ACO may qualify for the safety zone as long as
it includes only one physician or physician group practice per specialty for each county
that contains at least one “isolated rural” or “other small rural” zip code, even if the
inclusion of these physicians causes the ACO’s share of any common service to exceed
30 percent in any ACO participant’s PSA.

30

The Health Care Statements further explain the indicia of non-exclusivity that the Agencies consider
relevant to this evaluation. HEALTH CARE STATEMENTS, supra note 13, at 66-67.
31
To qualify for the rural exception, the physician group practice must be treating patients as a fully
integrated practice group as of the date of the Policy Statement. The practice group can add or eliminate
physicians and still remain in the safety zone, as long as the number of full-time equivalent physicians in
the practice group does not increase during the ACO’s Shared Savings Program agreement period. For the
purposes of the Policy Statement, Federally Qualified Health Centers and Rural Health Clinics, as defined
by the Social Security Act, are considered physician group practices. 42 U.S.C. § 1396d (2006); 42 U.S.C.
§ 1395x(aa) (2006). A physician or physician group practice that qualifies for the rural exception may
obtain “call coverage” from other physicians in the same rural area without losing its safety zone status as
long as those physicians do not participate in the ACO.
32
For the purposes of the Policy Statement, a “rural area” means any county containing at least one zip
code that has been classified as “isolated rural,” or “other small rural,” according to the WWAMI Rural
Health Research Center of the University of Washington’s seven category classification.
http://depts.washington.edu/uwruca/ruca-maps.php. These are zip codes that have a Rural Urban
Commuting Area (“RUCA”) code of 10.0, 10.2-10.6, 8.0, 8.2-8.4, or 9.0-9.2 as developed by the WWAMI
Rural Health Research Center of the University of Washington and the U.S. Department of Agriculture’s
Economic Research Service. http://www.ers.usda.gov/briefing/Rurality/RuralUrbanCommutingAreas/.
The RUCA code for any particular zip code can be found at http://depts.washington.edu/uwruca/rucadownload.php.
33
A physician’s or physician group practice’s primary office is the office in which the majority of the
physician’s or physician group practice’s patient visits take place. If no office serves a majority of a
physician’s patients, the majority of patient visits must take place in offices located in “isolated rural” or
“other small rural” zip codes to qualify for the rural exception.

8

Likewise, an ACO may include Rural Hospitals34 on a non-exclusive basis and
qualify for the safety zone, even if the inclusion of a Rural Hospital causes the ACO’s
share of any common service to exceed 30 percent in any ACO participant’s PSA.
2. Dominant Participant Limitation
The dominant participant limitation applies to any ACO that includes a participant
with a greater than 50 percent share in its PSA of any service that no other ACO
participant provides to patients in that PSA. Under these conditions, the ACO participant
must be non-exclusive to the ACO for the ACO to fall within the safety zone.35 In
addition, to fall within the safety zone, an ACO with a dominant participant cannot
require a private payer to contract exclusively with the ACO or otherwise restrict a
private payer’s ability to contract or deal with other ACOs or provider networks.
* * *
The safety zone will remain in effect for the duration of an ACO’s agreement with
CMS, provided the ACO continues to meet the safety zone’s requirements. An ACO will
not lose its safety zone status solely because it attracts more patients.
B.

ACOs Outside the Safety Zone

ACOs that fall outside the safety zone may be procompetitive and lawful. An
ACO that does not impede the functioning of a competitive market will not raise
competitive concerns.36
Nonetheless, there may be circumstances in which an ACO would raise
competitive concerns. This section describes some types of conduct by an ACO that,

34

For the purposes of the Policy Statement, a Rural Hospital is defined as a Sole Community Hospital, a
Critical Access Hospital, or any other acute care hospital located in a rural area that has no more than 50
acute care inpatient beds and is located at least 35 miles from any other inpatient acute care hospital. A
Sole Community Hospital is a hospital that is paid under the Medicare hospital inpatient prospective
payment system and meets the criteria for Sole Community Hospital status as specified at 42 C.F.R. §
412.92. See also DEP’T OF HEALTH AND HUMAN SERVS., CTRS. FOR MEDICARE & MEDICAID SERVS., SOLE
COMMUNITY HOSPITAL, RURAL HEALTH FACT SHEET SERIES (Oct. 2010), available at
https://www.cms.gov/MLNProducts/downloads/SoleCommHospfctsht508-09.pdf; Social Security Act, 42
U.S.C. § 1395ww(d)(5)(D)(iii) (2006). A Critical Access Hospital is a hospital that has been certified as a
Medicare Critical Access Hospital, as described in 42 C.F.R. § 485 Subpart F. See also 42 U.S.C. § 1395i4(c)(2).
35
For example, a physician group participating in the ACO may comprise a specialty not found in any
other ACO participant. In this case, the ACO may be eligible for the safety zone even if the physician
group’s share exceeds 50 percent, but only if the physician group participates in the ACO on a nonexclusive basis and the ACO does not restrict a private payer’s ability to contract or deal with other ACOs
or provider groups.
36
The Agencies emphasize that PSA shares are useful as a screening device and that alternative data and
information also may be useful in evaluating the likely competitive significance of a particular ACO. The
Agencies recognize that an ACO may have reliable evidence other than PSA shares from which the ACO
may reasonably conclude that the ACO is unlikely to raise competitive concerns.

9

under certain circumstances, may raise competitive concerns and outlines how an ACO
may obtain further antitrust guidance from the Agencies.
1. Conduct to Avoid
a.

Improper Sharing of Competitively Sensitive Information

Regardless of an ACO’s PSA shares or other indicia of market power, significant
competitive concerns can arise when an ACO’s operations lead to price-fixing or other
collusion among ACO participants in their sale of competing services outside the ACO.
For example, improper exchanges of prices or other competitively sensitive information
among competing participants could facilitate collusion and reduce competition in the
provision of services outside the ACO, leading to increased prices or reduced quality or
availability of health care services.37 ACOs should refrain from, and implement
appropriate firewalls or other safeguards against, conduct that may facilitate collusion
among ACO participants in the sale of competing services outside the ACO.38
b. Conduct by ACOs with High PSA Shares or Other Possible
Indicia of Market Power That May Raise Competitive Concerns
For ACOs with high PSA shares or other possible indicia of market power, the
Agencies identify four types of conduct that may raise competitive concerns.39 The
Agencies recognize that some of the conduct described in (1) through (4) below may be
competitively neutral or even procompetitive, depending on the circumstances, including
whether the ACO has market power. For example, an ACO that requires its participants
to contract exclusively through the ACO to increase the ACO’s efficiency is generally
less likely to raise competitive concerns the greater the number of competing ACOs or
independent providers available to contract with private payers or to participate in
competing ACOs or other analogous collaborations.
An ACO with high PSA shares or other possible indicia of market power may
wish to avoid the conduct set forth in (1) through (4) below. Depending on the
circumstances, the conduct identified below may prevent private payers from obtaining
lower prices and better quality service for their enrollees:
1. Preventing or discouraging private payers from directing or incentivizing patients
to choose certain providers, including providers that do not participate in the

37

Health Care Statements 4, 5, and 6 relate to the sharing of data and information among competing
providers. The Health Care Statements set forth safety zones for providers’ collective provision of fee- and
non-fee-related information to health care purchasers and participation in exchanges of price and cost
information. The Health Care Statements also provide further guidance on the distinctions between
legitimate information sharing and information sharing that may facilitate collusion or otherwise raise
competitive concerns. HEALTH CARE STATEMENTS, supra note 13, at 40-52.
38
ACOs within the safety zone should also refrain from this conduct. See supra note 24.
39
ACOs with high PSA shares or other possible indicia of market power also should consider the likely
competitive effects of other types of conduct in which they engage.

