Code of Massachusetts Regulations › 103 CMR - DEPARTMENT OF CORRECTION › Title 103 CMR 460.00 - Transfer Procedures For The Massachusetts Treatment Center › Section 460.08 - Transfer Board Process

Current through Register 1525, July 5, 2024
(1)
Applicability
- Only Treatment Center residents who
			 are civilly committed to the Treatment Center who have also been sentenced for
			 a criminal offense and whose sentences have not expired, may be referred to the
			 transfer board for consideration of possible transfer.
(2)
Referral
- The
			 Superintendent, the Clinical Director of Treatment, the Community Access Board,
			 or the Behavior Review Committee may refer the resident to the transfer board
			 to make recommendations regarding the transfer of a resident from the Treatment
			 Center to another correctional institution. All referrals to the transfer board
			 shall be in writing on a form approved by the Superintendent. The written
			 referral shall include a statement explaining the basis for the referral. A
			 copy of the written referral shall be provided to the resident within 48 hours
			 from the date that the referral is signed by the referring party. A resident
			 may be referred to the transfer board upon a reasonable belief that he meets
			 the transfer criteria as set forth in
			 103 CMR
			 460.07.
(3)
Initial Transfer Board
			 Hearing
- Upon referral of a resident to the transfer board, the
			 transfer board shall convene to make a recommendation concerning a Treatment
			 Center resident's transfer from the Treatment Center to another correctional
			 institution. The following standards shall be adhered to regarding the initial
			 transfer board hearing:
(a)
Board
			 Composition
- The transfer board shall be comprised of the
			 director of classification or a designee, the clinical director of treatment or
			 a designee, and the director of security or a designee. One board member shall
			 be designated by the Superintendent to act as Chairperson, and shall be
			 responsible for the overall quality of the review process and complying with
			 M.G.L. c. 123A, § 2A. All transfer board decisions require a simple
			 majority vote.
(b)
Notice of Hearing
- The Treatment Center resident
			 shall be provided with 30 days advance written notice prior to his transfer
			 board. Such notice may be waived by the resident in writing. The written notice
			 shall also inform the resident of the purpose of the hearing, the reasons for
			 the hearing, the procedures to be followed at the hearing, and a listing of the
			 date, time, and place of the hearing. Within ten days of the hearing date, the
			 resident shall be provided with the names of any witnesses to appear before the
			 transfer board and copies of documents to be considered by the transfer board
			 or a list of such documents if the documents are otherwise available to the
			 resident (
e.g
. the resident's Treatment Center record). Within
			 one day of the hearing date, the resident shall be provided a list of the board
			 members who will preside over the hearing.
(c)
Representation
-
			 The resident may be represented by an attorney or law student at the hearing.
			 It is the resident's responsibility to secure such representation and the
			 Department shall afford him the opportunity to do so. The Department shall
			 reschedule the hearing once at the request of the attorney or law student. The
			 Department may, but is under no obligation to, reschedule a hearing a second
			 time to accommodate the legal representative's schedule.
(d)
Request for Witnesses and
			 Evidence
- At least ten days before the hearing date, the resident
			 shall make a written request to the Chairperson for any witnesses or any
			 evidence which the resident wishes to present on his own behalf. The request
			 shall include a brief summary of the expected testimony of any proposed
			 witness. The Chairperson may rule on the resident's request either prior to the
			 hearing or at the hearing. The Chairperson shall allow the resident to call
			 such witnesses or to present such witnesses when permitting him to do so will
			 not be unduly hazardous to personal or institutional safety. The factors the
			 Chairperson may consider when ruling on a resident's request to call witnesses,
			 question witnesses or present other documentary or physical evidence shall
			 include, but not be limited to, the following:
1. Relevance;
2. Whether the evidence is cumulative or
			 repetitive;
3. Whether the presence
			 of the witness is likely to create an imminent threat of physical
			 harm;
4. Unavailability of a staff
			 person for a prolonged period of time due to illness, vacation or other
			 authorized absence, or for other good cause;
5. Failure of the resident to provide a brief
			 summary of the expected testimony of a proposed witness.
(e)
Case
			 Presentation
- The party referring the resident to the transfer
			 board may make an oral and/or written presentation to the transfer board
			 relevant to the applicable criteria for transfer set forth in
			 103 CMR
			 460.07. The referring party may designate
			 another Treatment Center staff member to make the written and/or oral
			 presentations. If the BRC or the CAB is the referring party, the Chairperson of
			 the referring party may designate a member of the referring body to make the
			 oral and/or written presentations.
(f)
Cross-examination
- Subject to the criteria set forth
			 in 103 CMR 460.08(3)(d), the resident or his representative shall be afforded
			 the opportunity to cross-examine any witnesses appearing before the transfer
			 board.
(g)
Resident
			 Presentation
- Following the referring party's presentation, the
			 Treatment Center resident scheduled for review may present any information
			 relevant to the question of the resident's transfer. Transfer board members may
			 direct questions to the resident. A legal representative may be allowed to make
			 a presentation at the hearing to the transfer board members for their
			 consideration. In the event the resident is unwilling to attend the transfer
			 board hearing, the Chairperson of the board may proceed with the
			 hearing.
