[Federal Register Volume 68, Number 248 (Monday, December 29, 2003)]
[Proposed Rules]
[Pages 74892-74893]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-31704]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 549

[BOP-1088-P]
RIN 1120-AB20


Administrative Safeguards for Psychiatric Treatment and 
Medication

AGENCY: Bureau of Prisons, Justice.

ACTION: Proposed rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) amends its 
regulations on Psychiatric Treatment and Medication. We make several 
minor word changes to conform more closely with the language of 18 
U.S.C. 4241-4247 on psychiatric hospitalization. We remove from the 
rule two elements of the standard for determining whether treatment or 
psychotropic medication is necessary because this element is 
inconsistent with community standards and case law. We also change the 
rules to conform with statutory authority regarding military prisoners 
and District of Columbia (DC) Code violators in Bureau custody. 
Previously, our procedures for involuntary psychiatric treatment and 
medication did not apply to military prisoners or DC Code violators. 
Under new statutory authority, military prisoners who are incompetent 
to stand trial, or who have been found not guilty by reason of lack of 
mental responsibility may now be committed to the Bureau's custody. 
Sentenced DC Code offenders may now be involuntarily committed to a 
Bureau psychiatric hospital. Such military prisoners and DC Code 
violators are subject to our regulations. We revise the applicability 
statement accordingly.

DATES: Please submit comments by February 27, 2004.

ADDRESSES: Rules Unit, Office of General Counsel, Bureau of Prisons, 
320 First Street, NW., Washington, DC 20534.

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

SUPPLEMENTARY INFORMATION: The Bureau amends its regulations on 
providing psychiatric treatment and medication to inmates. We published 
a final rule on this subject in the Federal Register on September 25, 
1995 (60 FR 49444).
    The following is a section-by-section analysis of the changes we 
are making:
    Section 549.40 Use of Psychotropic Medications. In this rule, we 
merely clarify that psychotropic medication is to be used only for a 
diagnosable psychiatric disorder or symptoms for which such medication 
is accepted treatment. Previously, the rule allowed medication for 
``symptomatic behavior.'' The word ``symptoms'' is more accurate 
medical terminology.
    Section 549.41 Voluntary Admission And Psychotropic Medication. In 
this section, we revise subparagraph (a) to more closely conform with 
the language of 18 U.S.C. 4241-4247. We change the words ``psychiatric 
treatment and medication'' to ``psychiatric hospitalization and 
treatment.'' We also clarify that inmates may be voluntarily admitted 
for psychiatric hospitalization and treatment when determined necessary 
by a clinician with hospital-admitting privileges, which is more 
accurate than the former term ``qualified health personnel.''
    Section 549.42 Involuntary Admission. In this section, as in the 
previous section, we alter the first sentence by changing the words 
``psychiatric treatment'' to ``psychiatric hospitalization'' to more 
closely conform with the language of 18 U.S.C. 4245.
    Section 549.43 Involuntary Psychiatric Treatment and Medication. In 
this section, we revise the second sentence of the introductory 
paragraph by deleting'', and no further judicial authorization is 
needed for the admission decision.'' and inserting ``for the 
involuntary admission.'' The current rule explains that ``[c]ourt 
commitment for the hospitalization provides the judicial due process 
hearing.'' The remaining phrase, which states that no further judicial 
authorization is needed, is redundant and unnecessary. We therefore 
make this change to streamline and clarify the language of this rule.
    In subparagraph (a)(5), we clarify that the psychiatrist conducting 
a hearing to determine whether treatment or psychotropic medication is 
necessary will no longer consider whether the inmate is unable to 
function in the open population of a mental health referral center or a 
regular prison as a separate basis to justify involuntary 
administration of medication. We make this change because we found this 
element to be inconsistent with community standards and applicable case 
law. See Cochran v. Dysart, 965 F.2d 649 (8th Cir. 1992).
    Also in subparagraph (a)(5), we delete language that allowed the 
psychiatrist conducting an administration hearing to determine whether 
psychotropic medication is necessary to make an inmate competent to 
stand trial. This revision stems from the Supreme Court decision in 
Sell v. U.S., 2003 WL 21372478, decided on June 16, 2003. Under the 
Sell decision, where involuntary treatment is considered solely for the 
purpose of rendering the defendant competent to stand trial, only the 
trial court may order involuntary medication after applying the 
standards set forth by the Court.
    Finally, we change subparagraph (c) for the following reasons: 
Title 18 U.S.C. 4241-4247 and various Federal court decisions required 
certain due process procedures before involuntary hospitalization or 
involuntary psychiatric treatment. Under former 18 U.S.C. 4247(j), 
these due process procedures did not apply to military prisoners or DC 
Code violators.
    However, new 10 U.S.C. 876b provides that military prisoners who 
are incompetent to stand trial or who have been found not guilty by 
reason of lack of mental responsibility may be committed to the custody 
of the Attorney General and that the procedures authorized under 18 
U.S.C. 4241(d), 4246, and 4243 apply. Likewise, under new 18 U.S.C. 
4247(j), DC Code violators are subject to commitment procedures 
specified at 18 U.S.C. 4245 and 4246.
    Accordingly, we revise the list of exceptions in 28 CFR 549.43(c) 
to remove the reference to military prisoners and DC Code violators. We 
also clarified the last sentence of paragraph (c).