10

ACO, through “anti-steering,” “anti-tiering,” “guaranteed inclusion,” “mostfavored-nation,” or similar contractual clauses or provisions
2. Tying sales (either explicitly or implicitly through pricing policies) of the ACO’s
services to the private payer’s purchase of other services from providers outside
the ACO (and vice versa), including providers affiliated with an ACO participant
(e.g., an ACO should not require a purchaser to contract with all of the hospitals
under common ownership with a hospital that participates in the ACO)
3. Contracting on an exclusive basis with ACO physicians, hospitals, ASCs, or other
providers, thereby preventing or discouraging those providers from contracting
with private payers outside the ACO, either individually or through other ACOs
or analogous collaborations40
4. Restricting a private payer’s ability to make available to its health plan enrollees
cost, quality, efficiency, and performance information to aid enrollees in
evaluating and selecting providers in the health plan, if that information is similar
to the cost, quality, efficiency, and performance measures used in the Shared
Savings Program
2. Availability of Expedited Voluntary Antitrust Review
Any newly formed ACO41 that desires further antitrust guidance regarding its
formation and planned operation can seek expedited 90 day review from the Agencies.42
During expedited review, the reviewing Agency will examine whether the ACO will
likely harm competition by increasing the ACO’s ability or incentive profitably to raise
prices above competitive levels or reduce output, quality, service, or innovation below
what likely would prevail in the absence of the ACO.43 To the extent possible in the 90
day review period, the Agency will consider factors in the rule of reason analysis as
explained in the Antitrust Guidelines for Collaborations Among Competitors and the
Health Care Statements.44
The ACO should submit its request for expedited review, along with a completed
cover sheet (available on the Agencies’ websites), to both Agencies before its entrance
into the Shared Savings Program, and the Agencies will then promptly determine, and
40

Note that, although CMS requires the physician practice through which physicians bill for primary care
services and to which Medicare beneficiaries are assigned to contract exclusively with one ACO for the
purposes of beneficiary assignment, CMS does not require either those individual physicians or physician
practices to contract exclusively through the same ACO for the purposes of providing services to private
health plans’ enrollees. CMS ACO Rule, supra note 20.
41
See supra note 23.
42
When the Federal Trade Commission is the reviewing Agency, Commission staff will perform the ACO
review pursuant to the Commission’s authorization of its staff in 16 C.F.R. § 1.1(b). When the Antitrust
Division is the reviewing Agency, the Assistant Attorney General in charge of the Antitrust Division or the
Assistant Attorney General’s delegate will sign the review letter. 28 C.F.R § 50.6.
43
See COLLABORATION GUIDELINES, supra note 9, § 1.2.
44
See id. § 3.3; HEALTH CARE STATEMENTS, supra note 13, Statements 8 and 9.

11

notify the applicant, which Agency will be the reviewing Agency.45 As soon as the
Agencies notify the applicant which Agency will be the reviewing Agency, the applicant
should provide all of the documents and information listed below to the reviewing
Agency. The Agencies shall establish a Federal Trade Commission/Department of
Justice ACO Working Group to collaborate and discuss issues arising out of the ACO
reviews. This process will allow ACOs to rely on the expertise of both Agencies and
ensure efficient, cooperative, and expeditious reviews.46
To start the 90 day review, the reviewing Agency must receive all of the
following documents and information:47
1. The application and all supporting documents that the ACO plans to submit, or
has submitted, to CMS, including a sample of each type of participation
agreement and each type of document that reflects a financial arrangement
between or among the ACO and its participants, as well as the ACO’s bylaws and
operating policies
2. Documents discussing
a. the ACO’s business strategies or plans to compete in the Medicare and
commercial markets, including those relating to the ACO’s likely impact
on the prices, cost, or quality of any service provided by the ACO to
Medicare beneficiaries, commercial health plans, or other payers; and
b. the level and nature of competition among participants in the ACO, and
the competitive significance of the ACO and ACO participants in the
markets in which they provide services
3. Information sufficient to show the following:
a. The common services that two or more ACO participants provide to
patients from the same PSA, as described in the Appendix, and the identity
of the ACO participants or providers providing those services

45

A request for an expedited review must be submitted in writing to either (1) the Office of the Assistant
Attorney General, Antitrust Division, Department of Justice, Main Justice Building, Room 3109, 950
Pennsylvania Avenue, NW, Washington, DC 20530 (for non-U.S. Postal Service deliveries, use ZIP code
20004), and to the Federal Trade Commission, Bureau of Competition, Premerger Notification Office,
Room 303, 600 Pennsylvania Avenue, NW, Washington, DC 20580 or (2) acorequest@usdoj.gov and
acorequest@ftc.gov.
46
For example, it has been standard practice for the Agencies to share with each other their proposed health
care business review and staff advisory opinion letters before issuing them in final form to ensure
application of consistent standards of antitrust review.
47
The ACO must represent in writing that it has undertaken a good-faith search for the documents and
information specified in the Policy Statement and, where applicable, provided all responsive material.
Moreover, the Agencies may request additional documents and information where necessary to evaluate the
ACO. A request for additional documents and information, however, will not extend the 90 day review
period.

12

b. The PSA of each ACO participant, and either PSA share calculations the
ACO may have performed or other data that show the current competitive
significance of the ACO or ACO participants, including any data that
describe the geographic service area of each participant and the size of
each participant relative to other providers serving patients from that area
c. Restrictions that prevent ACO participants from obtaining information
regarding prices that other ACO participants charge private payers that do
not contract through the ACO
d. The identity, including points of contact, of the five largest commercial
health plans or other private payers, actual or projected, for the ACO’s
services
e. The identity of any other existing or proposed ACO known to operate, or
known to plan to operate, in any market in which the ACO will provide
services
Moreover, the ACO may submit any other documents and information that it
believes may be helpful to the Agency in assessing the ACO’s likely impact on
competition. The documents and information may include anything that may establish a
clearer picture of competitive realities in the market, including
1. evidence that the ACO is not likely to have market power in the relevant market;
2. any substantial procompetitive justification for why the ACO needs its proposed
composition to provide high-quality, cost-effective care to Medicare beneficiaries
and patients in the commercial market; and
3. if relevant, an explanation as to why the ACO engaging in any of the four types of
conduct listed in Section IV.B of the Policy Statement would not be
anticompetitive or might even be procompetitive.
Within 90 days of receiving all of the above documents and information,48 the
reviewing Agency will advise the ACO that the ACO’s formation and operation, as
described in the documents and information provided to the Agency,
1. does not likely raise competitive concerns or, if appropriate, does not likely raise
competitive concerns conditioned on the ACO’s written agreement to take
specific steps to remedy concerns raised by the Agency;
2. potentially raises competitive concerns; or
3. likely raises competitive concerns.
48

Upon the applicant’s request, the reviewing Agency may extend the review beyond 90 days, subject to
the availability of resources or other discretionary considerations.

13

As is current practice, both the request letter and the reviewing Agency’s response
will be made public consistent with applicable confidentiality provisions.49 Also,
consistent with current practice, if it appears that an ACO’s formation or conduct may be
anticompetitive, the Agency may investigate the ACO and, if appropriate, take
enforcement action at any time before or during the ACO’s participation in the Shared
Savings Program.

49

The provisions regarding public access to review information, non-disclosure of competitively sensitive
or business confidential information, and retention of review information set forth in 28 C.F.R. § 50.6
(2010) (U.S. Department of Justice business review letters) and 16 C.F.R. §§ 1.1-1.4 (2010) (FTC advisory
opinions) will generally apply to the expedited review process. Requesters should follow applicable
Agency procedures governing the designation of competitively sensitive business information and other
information the requesters wish not to be made public in connection with a review request. See 28 C.F.R. §
50.56 (U.S. Department of Justice procedures); 16 C.F.R. §§ 4.2, 4.9, and 4.10 (FTC procedures).

