[Federal Register Volume 73, Number 116 (Monday, June 16, 2008)]
[Proposed Rules]
[Pages 33957-33961]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-13261]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 549

[BOP-1088-P]
RIN 1120-AB20


Psychiatric Evaluation and Treatment

AGENCY: Bureau of Prisons, Justice.

ACTION: Proposed rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) proposes to 
revise its regulations on providing psychiatric treatment and 
medication to inmates. We propose these revised regulations to clarify 
and update the regulations in light of more recent caselaw.

DATES: Comments are due by August 15, 2008.

ADDRESSES: Our e-mail address is [email protected]. Comments should be 
submitted to the Rules Unit, Office of General Counsel, Bureau of 
Prisons, 320 First Street, NW., Washington, DC 20534. You may view an 
electronic version of this regulation at http://www.regulations.gov. 
You may also comment via the Internet to BOP at [email protected] or by 
using the www.regulations.gov comment form for this regulation. When 
submitting comments electronically you must include the BOP Docket No. 
in the subject box.

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

SUPPLEMENTARY INFORMATION: The Bureau proposes to revise its 
regulations on providing psychiatric treatment and medication to 
inmates. We published a proposed regulation document on this subject in 
the Federal Register on December 29, 2003 (68 FR 74892). We now 
withdraw that proposed regulation document and propose these revised 
regulations.
    First, we rename the subpart ``Psychiatric Evaluation and 
Treatment'' to more accurately reflect the substance of the 
regulations. The previous title, ``Administrative Safeguards for 
Psychiatric Treatment and Medication,'' did not reflect the Bureau's 
ability to conduct psychiatric evaluations before involuntary 
hospitalization in a suitable facility for care and treatment.
    Below, we provide a section-by-section analysis of the proposed 
regulations.
    Section 549.40 Purpose and scope. This section states that the 
purpose of the subpart is to describe procedures for voluntary and 
involuntary psychiatric evaluation, hospitalization, care, and 
treatment, in a suitable facility for persons in Bureau custody. These 
procedures are authorized by 18 U.S.C. Chapter 313 and 18 U.S.C. 4042.
    Current 28 CFR 549.43 refers to Title 18 U.S.C. 4241-4247, which 
comprised Chapter 313. The Adam Walsh Child Protection and Safety Act 
of 2006 (Pub. L. 109-248) (Walsh Act), enacted on July 27, 2006, 
amended title 18 of the United States Code, Chapter 313, to add a new 
section 4248, related to sexual offenders. We therefore refer now to 18 
U.S.C. Chapter 313 as a whole, instead of referring to specific 
sections of the statute.
    This section also notes that this subpart applies to inmates in 
Bureau custody as defined by 28 CFR part 500, specifically Sec.  
500.1(c), which defines inmates as ``all persons in the custody of the 
Federal Bureau of Prisons or Bureau contract facilities, including 
persons charged with or convicted of offenses against the United 
States; D.C. Code felony offenders; and persons held as witnesses, 
detainees, or otherwise.''
    Section 549.41 Hospitalization in a suitable facility. This section 
explains that, as used in 18 U.S.C. Chapter 313 and this subpart, 
``hospitalization in a suitable facility'' includes the Bureau's 
designation of inmates to medical referral centers or correctional 
institutions which provide the required care or treatment.
    Section 549.42 Use of psychiatric medications. This section 
describes how psychiatric medications will be used. Psychiatric 
medications will only be used for treatment of diagnosable mental 
illnesses and disorders, and their symptoms, for which such medication 
is accepted treatment, and that psychiatric medication will be 
administered only after following the applicable procedures in this 
subpart. This section is derived from current Sec.  549.40.
    In this regulation, we clarify that psychiatric medication is to be 
used only for a diagnosable psychiatric disorder or symptoms for which 
such medication is accepted treatment. Previously, the regulation 
allowed medication for ``symptomatic behavior.'' The word ``symptoms'' 
is more accurate medical terminology.
    Section 549.43 Transfer for psychiatric or psychological 
examination. This section describes the Bureau's transfer authority. 
Pursuant to 18 U.S.C. Chapter 229, Subchapter C (Sec.  3621(b)), the 
Bureau is authorized to transfer inmates between facilities. 
Accordingly, the Bureau may transfer an inmate to a suitable facility 
for psychiatric or psychological examination to determine whether 
hospitalization in a suitable facility for psychiatric care or 
treatment is needed.
    Section 549.44 Voluntary hospitalization in a suitable facility for 
psychiatric care or treatment, and voluntary administration of 
psychiatric medication. This section derives from current Sec.  549.41. 
In this section, we state that an inmate may be hospitalized in a 
suitable facility for psychiatric care or treatment after providing 
informed and voluntary consent when, in the professional medical 
judgment of qualified health services staff, such care or treatment is 
required and prescribed.