(h)
Transfer
			 Board Decision
- The board shall base its decision on the
			 preponderance of evidence presented during the hearing. The board's decision
			 shall be determined by a majority vote no later than 48 hours following the
			 case and resident presentations. After the board votes, the chairperson of the
			 board or a designee shall orally notify the resident of the board's decision.
			 The board may take the following actions.
1.
			 The board may determine that the resident should not be transferred from the
			 Treatment Center. In such case, the determination of the board shall be final.
			 The board shall issue a written decision. Nothing, however, shall preclude a
			 subsequent referral of the resident to the transfer board, based upon the
			 criteria set forth in
			 103 CMR
			 460.07.
2. The board may delay its recommendation
			 concerning the resident's transfer to another correctional facility. If the
			 board delays its recommendation, the members of the board considering the
			 resident's case shall set a date to reconvene. The date may not be longer than
			 six months from the date of the initial transfer board hearing. The resident
			 shall be notified orally of this date following the board's vote. At that date,
			 the same board members shall reconvene to make a recommendation regarding the
			 resident's transfer. The board may not delay its recommendation a second time.
			 The reconvened hearing shall proceed in accordance with 103 CMR 460.08(3)(c)
			 and (d) and (f) through (k).
3. The
			 board may recommend the resident's transfer to another correctional facility if
			 it finds that the criteria set forth in
			 103 CMR
			 460.07 have been met. The board's
			 recommendation, and reasons for a minority vote shall be recorded in the
			 Chairperson's written summary report.
(i)
The Transfer Board
			 Summary
- If at the end of the transfer board hearing, the board
			 recommends the resident's transfer to another correctional institution, a
			 written summary of the board's recommendation shall be prepared by the
			 Chairperson or another board member designated by the Chairperson. All
			 summaries of board recommendations must be signed by the board Chairperson. A
			 copy of the summary presented to the resident shall serve as written notice of
			 the board's decision and the written summary shall indicate the date a copy was
			 presented to the resident. A copy of the summary, photocopies of documents the
			 board relied upon in arriving at its recommendation, and other related material
			 shall be submitted to the Superintendent or a designee within ten business days
			 of the close of the hearing. The summary shall contain, but shall not be
			 limited to:
1. The date the resident's
			 criminal sentence(s) are scheduled to expire;
2. The board's findings with regard to the
			 criteria for transfer set forth in
			 103 CMR
			 460.07;
3. The minimum conditions and criteria for
			 consideration of the resident's future return to the Treatment Center;
			 and
4. The reasons for a minority
			 vote, if there was one; and
5. A
			 recommendation as to the appropriate classification and placement of the
			 resident within the Department of Correction.
(j)
Superintendent's
			 Review
- If the transfer board recommends the resident's transfer
			 to another correctional facility, the transfer board Chairperson shall submit
			 to the Superintendent copies of the transfer board's written summary of the
			 board's recommendation for transfer, classification and placement, and all
			 accompanying documentation, as set forth in 103 CMR 460.08(3)(i). If the
			 Superintendent referred the resident to the transfer board pursuant to 103 CMR
			 460.08(2), the Superintendent shall designate an impartial Treatment Center
			 staff member to review the transfer board's recommendation. Within ten business
			 days after receipt of the transfer board's recommendation concerning the
			 resident's transfer, the Superintendent or a designee shall render a written
			 decision concerning the resident's transfer, classification and
			 placement.
(k)
Resident
			 Appeal
- Where a Treatment Center resident disagrees with any
			 recommendation of the transfer board, the resident may submit a written appeal
			 of the transfer board's recommendation to the Superintendent within five
			 business days of written notification of the board's recommendation. If the
			 Superintendent referred the resident to the transfer board pursuant to 103 CMR
			 460.08(2), the Superintendent shall designate an impartial Treatment Center
			 staff member to review the resident's appeal.
The Superintendent or designee shall respond in writing to the
				resident within ten business days, noting the result of the appeal.
(l)
The Commissioner's
			 Decision
- To finalize the transfer process, the Superintendent's
			 decision concerning the resident's transfer, classification and placement shall
			 be submitted for approval to the Commissioner or a designee.
(m)
Emergency
			 Transfers
.
1. Whenever a resident
			 is referred to the transfer board for reasons set forth in
			 103 CMR 460.07(2)(d) and
			 (e) the Superintendent or a designee may
			 transfer a resident to another correctional institution prior to the resident's
			 transfer board hearing if the Superintendent determines that the resident:
a. poses an imminent threat of serious
			 physical harm to other residents or staff, or poses an imminent threat of
			 escape, or needs to be transferred for his own safety; or
b. that reasons of security or considerations
			 pertinent to an ongoing investigation preclude the resident's housing in any
			 unit of the Treatment Center pending the transfer board hearing.
2. A transfer board hearing shall
			 be held within 20 business days of such an emergency transfer. However, where a
			 BRC investigation hearing or any investigation is pending, the transfer board
			 hearing shall initially consist only of the resident's security requirements;
			 specifically whether or not he continues to require residency outside of the
			 Treatment Center. Within ten business days of completion of the BRC hearing
			 and/or compilation of any investigation, a full hearing shall be held in
			 accordance with the procedure set forth in
			 103 CMR
			 420.08(3)(a) through (l). At
			 the discretion of the Superintendent, the hearing can he held either at the
			 Treatment Center or at the site of the resident's confinement.