14

Appendix
This Appendix explains how to calculate the PSA shares of common services
discussed in the Policy Statement.50 There are three steps:
1. Identify each service provided by at least two independent ACO participants (i.e.,
each common service). A service is defined as follows:
a. For physicians, a service is the physician’s primary specialty, as
designated on the physician’s Medicare Enrollment Application. Each
specialty is identified by its Medicare Specialty Code (“MSC”), as defined
by CMS.51
b. For inpatient facilities (e.g., hospitals), a service is an MDC.52
c. For outpatient facilities (e.g., ASCs or hospitals), a service is an outpatient
category, as defined by CMS.53
2. Identify the PSA(s) for each participant (e.g., physician group, inpatient facility,
or outpatient facility) in the ACO that provides any common service. For each
participant, the PSA is defined as the lowest number of postal zip codes from
which the participant draws at least 75 percent of its patients.54 Each independent
physician solo practice, each fully integrated physician group practice,
each inpatient facility (even if part of a hospital system), and each outpatient
facility will have its own PSA. In addition, each inpatient facility will have a
separate PSA for inpatient services, outpatient services, and physician services
provided by its physician employees.
3. Separately for each common service, calculate the ACO’s PSA share in the PSA
of each participant that provides that service if at least two participants provide
that service to patients from that PSA. If an entity owned by an ACO participant
provides services in a PSA, those services should be included in the share
calculation regardless of whether the affiliated organization participates in the
ACO.

50

Any ACO participant that wants to determine whether it meets the dominant participant limitation of the
safety zone should calculate its PSA share in a similar manner.
51
CMS will make publicly available the most current list of applicable specialties. Specialty Codes 01
(general practice), 08 (family practice), 11 (internal medicine), and 38 (geriatric medicine) are considered
“Primary Care” specialties, and are treated as a single service for the purposes of the Policy Statement.
52
CMS will make publicly available the most current list of MDCs.
53
CMS will make publicly available a list of applicable outpatient categories as well as data necessary to
assign procedure codes to the appropriate category.
54
This PSA calculation is based on the Stark II regulations. Medicare Program: Physicians’ Referrals to
Health Care Entities With Which They Have Financial Relationships (Phase II), 69 Fed. Reg. 16,094 (Mar.
26, 2004).

15

a. For physician services, the ACO should calculate its shares of Medicare
fee-for-service allowed charges (i.e., the amount that a provider is entitled
to receive for the service provided) during the most recent calendar year
for which data are available. CMS will make public the data necessary to
identify the full range of services and the aggregate fee-for-service
allowed charges for each service, by zip code.
b. For inpatient services, the ACO should calculate its shares of inpatient
discharges, using state-level all-payer hospital discharge data where
available, for the most recent calendar year for which data are available.
For ACOs located in a state where all-payer hospital discharge data are not
available, the ACO should calculate its shares of Medicare fee-for-service
payments during the most recent federal fiscal year for which data are
available. CMS will make public the data necessary to identify the full
range of services and the aggregate fee-for-service payments for each
service, by zip code.
c. For outpatient services, the ACO should calculate its shares of Medicare
fee-for-service payments for hospitals and fee-for-services allowed
charges for ASCs during the most recent calendar year for which data are
available, or the ACO can use state-level all-payer claims data, if
available. CMS will make public the data necessary to identify the full
range of services and the aggregate fee-for-service payments and allowed
charges for each service, by zip code.
For those services that are rarely used by Medicare beneficiaries (e.g., pediatrics,
obstetrics, gynecology, and neonatal care) and for which all-payer data are not
available, the ACO may use other available data to determine the relevant shares.
For example, for those services, data on the number of active physicians within
the specialty and located within the PSA may be a reasonable alternative for the
purposes of calculating shares of physician services.
Example of How to Calculate an ACO’s PSA Shares
The following example illustrates how to calculate the ACO’s relevant PSA
shares. Assume that two independent physician practices, two independent hospitals, and
an ASC propose to form an ACO. For purposes of this example, further assume that the
hospitals do not directly employ physicians. If they do, then services provided by the
hospitals’ employed physicians would need to be taken into account in determining the
PSA and calculating the ACO’s shares for each common physician service where at least
two participants provide that service to patients from the same PSA.
For the physician groups:
1. Identify the physician groups’ common MSCs. In this example, Physician Group
A (“PG A”) has physicians with general surgery (MSC 02) and orthopedic
16

surgery specialties (MSC 20). Physician Group B (“PG B”) has physicians with
orthopedic surgery (MSC 20) and cardiology (MSC 06) specialties. The only
common service is orthopedic surgery, not general surgery or cardiology, because
PG A does not have cardiologists and PG B does not have general surgeons.
2. Identify the zip codes that make up the PSA for each physician group. In this
example, there will be two PSAs: one for PG A (“PSA A”) and one for PG B
(“PSA B”).
3. Determine the ACO’s share in each of the PSAs. In this example, both PG A’s
and PG B’s orthopedic surgeons serve patients located in both PSAs. Thus,
shares need to be calculated in PSA A and PSA B. The ACO’s share of
orthopedic surgery in PSA A would be the total Medicare allowed charges for
claims billed by the ACO’s orthopedic surgeons (which are PG A’s and PG B’s
total allowed charges for claims billed by orthopedic surgeons for Medicare
beneficiaries in PSA A’s zip codes) divided by the total allowed charges for
orthopedic surgery for all Medicare beneficiaries in PSA A. Likewise, the ACO’s
share of orthopedic surgery services in PSA B would be the total Medicare
allowed charges for claims billed by the ACO’s orthopedic surgeons (which are
PG A’s and PG B’s total allowed charges for claims billed by orthopedic surgeons
for Medicare beneficiaries in PSA B’s zip codes) divided by the total allowed
charges for orthopedic surgery for all Medicare beneficiaries in PSA B.
For the inpatient services:
1. Identify the hospitals’ common MDCs. In this example, Hospital 1 and Hospital
2 each provide services in 10 MDCs, but only two are common services: cardiac
care (i.e., services related to diseases and disorders of the circulatory system—
MDC 05) and orthopedic care (i.e., services related to diseases and disorders of
the musculoskeletal system and connective tissue—MDC 08).
2. Identify the zip codes that make up the PSA for inpatient services for each
hospital. In this example, there will be two PSAs: Hospital 1’s PSA and Hospital
2’s PSA.
3. Determine the ACO’s share in each of the PSAs. In this example, Hospital l and
Hospital 2 both serve cardiac patients located in each hospital’s PSA and both
serve orthopedic patients in each hospital’s PSA. Thus, shares need to be
calculated in both PSAs, resulting in four shares. This hypothetical ACO is
located in a state for which all-payer hospital discharge data are available, so the
ACO’s share of cardiac care in Hospital 1’s PSA would be the ACO’s total
number of inpatient discharges for MDC 05 (which are Hospital 1’s and Hospital
2’s total inpatient discharges for cardiac care in Hospital l’s PSA) divided by the
total number of inpatient discharges for MDC 05 for all residents of this PSA.
Use the analogous process to calculate the ACO’s share of cardiac care in

17

Hospital 2’s PSA, the ACO’s share of orthopedic care in Hospital 1’s PSA, and
the ACO’s share of orthopedic care in Hospital 2’s PSA.
For the outpatient services:
1. Identify the hospitals’ and ASC’s common outpatient categories. In this example,
Hospital 1 does not provide outpatient services, while Hospital 2 and the ASC
each provide services in 10 outpatient categories, but only two are common
services: cardiovascular tests/procedures (outpatient category 2) and
musculoskeletal procedures (outpatient category 5).
2. Identify the zip codes that make up the PSA for outpatient services for Hospital 2
and the ASC. In this example, there will be two PSAs: Hospital 2’s PSA for
outpatient services and the ASC’s PSA.
3. Determine the ACO’s share in each of the PSAs. In this example, Hospital 2 and
the ASC both provide cardiovascular tests/procedures to patients located in each
facility’s PSA, and both provide musculoskeletal procedures to patients located in
each facility’s PSA. Thus, shares need to be calculated in both PSAs, resulting in
four shares. The ACO’s share of cardiovascular tests/procedures in Hospital 2’s
PSA would be the ACO’s total Medicare fee-for-service payments/charges for
outpatient category 2 (which are Hospital 2’s total payments and the ASC’s total
allowed charges for outpatient cardiovascular tests/procedures for Medicare
beneficiaries in Hospital 2’s PSA) divided by the total payments/charges for
outpatient category 2 for all Medicare beneficiaries in this PSA. Use the
analogous process to calculate the ACO’s share of cardiovascular tests/procedures
in the ASC’s PSA, the ACO’s share of musculoskeletal procedures in Hospital 2’s
PSA, and the ACO’s share of musculoskeletal procedures in the ASC’s PSA.
Application to the Safety Zone: In this example, the ACO would calculate ten
PSA shares. If all of the shares are 30 percent or below, and the hospitals and the ASC
are non-exclusive to the ACO, then the ACO would fall within the safety zone. In other
words, the 30 percent threshold must be met in each relevant PSA for each common
service. If that condition is not met, then the ACO does not fall within the safety zone,
unless it qualifies for the rural exception.