[[Page 33958]]

    This section is revised to more closely conform with the language 
of 18 U.S.C. Chapter 313. 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 qualified 
health services staff.
    As current Sec.  549.41 provides, this section likewise provides 
that an inmate may provide informed and voluntary consent to the 
administration of psychiatric medication which complies with the 
requirements of this subpart.
    This section also more thoroughly describes voluntary consent, 
explaining that the inmate's ability to provide informed and voluntary 
consent, both for hospitalization and for administration of psychiatric 
medications, will be assessed by qualified health services staff and 
documented in the inmate's medical record.
    Section 549.45 Involuntary hospitalization in a suitable facility 
for psychiatric care or treatment. This section derives from current 
Sec.  549.42. Current Sec.  549.42 describes procedures for involuntary 
admission of sentenced inmates, but does not describe procedures for 
unsentenced inmates.
    In this section, we state that a court determination is necessary 
for involuntary hospitalization or commitment of inmates pursuant to 18 
U.S.C. Chapter 313, who are in need of psychiatric care or treatment, 
but are unwilling or unable to voluntarily consent. Section 4245 in 
that chapter specifically provides for involuntary hospitalization by 
court order of a person serving a sentence of imprisonment if needed 
for psychiatric care or treatment.
    This section also describes due process procedures for involuntary 
hospitalization of inmates who are not subject to hospitalization under 
18 U.S.C. 4245 (because not serving a sentence of imprisonment), such 
as alien detainees subject to an order of deportation, exclusion or 
removal, material witnesses, contempt of court commitments, etc.
    If an examiner determines pursuant to Sec.  549.43 of this subpart 
that such an inmate should be hospitalized for psychiatric care or 
treatment, and the inmate is unwilling or unable to consent, the Bureau 
will provide the inmate with an administrative hearing to determine 
whether hospitalization for psychiatric care or treatment is warranted. 
The hearing will comply with the applicable procedural safeguards set 
forth in Sec.  549.46(a). However, the availability of this 
administrative hearing procedure in appropriate cases does not limit 
the Bureau's ability to seek judicial hospitalization or commitment of 
inmates under any applicable provision of Chapter 313, such as judicial 
commitment of inmates, whether sentenced or unsentenced, as sexually 
dangerous persons under 18 U.S.C. 4248.
    Finally, this regulation states that, following an inmate's 
involuntary hospitalization for psychiatric care or treatment as 
provided in this subsection, psychiatric medication may be 
involuntarily administered only after following the additional 
administrative procedures provided in Sec.  549.46 of this subpart.
    Section 549.46 Procedures for involuntary administration of 
psychiatric medication. This section derives from current Sec.  549.43.
    Subsection (a) states that when an inmate is unwilling or unable to 
provide voluntary written informed consent for recommended psychiatric 
medication, the inmate will be scheduled for an administrative hearing, 
which will provide procedural safeguards as listed in current Sec.  
549.43. These safeguards appear almost verbatim in the proposed 
regulation, with some exceptions:
    In subsection (a)(7), we remove ``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. 
Under the proposed regulations, this reason may still justify 
involuntary psychiatric medication when otherwise part of an inmate's 
grave disability. See, e.g., U.S. v. Gonzalez-Aguilar, 446 F.Supp. 2d 
1099 (D.Ariz. 2006); U.S. v. White, 431 F.3d 431 (5th Cir. 2005).
    Also in subsection (a)(7), we delete language that allowed the 
psychiatrist conducting an administrative hearing to determine whether 
medication is necessary to make an inmate competent to stand trial. 
This revision stems from the Supreme Court decision in Sell v. U.S., 
539 U.S. 166, 123 S.Ct. 2174 (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 
Sell Court. This is reflected in subsection (b).
    In subsection (a)(11), we state that if an inmate was afforded an 
administrative hearing which resulted in the involuntary administration 
of psychiatric medication, and the inmate subsequently consented to the 
administration of such medication, and then later revokes his consent, 
a follow-up hearing will be held before resuming the involuntary 
administration of psychiatric medication. All such follow-up hearings 
will fully comply with the procedures otherwise outlined in subsection 
(a). This will ensure that the inmate receives administrative process 
whenever psychiatric medication is given involuntarily, regardless of 
whether the inmate received such medication voluntarily in the past.
    Subsection (b) restates exceptions found in current Sec.  549.43(b) 
and (c) to the above procedural safeguards. The Bureau may 
involuntarily administer psychiatric medication to inmates, without 
following the procedures outlined above, in psychiatric emergencies and 
in the case of a court order for the purpose of restoring a person's 
competency to stand trial. Subsection (b)(2) states that, absent a 
psychiatric emergency as defined in (b)(1), the involuntary medication 
procedures in (a) do not apply to the involuntary administration of 
psychiatric medication for the sole purpose of restoring a person's 
competency to stand trial. Only a federal court of competent 
jurisdiction may order the involuntary administration of psychiatric 
medication for the sole purpose of restoring a person's competency to 
stand trial.
    Current Sec.  549.43(c) states that procedures in this section do 
not apply to military prisoners, unsentenced Immigration and 
Naturalization detainees, unsentenced prisoners in Bureau custody, and 
District of Columbia Code offenders. We delete this language for the 
following reasons:
    First, proposed Sec.  549.45(b) provides procedures for inmates in 
Bureau custody who are not otherwise subject to hospitalization 
pursuant to 18 U.S.C. Chapter 313. We do not, therefore, need to have 
an exception to the procedural safeguards for unsentenced immigration 
detainees or other unsentenced inmates in Bureau custody.
    Secondly, 18 U.S.C. Chapter 313 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