Executive Order 12866

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review'', section 
1(b), Principles of Regulation. The Director has determined that this 
rule is not a ``significant regulatory action'' under Executive Order 
12866, section 3(f), and accordingly this rule has not been

[[Page 74893]]

reviewed by the Office of Management and Budget.

Executive Order 13132

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

Regulatory Flexibility Act

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

Unfunded Mandates Reform Act of 1995

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

Small Business Regulatory Enforcement Fairness Act of 1996

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

List of Subjects in 28 CFR Part 549

    Prisoners.

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

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 549--MEDICAL SERVICES

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

    Authority: 5 U.S.C. 301; 10 U.S.C. 876b; 18 U.S.C. 3621, 3622, 
3524, 4001, 4005, 4042, 4045, 4081, 4082 (Repealed in part as to 
offenses committed on or after November 1, 1987), 4241-4247, 5006-
5024 (Repealed October 12, 1984 as to offenses committed after that 
date), 5039; 28 U.S.C. 509, 510.

    2. Revise Sec.  549.40 to read as follows:


Sec.  549.40.  Use of psychotropic medications.

    Psychotropic medication is to be used only for a diagnosable 
psychiatric disorder or symptoms for which such medication is accepted 
treatment.
    3. Revise Sec.  549.41(a) to read as follows:


Sec.  549.41  Voluntary admission and psychotropic medication.

    (a) A sentenced inmate may be voluntarily admitted for psychiatric 
hospitalization and treatment when, in the professional judgment of a 
clinician with hospital-admitting privileges such inmate would benefit 
from such treatment and demonstrates the ability to give informed 
consent to such admission. The assessment of the inmate's ability to 
give informed consent will be documented in the inmate's medical record 
by qualified health personnel.
* * * * *


Sec.  549.42  [Amended]

    4. Amend Sec.  549.42 by removing the words ``for psychiatric 
treatment'' from the first sentence and adding in their place the word 
``psychiatric'' before the word ``hospitalization'' in the first 
sentence.
    5. Amend Sec.  549.43 as follows:
    a. In the second sentence of the introductory paragraph remove ``, 
and no further judicial authorization is needed for the admission 
decision.'' and add in its place ``for the involuntary admission.''
    b. Revise paragraph (a)(5).
    c. In the second sentence of paragraph (b), add the words ``or 
disorder,'' after ``mental illness.''
    d. Revise paragraph (c) to read as follows:


Sec.  549.43  Involuntary psychiatric treatment and medication.

    (a) * * *
    (5) The psychiatrist conducting the hearing shall determine whether 
treatment or psychotropic medication is necessary because the inmate is 
dangerous to self or others, or is gravely disabled. The psychiatrist 
shall prepare a written report regarding the decision.
* * * * *
    (c) Exceptions. Title 18 U.S.C. 4241-4247 do not apply to 
unsentenced Department of Homeland Security (DHS) detainees, 
unsentenced prisoners in Bureau custody as a result of a court order 
(e.g., a civil contemnor), and state or territorial prisoners. For 
those persons not covered by sections 4241-4247, the decision to 
involuntarily admit the person to the hospital must be made at an 
administrative hearing, meeting the requirements of Vitek v. Jones, 445 
U.S. 480 (1980). The decision to provide involuntary treatment, 
including medication, accordingly is to be made at an administrative 
hearing in compliance with Sec.  549.43(a).

[FR Doc. 03-31704 Filed 12-24-03; 8:45 am]
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