For the Antitrust Division of the Department of Justice.
Sharis A. Pozen
Acting Assistant Attorney General
For the Federal Trade Commission.
Donald S. Clark
Secretary
18


U.S. Department of Justice
Federal Bureau of Prisons

PROGRAM STATEMENT
OPI:
CPD/CPB
NUMBER: 5215.06
DATE:
October 11, 2011

District of Columbia Youth Rehabilitation Act
(DCYRA) Offenders
/s/
Approved: Thomas R. Kane
Acting Director, Federal Bureau of Prisons

1. PURPOSE AND SCOPE
This Program Statement (PS) provides policy and procedure for administering the provisions of
the District of Columbia Youth Rehabilitation Act (D.C. Code
24-902, et seq. (2001)). It
applies only to persons serving D.C. Code terms of incarceration imposed under this statute.
The Federal Bureau of Prisons is authorized to provide for the custody, care, subsistence,
education, treatment, and training of youth offenders convicted of felony offenses and sentenced
to commitment.
a. Overview. Before repeal of the Federal Youth Corrections Act (YCA) (18 U.S.C.
5010
- 5016 (repealed)), the District of Columbia used YCA provisions for D.C. Code youth offenders.
After repeal, the District enacted its own youth offender provisions the District of Columbia
Youth Rehabilitation Act (DCYRA). The original DCYRA was nearly identical to the repealed
YCA and remained substantially unchanged until the D.C. Sentencing Reform Amendment Act
(SRAA) of 2000.
DCYRA sentences imposed after enactment of the SRAA are calculated the same way as U.S.
Code offenses imposed under the Prisoner Litigation Reform Act (non-parolable sentences that
earn 54 days of good conduct time per year served, which vests at the end of the sentence). The
DCYRA was modified in 2001 to incorporate the Bureau s role as the administrator of sentences
for DCYRA felony offenders (D.C. offenders serving sentences only for misdemeanors continue
to be administered by the D.C. Department of Corrections).

In this Program Statement, DCYRA sentences are referred to as “pre-SRAA DCYRA” and
“SRAA DCYRA.” To determine which applies, refer to the sentence procedure on the inmate’s
SENTRY Sentence Monitoring Computation Data.
b. Program Objectives. Expected results of this program are:
DCYRA inmates will be designated to institutions commensurate with their needs.
Unit Teams will help inmates who are eligible for parole establish meaningful Progress
Report goals with estimated completion dates at initial classification.
Staff will provide the U.S. Parole Commission (USPC) with timely and correct
documentation regarding inmates fulfillment of their Program Plan goals.
c. Pretrial/Holdover or Detainee Procedures. This directive does not apply to pretrial or
detainee inmates. Programming for DCYRA inmates occurs only at the designated institution.
2. DESIGNATION
DCYRA inmates are designated to institutions per the Program Statement Inmate Security
Designation and Custody Classification, unless otherwise stated in this PS. DCYRA inmates
are placed in Bureau institutions commensurate with their medical/mental health, security,
custody, and program needs, and as close as possible to their release destinations.
Designation and Sentence Computation Center (DSCC) staff identify the DCYRA sentence
procedure in SENTRY via the “CCM Remarks” section of the Update Security Designation
transaction. They also add the Case Management Activity (CMA) assignment of “YRA” in
SENTRY.
The Bureau does not have to segregate DCYRA inmates aged 18 years or older from adult
inmates.
Designation officials ensure that, for pre-SRAA DCYRA inmates, facilities where the U.S.
Parole Commission (USPC) conducts hearings are designated.
3. INITIAL CLASSIFICATION AND PROGRAM REVIEW
a. SRAA DCYRA Inmates. Initial Classification and Program Reviews for SRAA DCYRAs
are conducted per the Program Statement Inmate Classification and Program Review.
b. Pre-SRAA DCYRA Inmates. Initial Classification and Program Reviews are also
conducted per the Program Statement Inmate Classification and Program Review. As
pre-SRAA DCYRA inmates are immediately eligible for parole, they are scheduled for initial
parole hearings within 120 days of arrival at the designated facility (USPC Rules, 28 CFR
2.71(b)), regardless of the term imposed.

P5215.06

10/11/2011

2

Inherent to the recommendations and goals established at classification is the need to monitor
and adjust goals based on the inmate’s progress. The USPC relies on the inmate’s programming
compliance and completion it is essential that the Unit Team establish meaningful goals with
estimated completion dates at the inmate’s initial classification.
To ensure realistic goals (i.e., program completion dates) are established, the Unit Team
determines that the inmate understands his/her responsibility for accomplishing them. For
example, if a “wait list” is used for a particular class, explain the steps he/she needs to take to be
placed on it. It is recommended that the Unit Manager inform the course facilitator for each
class, program, or group of the Unit Team’s recommendation.
4. PROGRESS REPORTS
Progress Reports for DCYRA inmates are prepared per the Program Statement Progress
Reports, except as noted in this PS. A Progress Report and a Parole Packet (material included
in the Initial Parole Hearing Packet as specified in the Program Statement Inmate Central File,
Privacy Folder, and Mini-Files) are forwarded to the USPC after initial classification for
Pre-SRAA DCYRA Inmates.
DCYRA inmates releasing to a term of supervision have their final Progress Report forwarded to
the appropriate agency; consult the following table.
AGENCY RESPONSIBLE FOR THE SUPERVISION
OF D.C. CODE FELONY OFFENDERS

Inmate Intends to Reside in the
District of Columbia
Inmate Does Not Intend to
Reside in the District of
Columbia

Sentenced in U.S.
District Court

Sentenced in D.C.
Superior Court

U.S. Probation Office for
the District of Columbia
(USPO, DC)

Court Services and
Offender Supervision
Agency (CSOSA)

U.S. Probation Office in the district where inmate
intends to reside (relocation of supervision required)

The USPC can modify the conditions of supervision (parole or supervised release) for Pre-SRAA
DCYRA inmates. If a special post-release need exists for example, an inmate with an alcohol
problem maintaining contact with a community-based Alcoholics Anonymous group the
Progress Report should identify the need for a “Special Condition.”

P5215.06

10/11/2011

3

5. PAROLE HEARINGS
Pre-SRAA DCYRA inmates are immediately eligible for parole, but must apply for
consideration. An initial parole hearing is conducted within 120 days of an inmate’s arrival at
the designated institution, or as soon afterwards as practicable. If denied, rehearings are
scheduled every 12 months, and on the next available docket when the USPC is informed that the
inmate has completed his/her program plan (see 28 CFR 2.75(a)(2)(ii)). DCYRA inmates may
waive a parole proceeding, similar to adult parole-eligible inmates.
As noted, the USPC may conduct a rehearing earlier than scheduled upon the Warden’s
notification that the inmate has completed all recommended programs successfully. While
successful completion of the “Program Plan” does not in itself justify parole, it is a significant
factor the USPC considers in determining readiness.
Proper staff documentation of the inmate’s fulfillment of Program Plan goals is critical to the
USPC’s decision-making process (see Attachment A for a sample cover letter to the USPC). If
parole is denied at this hearing, rehearings are scheduled pursuant to 28 CFR 2.75(a)(2)(ii), but
no later than 12 months from the date of the hearing.
A Unit Team member familiar with the DCYRA inmate’s case should be present at all hearings
to clarify any questions concerning the Program Plan or the inmate’s progress.
6. DCYRA VIOLATOR TERMS
a. SRAA DCYRA Inmates. The status of a DCYRA inmate remanded to custody is that of a
“holdover” inmate until he/she arrives at the designated institution.
b. Pre-SRAA DCYRA Inmates. The USPC conducts either an institutional or local
revocation hearing to determine whether a DCYRA inmate’s parole should be revoked based on
new criminal conduct or administrative violations. Once parole is revoked, all aspects of this PS
apply, except that ordinarily the next rehearing is scheduled within six months of his/her arrival
at the institution designated for serving the violator term. This allows the USPC to consider the
inmate for reparole with the benefit of the new program plan.
7. NO FURTHER BENEFIT DETERMINATIONS
Per D.C. Code 24-101 and 24-905, the Director is authorized to determine that a DCYRA
inmate will derive no further benefit from his/her DCYRA sentence. This applies only to
pre-SRAA DCYRAs. Once removed from DCYRA sentence status, the inmate is considered
for parole as a regular adult D.C. Code felony offender.
a. Applicable Standard. A determination under this provision is based on a comprehensive
review of the inmate’s adjustment while incarcerated or on parole for the DCYRA sentence.
Factors that may support a “no further benefit” determination include:
P5215.06