[[Page 33959]]

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 D.C. Code felony 
offenders.

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

Executive Order 13132

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

Regulatory Flexibility Act

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

Unfunded Mandates Reform Act of 1995

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

Small Business Regulatory Enforcement Fairness Act of 1996

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

List of Subjects in 28 CFR Part 549

    Prisoners.

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.

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), Chapter 313, 5006-
5024 (Repealed October 12, 1984, as to offenses committed after that 
date), 5039; 28 U.S.C. 509, 510.

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

Subpart C--Psychiatric Evaluation and Treatment


Sec.  549.40  Purpose and scope.

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


Sec.  549.41  Hospitalization in a suitable facility.

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


Sec.  549.42  Use of psychiatric medications.

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


Sec.  549.43  Transfer for psychiatric or psychological examination.

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


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

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

[[Page 33960]]

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

    (a) Hospitalization of inmates pursuant to 18 U.S.C. Chapter 313. A 
court determination is necessary for involuntary hospitalization or 
commitment of inmates pursuant to 18 U.S.C. Chapter 313, who are in 
need of psychiatric care or treatment, but are unwilling or unable to 
voluntarily consent.
    (b) Hospitalization of inmates not subject to hospitalization 
pursuant to 18 U.S.C. Chapter 313. Pursuant to 18 U.S.C. 4042, the 
Bureau is authorized to provide for the safekeeping, care, and 
subsistence, of all persons charged with offenses against the United 
States, or held as witnesses or otherwise. Accordingly, if an examiner 
determines pursuant to Sec.  549.43 of this subpart that an inmate not 
subject to hospitalization pursuant to 18 U.S.C. Chapter 313 should be 
hospitalized for psychiatric care or treatment, and the inmate is 
unwilling or unable to consent, the Bureau will provide the inmate with 
an administrative hearing to determine whether hospitalization for 
psychiatric care or treatment is warranted. The hearing will comply 
with the applicable procedural safeguards set forth in Sec.  549.46(a).
    (c) Psychiatric medication. Following an inmate's involuntary 
hospitalization for psychiatric care or treatment as provided in this 
section, psychiatric medication may be involuntarily administered only 
after following the administrative procedures provided in Sec.  549.46 
of this subpart.


Sec.  549.46  Procedures for involuntary administration of psychiatric 
medication.