10/11/2011

4

Aggressive/disruptive behavior while confined, as evidenced by disciplinary actions or other
reliable evidence.
Refusal to address drug or other behavioral/ psychological problems by completing various
programs.
Need for greater security as determined by conduct.
Return to custody as a parole violator due to revocation for criminal behavior.
b. Procedures. The DCYRA inmate’s Unit Team prepares the recommendation for a “no
further benefit” determination. This explains the factual basis supporting the recommendation,
including documents as necessary (discipline reports, Program Review Reports, Progress
Reports, etc.). The Notification to Inmate of Director’s No Further Benefit Determination form
(BP-A0895) is used to notify the inmate.
The recommendation packet is reviewed by the Warden, and forwarded to the Correctional
Programs Branch (CPB) Administrator, Central Office, with a copy to the Regional Correctional
Programs Administrator. The CPB Administrator and Office of General Counsel staff review
the recommendation and present it to the Director for a determination.
If the Director determines the inmate will derive “no further benefit” from the DCYRA sentence
treatment and supervision provisions, staff notify the inmate by providing a copy of the
recommendation packet.
Supporting documents in the packet should not include materials that pose an identifiable risk to
the inmate, others, or institution security and safety. Consult legal staff to determine whether
material is suitable for release to an inmate.
DCYRA inmates may appeal the “no further benefit” determination to the sentencing judge in
writing within 30 days of receipt. An appeal stays any action by the Director regarding a change
in the inmate’s status until the sentencing judge makes a determination. It is the inmate’s
responsibility to provide a copy of the written appeal request to the Unit Team to notify the
Bureau of the appeal. The judge’s decision is final and precludes further action by the Director
to change the DCYRA inmate’s status for a six-month period from the date of the decision. See
D.C. Code 24-905(b).
Failure to appeal the “no further benefit” determination within 30 days results in automatic
removal from status as a DCYRA inmate. The Unit Team changes the inmate’s SENTRY CMA
assignment from “YRA” to “YRA NFB” (see USPC Rules 2.106(c)).

P5215.06

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5

REFERENCES
Program Statements
P5100.08
Inmate Security Designation and Custody Classification (9/12/06)
P5215.05
Youth Corrections Act (YCA) Inmates and Programs (3/17/99)
P5251.05
Inmate Work and Performance Pay (10/1/08)
P5280.09
Inmate Furloughs (1/20/11)
P5290.14
Admission and Orientation Program (4/3/03)
P5300.21
Education, Training, and Leisure-Time Program Standards (2/18/02)
P5310.12
Psychology Services Manual (3/7/95)
P5321.07
Unit Management Manual (9/16/99)
P5322.12
Inmate Classification and Program Review (11/29/06)
P5325.07
Release Preparation Program (12/31/07)
P5350.28
Literacy Program (GED Standard) (12/1/03)
P5353.01
Occupational Education Programs (12/17/03)
P5354.03
Postsecondary Education Programs for Inmates (12/17/03)
P5800.11
Inmate Central File, Privacy Folder and Parole Commission Files (9/8/97)
P5800.15
Correctional Systems Manual (1/1/09)
P5803.07
Progress Reports (3/16/98)
P7310.04
Community Corrections Center (CCC) Utilization and Transfer Procedure
(12/16/98)
BOP Forms
BP-A0895

Notification to Inmate of Director s No Further Benefit Determination

ACA Standards
Standards for Adult Correctional Institutions, 4th Edition: 4-4295, 4-4299, 4-4300, 4-4304.
Performance-Based Standards for Adult Local Detention Facilities, 4th Edition: None.
Standards for Administration of Correctional Agencies, 2nd Edition: None.
Records Retention Requirements
Requirements and retention guidance for records and information applicable to this program are
available in the Records and Information Disposition Schedule (RIDS) on Sallyport.

P5215.06

10/11/2011

6

Attachment A
(PREPARE ON INSTITUTION LETTERHEAD)

(Date)
Isaac Fulwood, Jr., Chairman
U.S. Parole Commission
90 K Street, NE.
Washington, DC 20530
RE: Incenzio Youngblood
Register Number 00000-007
Dear Commissioner Fulwood:
The above-referenced inmate has successfully completed the program plan developed for him upon
commitment to this institution.
Mr. Youngblood has enhanced his employment opportunities by completing the Business
Vocational Training program and the Adult Basic Education program. He has demonstrated his
ability to conform to the rules and regulations of the institution by incurring no incident reports in
the highest or greatest categories. He completed a course of Correctional Counseling, receiving
the endorsement of his counselor. He maintains his personal appearance and living areas at
socially acceptable levels and consistently receives average work reports.
I recommend that he be reviewed by the U.S. Parole Commission for parole consideration.
Enclosed for your review is a copy of Mr. Youngblood’s current Progress Report. If further
information is needed, please do not hesitate to contact me.

Sincerely,

S. Straight
Warden
Enclosure: Progress Report

P5215.06

10/11/2011

7


Department of Justice
Office of Justice Programs

FOOD AND BEVERAGES POLICY
FOR GRANTS AND COOPERATIVE
AGREEMENTS

September 30, 2011
1

OFFICE OF JUSTICE PROGRAMS
FOOD AND BEVERAGES POLICY
FOR GRANTS AND COOPERATIVE AGREEMENTS
TABLE OF CONTENTS
Purpose and Overview
Section 1

Use of Funds to Provide Food and/or Beverages

Section 2

Rules for Grantee‐ and Cooperative Agreement Recipient‐Provided
Food and/or Beverages

Section 3

Food and/or Beverage Cost Thresholds
A. Refreshments
B. Meals

Section 4

Considerations When Providing Food and/or Beverages

2

Office of Justice Programs
Food and Beverages Policy
for Grants and Cooperative Agreements
Purpose and Overview
This Policy establishes rules for Office of Justice Programs (“Agency”) Grantees* and
Cooperative Agreement Recipients* in connection with the use of appropriated funds to
provide food and/or beverages (also referred to as meals and refreshments) at an event.
Except as provided in this Policy, federal funds are not to be used to provide food and/or
beverages.
This Policy does not require that federal funds be expended to provide food and/or
beverages at federally funded meetings, conferences, and events. This Policy merely sets
out the circumstances under which food and/or beverages may be provided, and the cost
limitations that apply to those expenditures. Budgetary considerations should be borne
prominently in mind when planning such events to determine the feasibility and prudence
of expending federal funds to pay for food and/or beverages. Food and beverage costs can
be significant at an event – pay careful attention to these costs and whether they are truly
necessary for a successful event.
This Food and Beverage Policy is designed to complement other federal rules, and Agency
guidelines, that govern various aspects of conferences, meetings, and similar events, held
or funded by the Agency.
Finally, the examples contained in this Policy statement are not to be viewed as definitive,
but rather as helpful illustrations to assist decision making in the context of event planning.
*Note: This Policy also applies to the use of federal funds by subrecipients, whose compliance is
monitored directly by the Grantee or Cooperative Agreement Recipient; the Agency, in turn, monitors
its Grantees and Cooperative Agreement Recipients to ensure compliance with the Policy.

Contact Information
• If you have any questions regarding how to interpret this Policy or apply it to costs
incurred under a grant or cooperative agreement, please contact the Office of the Chief
Financial Officer at ask.OCFO@usdoj.gov.

3

Section 1

Use of Funds to Provide Food and/or Beverages

Except as provided in this Policy, appropriations administered by the Agency are not to be
used to provide food and/or beverages.
•

The rules for when a Grantee or Cooperative Agreement Recipient of the Agency
may provide food and/or beverages are provided in Section 2.

•

Where this Policy permits the provision of food and/or beverages, the cost of such
food and beverages must 1) be reasonable, and 2) not exceed the applicable Agency‐
established cost thresholds provided in Section 3.

•

Moreover, the circumstances under which food and/or beverages are provided (to
whom, when, and in what manner) must be reasonable, so as to avoid even the
appearance of wasteful spending on food and/or beverages. Requirements and
considerations for mitigating such concerns are provided in Section 4.

Note: The rules for Agency‐funded travel of federal personnel – including those for per
diem meals and incidental expenses (M&IE) – are provided in the Federal Travel
Regulations, at 41 C.F.R. chapters 300‐304. The rules for travel funded through federal
awards are provided in Chapter 14 of the OJP Financial Guide.
http://www.ojp.usdoj.gov/financialguide. This Policy does not purport to govern federal
personnel on official travel, or the federally‐funded travel of grantee or cooperative
agreement recipient personnel, except to note that all personnel receiving per diem
allowances or reimbursements who are attending an event at which any full meals (e.g.,
continental breakfast, lunch, and/or dinner) are provided must deduct the cost of each
such meal provided from their per diem allowances (and may not claim reimbursement for
any such cost).

4

Section 2

Rules for Grantee and Cooperative Agreement RecipientProvided
Food and/or Beverages

A grantee or cooperative agreement recipient may use its Agency funding to provide food
and/or beverages when all of the following criteria are satisfied —
1. The provision of food and/or beverages is consistent with the award conditions
and program guidelines, and the event at which they are provided is an
allowable activity under the award.
2. The food and/or beverages provided are necessary to the event in that attendees
would not be able to fully participate without food and/or beverage.
•

Food and beverages are necessary when there is a need to cover essential
material in a limited time period, and due to the overall length of the event, it
is impractical for attendees to seek refreshments or meals elsewhere without
missing important event information (e.g., discussions, lectures, speeches).
(See 5 U.S.C. § 4109.)

•

There should be several hours of substantive/instructional material
presented before and after a refreshment or meal. When providing a full
meal, substantive/instructional material related to the event topic must be
presented during the meal for it to be considered necessary.

•

Food and/or beverages are not necessary when they are provided merely for
the pleasure or convenience of the attendees.

3. The food and/or beverages are provided at the event under appropriate
circumstances that minimize costs and prevent the appearance of waste and
abuse of resources (see Section 4, below, for more information).
4. The cost of the food and/or beverages provided is reasonable, and does not
exceed the following cost thresholds (see Section 3, below, for more
information):
a. Refreshments: The cost of refreshments plus any hotel service costs
(e.g., labor costs for room setup, taxes, tips) plus the effect of your
indirect cost rate (if applicable), cannot exceed 23% of the locality Meals
and Incidental Expenses (M&IE) rate per attendee per day; and

5

b. Meals: The cost of any meal provided, plus any hotel service costs,
cannot exceed 150% of the locality Meals and Incidental Expenses
(M&IE) rate per meal.
5. The food and/or beverages provided are not related directly to amusement
and/or social events. Any event where alcohol is being served is considered a
social event and, consequently, no costs associated with that event are allowable.

6

Section 3

Food and Beverage Cost Thresholds

In providing food and/or beverages at an event, the Agency, and its grantees, cooperative
agreement recipients, and contractors, must all follow the following limits on the costs of
refreshments and meals:
A. Refreshments
The cost of refreshments, plus any hotel service costs (e.g., labor cost for room
setup, taxes, tips) plus the effect of your indirect cost rate (if applicable), cannot
exceed 23 percent of the locality meals and incidental expenses (M&IE) rate per
attendee per day. These rates can be found at
http://www.gsa.gov/portal/category/21287.
•

Refreshments include light food and drink served during break time, such
as coffee, tea, milk, juice, soft drinks, donuts, bagels, fruit, pretzels,
cookies, chips, or muffins.

•

For example, if the M&IE rate for a particular location is $54 per person
per day, then the total refreshment costs cannot exceed $12.42 ($54 x
23%) per attendee per day. However, in the calculation below, you can
see that a Hotel Food & Beverage rate of $10 per person is actually a rate
of $15.25 per person after the effect of taxes, gratuity, and the indirect
cost rate:
Hotel Food & Beverage Rate
Tax Percentage
Gratuity Percentage
Indirect Cost Rate Percentage
Effective Food & Beverage Rate

$ 10.00
7%
18%
22%
$ 15.25

Tool you may use to calculate the Effective Food & Beverage Rate

7

B. Meals
The cost of any meal provided, plus any hotel service costs (e.g., labor cost for room
setup, taxes, tips), cannot exceed 150 percent of the locality M&IE rate per meal
per attendee. http://www.gsa.gov/portal/category/21287
•

For example, if lunch will be provided in a locality with a $49/day M&IE
rate, and the lunch rate is $13, then the cost of the lunch provided at the
conference cannot exceed $19.50 ($13 x 150%) per attendee per day.

•

All conference attendees must ensure that the provided meal is deducted
from their claimed M&IE; in this example, the recipient would deduct $13
from the amount of M&IE claimed for the lunch provided. The GSA M&IE
breakdown can be found at http://www.gsa.gov/portal/content/101518.

Note: While OJP does not necessarily agree that indirect rates should generally be applied
to food costs, to the extent that an organization has an indirect cost rate which does include
such food costs as a permissible item for inclusion with the indirect rate, then those
indirect costs must be included as part of the calculation to see if you meet the cost
thresholds, as indicated above. Of course, it is always permissible for an existing grantee or
recipient of a cooperative agreement to opt out of applying any indirect rates to food costs,
by notifying their grant manager of that decision in writing.

8

Section 4

Considerations When Providing Food and/or Beverages

The Agency, Agency contractors, and Agency grant and cooperative agreement recipients,
must take into account the following considerations in planning any events where food
and/or beverages will be served:
a. Formal agenda. The event where food and/or beverages will be served must be
supported with a formal agenda.
A formal agenda provides a list of all activities that shall occur during the event,
using an hour‐by‐hour time line. It must specifically include the times during the
event when food and/or beverages will be provided.
b. Mandatory attendance. The event where food and/or beverages will be served must be
mandatory for, and open to, all participants.
Meetings within meetings must independently meet the requirements of this Policy.
Example: At day two of a large national conference that lasts from 8 a.m. to 4:30
p.m., a subgroup of twenty program administrators decides to meet from 5 p.m. to 7
p.m. to discuss substantive topics relevant to the conference. Their meeting is not a
formal part of the conference agenda. Since not all conference participants may
attend this event, and it is not a part of the formal conference, it is not allowable to
use federal funds to provide a dinner for the subgroup. (In addition, there are not
several hours of substantive/informative material before and after the meal.)
Example: At the same conference as above, the group of twenty program
administrators is scheduled on the conference agenda to break out separately from
12 p.m. to 4:30 p.m., and will work through the plenary session lunch in a separate
room. In this case, it is allowable to use federal funds to provide a lunch for the
group of program administrators, as well as break foods at the normal afternoon
break times.
c. Timing of food and/or beverages. Provide several hours of substantive/instructional
material both before and after food and/or beverages are served. (Please note that
viewing exhibits is not considered to be substantive/instructional material.)
Do not end or begin events with a meal and/or break. Breakfasts (both “hot”, e.g.,
eggs and meat; and “continental”, e.g., a selection of coffees, teas, juices, fruits,
cereal, pastries, etc.) and dinners are generally not appropriate absent specific
justification.