    Except as provided in paragraph (b) of this section, the Bureau 
will follow the administrative procedures of paragraph (a) of this 
section before involuntarily administering psychiatric medication to 
any inmate.
    (a) Procedures. When an inmate is unwilling or unable to provide 
voluntary written informed consent for recommended psychiatric 
medication, the inmate will be scheduled for an administrative hearing. 
The hearing will provide the following procedural safeguards:
    (1) Unless an exception exists as provided in paragraph (b) of this 
section, the inmate will not be involuntarily administered psychiatric 
medication before the hearing.
    (2) The inmate must be provided 24-hours advance written notice of 
the date, time, place, and purpose, of the hearing, including an 
explanation of the reasons for the psychiatric medication proposal.
    (3) The inmate must be informed of the right to appear at the 
hearing, to present evidence, to have a staff representative, to 
request witnesses, and to request that witnesses be questioned by the 
staff representative or by the person conducting the hearing. If the 
inmate does not request a staff representative, or requests a staff 
representative with insufficient experience or education, or one who is 
not reasonably available, the institution mental health division 
administrator must appoint a qualified staff representative.
    (4) The hearing is to be conducted by a psychiatrist other than the 
attending psychiatrist, and who is not currently involved in the 
diagnosis or treatment of the inmate.
    (5) Witnesses should be called if they are reasonably available and 
have information relevant to the inmate's mental condition or need for 
psychiatric medication. Witnesses who will provide only repetitive 
information need not be called.
    (6) A treating/evaluating psychiatrist/clinician, who has reviewed 
the case, must be present at the hearing and must present clinical data 
and background information relative to the inmate's need for 
psychiatric medication. Members of the treating/evaluating team may 
also be called as witnesses at the hearing to provide relevant 
information.
    (7) The psychiatrist conducting the hearing must determine whether 
involuntary administration of psychiatric medication is necessary 
because, as a result of the mental illness or disorder, the inmate is 
dangerous to self or others, poses a serious threat of damage to 
property affecting the security or orderly running of the institution, 
or is gravely disabled (manifested by extreme deterioration in personal 
functioning).
    (8) The psychiatrist must prepare a written report regarding the 
initial decision. The inmate must be promptly provided a copy of the 
initial decision report, and informed that he/she may appeal it to the 
institution's mental health division administrator. The inmate's 
appeal, which may be handwritten, must be submitted within 24 hours 
after receipt of the hearing officer's report. Upon request of the 
inmate, the staff representative will assist the inmate in preparing 
and submitting the appeal.
    (9) If the inmate appeals the initial decision, psychiatric 
medication must not be administered before the administrator issues a 
decision on the appeal, unless an exception exists as provided in 
paragraph (b) of this section. The inmate's appeal will ordinarily be 
reviewed by the administrator or his designee within 24 hours of its 
submission. The administrator will review the initial decision and 
ensure that the inmate received all necessary procedural protections, 
and that the justification for administering psychiatric medication is 
appropriate.
    (10) A psychiatrist, other than the attending psychiatrist, must 
provide follow-up monitoring of the patient's treatment or medication 
at least once every 30 days after the initial decision. The follow-up 
must be documented in the medical record.
    (11) If an inmate was afforded an administrative hearing which 
resulted in the involuntary administration of psychiatric medication, 
and the inmate subsequently consented to the administration of such 
medication, and then later revokes his consent, a follow-up hearing 
will be held before resuming the involuntary administration of 
psychiatric medication. All such follow-up hearings will fully comply 
with the procedures outlined in paragraphs (a)(1) through (10) of this 
section.
    (b) Exceptions. The Bureau may involuntarily administer psychiatric 
medication to inmates in the following circumstances without following 
the procedures outlined in paragraph (a) of this section:
    (1) Psychiatric emergencies. (i) During a psychiatric emergency, 
psychiatric medication may be administered only when the medication 
constitutes an appropriate treatment for the mental illness or disorder 
and its symptoms, and alternatives (e.g., seclusion or physical 
restraint) are not available or indicated, or would not be effective. 
If psychiatric medication is still recommended after the psychiatric 
emergency, and the emergency criteria no longer exist, it may only be 
administered after following the procedures in Sec. Sec.  549.44 or 
549.46 of this subpart.
    (ii) For purposes of this subpart, a psychiatric emergency exists 
when a person suffering from a mental illness or disorder creates an 
immediate threat of:
    (A) Bodily harm to self or others;
    (B) Serious destruction of property affecting the security or 
orderly running of the institution; or
    (C) Extreme deterioration in personal functioning secondary to the 
mental illness or disorder.
    (2) Court orders for the purpose of restoring competency to stand 
trial. Absent a psychiatric emergency as defined above, Sec.  549.46(a) 
of this subpart does not apply to the

[[Page 33961]]

involuntary administration of psychiatric medication for the sole 
purpose of restoring a person's competency to stand trial. Only a 
federal court of competent jurisdiction may order the involuntary 
administration of psychiatric medication for the sole purpose of 
restoring a person's competency to stand trial.

 [FR Doc. E8-13261 Filed 6-13-08; 8:45 am]
BILLING CODE 4410-05-P