9

d. All full meals should be “working” meals. When providing a full meal, ensure that there is
substantive/instructional material that will accompany that meal – for example, a
speaker or video presentation on the substantive event topic.
e. Appropriate break foods. Where break foods are provided, ensure that these are
appropriate and adhere to the cost thresholds.
Breaks are short pauses in an ongoing informational program at trainings, meetings,
conferences, or retreats. Typically, an all day event may (but does not have to)
include one break during a morning session and one break during an afternoon
session.
Break foods include light food and/or drinks such as coffee, tea, milk, juice, soft
drinks, donuts, bagels, fruit, vegetables, pretzels, cookies, chips, or other snack items.
f. Alcohol prohibited. Do not pay for bar (i.e., alcohol) charges using federal funds, or
registration fees (i.e., program income), as this will be considered an unallowable cost.
Do not make alcohol available at the event (doing so may make the entire event
unallowable). Cash bars are not permitted at federally‐funded events.
g. Per diem. Advise participants to reduce per diem appropriately. Federal attendees (and
many other attendees, including grant and cooperative agreement recipient staff
traveling using federal funding) may not receive a full per diem reimbursement for a
day where they were provided a full meal at a federally‐funded event, and are
responsible for reducing their per‐diem request by the cost of the meal. Per diem rates
for federally‐funded travel are available at www.gsa.gov/mie.
Note: The cost of the meal is determined by the locality GSA rate for a meal at that
time of day – e.g., where a lunch is provided at a conference in Washington, DC, the
federal attendee may not claim the lunch per diem, but instead must reduce the per
diem reimbursement request by the value of the lunch per diem, as set by the
locality per diem reimbursement rates for Washington, DC (not the actual value of
the lunch).
h. Concessions. In planning a meeting or conference, hotels and vendors often offer
concessions (free or discounted items/services) that reduce the government’s
conference costs. Recipients are encouraged to accept non‐perishable concessions from
hotels or vendors that would reduce costs instead of concessions on perishable items

10

such as reception, food, etc. Examples of such non‐perishable concessions include
discounts on audiovisual services or equipment, meeting space, and parking costs.
i.

Receptions. Receptions are expressly prohibited and are considered to be an
unallowable cost with federal funds.
A reception is a formal event which is not mandatory for all event participants to
obtain necessary information. Indicators of a reception include a cash bar,
inadequate seating for the entire group, food items from a reception menu (such as
finger foods) and a longer break (than utilized throughout the day) between the
substantive meetings and the reception.

j.

Appearance issues. Food and beverage costs are often subjected to close scrutiny, and
all entities using Agency funding to provide food and/or beverages must take care to
minimize costs and ensure that the spending on food and beverages does not appear to
be lavish or wasteful.
Example: Themed breaks (e.g., “movie theme” with popcorn and mini hotdogs) at
a business meeting may create the appearance of frivolity, and may not be
appropriate. Any decision to allocate funds to such activity should be carefully
made and justified in terms of business needs.
Example: A grantee compares prices for meals at the conference location and
discovers that two comparable meals are available, one very near the Agency cost
threshold and the other well below the cost threshold. The grantee does NOT have
to select the most expensive option, and in most cases the more reasonable choice
would be the less expensive option absent a compelling reason otherwise.
Example: A grantee compares prices for meals at the conference location and
discovers that two comparable meals are available, both good values, nearly the
same price, and within the cost thresholds. The hotel calls one meal the “High‐End
Exotic Tasting Menu”, which features escargot, filet mingon, and foie gras; while the
other is called “Conference Menu”, and features a chicken, beef, and vegetarian
option. The grantee, to avoid appearance issues regarding the appropriate use of
federal resources, may wish to select the “Conference Menu” option.

11

Appendix A Definitions
The following definitions apply to this Policy:
"Agency" means the Office of Justice Programs, and includes each and all of its components.
"Conference" or "Meeting" is a pre‐arranged formal event involving topical matters of
general interest, (e.g., matters that will contribute to improved conduct, supervision, or
management of the agency's functions or activities), to Federal agency and non‐Federal
agency participants, rather than a routine business meeting primarily involving day‐to‐day
agency operations and concerns. It has designated participants and/or registration, a
published substantive agenda, and scheduled speakers or discussion panels on a particular
topic. "Meeting" includes other designations, such as a conference, congress, convention,
seminar, symposium, training for grantees or contractors, and workshop. See 5 U.S.C. §
4110 (1994).
"Federal agency" means an Executive department, an independent establishment, a
Government corporation, the Library of Congress, the Government Printing Office, and the
Government of the District of Columbia. See 5 U.S.C. § 4101. The Office of Justice Programs
is a considered a Federal agency.
"Federal employees" are those persons employed in or under an agency of the United
States Federal Government or the District of Columbia. Federal contractors are also subject
to the restrictions of Federal employees regarding the provision of food and/or beverages
for the purposes of this Policy. See 5 U.S.C. § 4101.
"Federal grantee" means a State, local, or federally‐recognized Indian tribal government,
educational institution, hospital, or a for‐profit or non‐profit organization which is
responsible for the performance or administration of all or some part of a federal award.
See 2 C.F.R. Part 225, Appendix A; 2 C.F.R. Part 215, Appendix A. This definition includes
cooperative agreement recipients.
"Food" and/or "beverages" retain their common meanings. Food and/or beverages are
commonly served (and referred to) in two contexts: 1) Meals (such as a continental
breakfasts, working lunches, or dinners) and 2) Refreshments/breaks. (Note: Alcoholic
beverages are not allowable costs using federal funds.)

12

“Meals and incidental expenses” or “M&IE” rates are set by the U.S. General Services
Administration (GSA) and show maximum daily reimbursement (per diem) rates for meals
and incidental expenses. These rates vary depending on geographical area. See:
www.gsa.gov/mie.
"Reasonable" as it applies to cost of food and/or beverages means those costs which a
prudent person would have incurred under the circumstances prevailing at the time the
decision to incur the cost was made. Costs to consider include the cost of food and/or
beverage including service fees, cost per attendee, total cost of the event, and costs
incurred relative to costs in the geographical area; as well as the Agency‐established cost
thresholds.
“Working lunch/dinner” as it relates to this Policy means a formal and mandatory
lunch/dinner necessary for all participants to have full participation in the conference or
event. A working lunch/dinner must include a formal agenda including a program or
speakers that will impart necessary information important for full understanding of the
subject matter of the conference. There should be several hours of informative sessions
providing substantive information both before and after a working lunch/dinner (exhibits
are not included). Indicators of a working lunch/dinner include seating for all participants.
A cash bar is expressly prohibited.

13


U.S. Department of Justice
Federal Bureau of Prisons

PROGRAM STATEMENT
OPI:
CPD/CPB
NUMBER: 5326.05
DATE:
September 22, 2011

Marriages of Inmates

/s/
Approved: Thomas R. Kane
Acting Director, Federal Bureau of Prisons
1. PURPOSE AND SCOPE
§ 551.10 Purpose and scope.
The Warden shall approve an inmate’s request to marry except where a legal
restriction to the marriage exists, or where the proposed marriage presents a
threat to the security or good order of the institution, or to the protection of the
public.
The Warden may approve the use of institution facilities for an inmate’s marriage
ceremony. If a marriage ceremony poses a threat to the security or good order of
the institution, the Warden may disapprove a marriage ceremony in the
institution.
2. PROGRAM OBJECTIVE
The expected result of this program is: Inmate marriages will be requested, approved, and
conducted in accordance with all applicable laws, rules, and regulations.
3. DIRECTIVES AFFECTED
a. Summary of Changes. As part of the Reduction and Elimination of Duties Management
Assessment Project (REDMAP), the following procedural change is approved:
Federal Regulations from 28 Code of Federal Regulations, part 551, are shown in this type.
Implementing instructions are shown in this type.

■ Removed the requirement for the Case Management Coordinator to train case management
staff and other departments on marriage procedures.
b. Directive Rescinded
P5326.04

Marriages of Inmates (12/17/98)

c. Directives Referenced
P1330.16
P5280.09

Administrative Remedy Program (12/31/07)
Inmate Furloughs (2/10/11)

d. Rules cited in this Program Statement are contained in 28 CFR §551.10-16.
4. STANDARDS REFERENCED.
None.
5. PRETRIAL/HOLDOVER/AND/OR DETAINEE PROCEDURES
Procedures specified in this Program Statement apply to all Bureau holdover, pretrial, detainee,
and designated inmates. U.S. Marshals’ holdovers and Immigration and Customs Enforcement
(ICE) holdovers housed in Bureau custody shall be referred to those agencies for marriage
consideration.
6. AUTHORITY TO APPROVE A MARRIAGE
§ 551.11 Authority to approve a marriage.
(a) The Warden may approve the marriage of a federal inmate confined in a
federal institution. This authority may not be delegated below the level of
Acting Warden.
(b) The appropriate Community Corrections Manager may approve the
request to marry of a federal inmate who is not confined in a federal
institution (for example, a federal inmate who is in a community corrections
center, in home confinement, in state custody, or in a local detention facility).
7. ELIGIBILITY TO MARRY
§ 551.12 Eligibility to marry.
An inmate’s request to marry shall be approved provided:
(a) The inmate is legally eligible to marry;

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2

(b) The inmate is mentally competent;
(c) The intended spouse has verified, ordinarily in writing, an intention to
marry the inmate; and
(d) The marriage poses no threat to institution security or good order, or to
the protection of the public.
For example, staff shall review closely the marriage request of all inmates housed in Medium,
High, and Administrative Security Level institutions.
This scrutiny is to ensure the request is not made to circumvent existing Bureau visiting policy,
thereby posing a threat to institution security or good order.
8. APPLICATION TO MARRY
§ 551.13 Application to marry.
(a) A federal inmate confined in a Bureau institution who wants to get married
shall submit a request to marry to the inmate’s unit team. The unit team shall
evaluate the request based on the criteria identified in § 551.12. A written report
of the unit team’s findings, and its recommendation, shall be forwarded to the
Warden for a final decision.
The unit team shall base its recommendation on the criteria found in Section 7. When relevant, a
unit team representative may request information from the U.S. Probation Officer, the intended
spouse’s family (for example, where there is a question about the age of the intended spouse), or
other appropriate source(s).
(1) Information on the inmate’s legal eligibility to marry is determined through conversation
with the inmate and by reviewing the Inmate Central File, including the Pre-Sentence
Investigation Report.
Indication of a present or prior marriage, including a common-law marriage, requires written
verification that the marriage is legally dissolved. The status of a common-law marriage, and its
dissolution, are determined under the law of the state where the marriage occurred.
Questions on an inmate’s legal eligibility to marry shall be referred to the Regional Counsel.
(2) Information on an inmate’s mental competence may be obtained by reviewing mental health
reports prepared on the inmate prior to and/or during the present period of confinement.
A mental competency examination should not be conducted specifically to determine the
inmate’s mental competence to marry.

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3

(3) A unit team representative should contact, and request a written statement from, the intended
spouse to verify that party’s interest in marrying the inmate. If requested, the staff member may
reveal public record information from the inmate’s file, but this contact shall not include a
specific discussion of the inmate’s personal history, or suitability for marriage.
An intended spouse who requests this information shall be advised to discuss these issues with
the inmate, or, if preferred, to write the Warden.
(4) The unit team shall assess whether the marriage poses a threat to institution security or good
order, or to public protection. As part of their review, the unit team shall consult with the
Captain for his or her assessment.
(b) The Warden shall notify the inmate in writing whether the inmate’s
request to marry is approved or disapproved. A copy of this notification shall
be placed in the inmate’s central file. When the Warden’s decision is to
disapprove the inmate’s request, the notification to the inmate shall include a
statement of reason(s) for that action. The Warden shall advise the inmate
that the decision may be appealed through the Administrative Remedy
Procedure.
(c) All expenses of the marriage (for example, a marriage license) shall be
paid by the inmate, the inmate’s intended spouse, the inmate’s family, or
other appropriate source approved by the Warden. The Warden may not
permit appropriated funds to be used for an inmate marriage.
9. SPECIAL CIRCUMSTANCES
§ 551.14 Special circumstances.
(a) Detainers and pending Charges. Staff review of a marriage request from
an inmate who has a detainer(s) and/or a pending charge(s) shall include an
assessment of the legal effects of the marriage on these actions. For
example, an inmate could request to marry a potential witness in litigation
pending against that inmate. Approving this marriage could affect the status
of this litigation.
Another example might be an inmate with a deportation detainer who may request permission to
marry to avoid deportation. When warranted, and prior to the unit team’s report being forwarded
to the Warden, a unit team representative shall contact the U.S. Attorney, ICE, or other
appropriate authorities for their comments.
(b) Pretrial inmates. A pretrial inmate may request permission to marry in
accordance with the provisions of this rule. Staff shall contact the court, U.S.
Attorney, and in the case of an alien, the Immigration and Naturalization
Service, to advise of the marriage request of the pretrial inmate and to
request their comments.
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4

Comments received should be specifically mentioned, and considered, in the unit team’s report
to the Warden.
(c) Federal inmates not in Federal institutions. A federal inmate who is not
confined in a federal institution who wants to get married shall submit a
request to the appropriate Community Corrections Manager. Prior to making
a decision on the inmate’s request, the Community Corrections Manager shall
advise the confining authority of the inmate’s request and ask that
information on the criteria identified in § 551.12 be furnished.
Section § 551.12. refers to Section 7 of this Program Statement.
10. FURLOUGHS
§ 551.15 Furloughs.
An inmate whose request to marry is approved, and who also meets the
Bureau’s criteria for furlough (see part 570, subpart C), may be considered
for a furlough for the purpose of getting married.
See the Program Statement Inmate Furloughs for further information.
11. MARRIAGE CEREMONY IN THE INSTITUTION
§ 551.16 Marriage ceremony in the institution.
(a) The Warden may approve the use of institution facilities for an inmate’s
marriage ceremony. If a marriage ceremony poses a threat to the security or
good order of the institution, the Warden may disapprove a marriage
ceremony in the institution. The Warden may not delegate the authority to
approve or to disapprove a marriage ceremony in the institution below the
level of Acting Warden.
A marriage ceremony in the institution shall not be denied because it may inconvenience the
institution. Ordinarily, if there is concern about institution security or good order, the matter can
be resolved by controlling the place, time, and number of participants for the ceremony, or by
placing conditions or restrictions on the ceremony. When the Warden approves an inmate’s
application to marry, but denies the use of institution facilities for the marriage ceremony, the
Warden shall document the reasons for this disapproval.
(b) Expenses for a marriage ceremony in the institution shall be paid by the
inmate, the inmate’s intended spouse, the inmate’s family, or other
appropriate source approved by the Warden. The Warden may not permit
appropriated funds to be used for the marriage ceremony, except for those
inherent in providing the place and supervision for the event. Upon request

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5

of the inmate, Bureau of Prisons or community clergy, or a justice of the
peace may be authorized to assist in a marriage ceremony at the institution.
(1) The marriage ceremony may be performed by Bureau of Prisons or
community clergy, or by a justice of the peace.
The institution chaplain must confirm that a community person requested to perform the
marriage ceremony is either a member of the clergy or a justice of the peace.
(2) Because of ecclesiastical constraints, Bureau of Prisons chaplains may
decline to perform the marriage ceremony. Upon request of the inmate, a
Bureau chaplain will assist that inmate in preparing for an approved
marriage; for example, by providing, or arranging for an inmate to receive,
prenuptial marriage counseling.
(c) The Warden shall require that a marriage ceremony at the institution be a
private ceremony conducted without media publicity.
The Warden shall notify the Regional Director and the Assistant Director, Correctional Programs
Division, Central Office, of the proposed marriage of an inmate whose marriage might attract
national attention, or significant local or regional attention.
12. INSTITUTION SUPPLEMENT
Each Warden shall develop an Institution Supplement establishing local procedures to implement
this Program Statement. It should include, but not be limited to, information on the local
marriage laws and processing procedures (for example, marriage license requirements, blood
tests). A copy shall be forwarded to the Regional Correctional Programs Administrator.
Records Retention Requirements
For requirements and retention guidance for records and information that apply to this program, see the
Records and Information Disposition Schedule (RIDS) on Sallyport.

P5326.05 9/22/2011

Federal Regulations are shown in this type. Implementing instructions: this type.

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