2011-17160. Psychiatric Evaluation and Treatment

AGENCY:

Bureau of Prisons, Justice.

ACTION:

Final rule.

SUMMARY:

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

DATES:

This rule is effective on August 12, 2011.

FOR FURTHER INFORMATION CONTACT:

Sarah Qureshi, Office of General Counsel, Bureau of Prisons, phone [phone].

SUPPLEMENTARY INFORMATION:

The Bureau finalizes regulations on providing psychiatric treatment and medication to inmates. We first published a proposed regulation document on this subject in the Federal Register on December 29, 2003 (68 FR 74892). We then withdrew that proposed regulation document and proposed revised regulations on June 16, 2008 (73 FR 33957). We received four comments, which we address below.

Two commenters addressed § 549.45(b) of the proposed regulation, which states that, “[p]ursuant 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 § 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 § 549.46(a).”

The commenters believe that “the administrative hearing process” under this section “is a standard that provides less procedural protection to the inmate than does a court determination.” The commenters felt that “such a standard is unreasonable and unfair to the inmates covered by § 549.45(b)” because these inmates may include “material witnesses and other detainees who may not have been convicted,” and are, therefore, “entitled to a level of review equal to or surpassing that of sentenced inmates.”

In response, we note that proposed § 549.45 states that a court determination is necessary for involuntary hospitalization or commitment of inmates pursuant to 18 U.S.C. Chapter 313, who are in need of psychiatric care or treatment, but are unwilling or unable to voluntarily consent. Section 4245 in that chapter specifically provides for involuntary hospitalization by court order of a person serving a sentence of imprisonment if needed for psychiatric care or treatment. The necessity of a court determination for these types of inmates is, therefore, prescribed by statute.

In contrast, however, no court determination is prescribed by statute with regard to involuntary hospitalization of inmates who are not subject to hospitalization under 18 U.S.C. 4245 (because not serving a sentence of imprisonment), such as alien detainees subject to an order of deportation, exclusion or removal, material witnesses, contempt of court commitments, etc.

Nevertheless, the Director has chosen to provide administrative due process with regard to involuntary hospitalization of such inmates, “[b]ecause prisoners facing involuntary transfer to a mental hospital are threatened with immediate deprivation of liberty interests they are currently enjoying, and because of the inherent risk of a mistaken transfer,” adhering to the principles set forth in Vitek v. Jones, 445 U.S. 480 at 495, 100 S.Ct. 1254 at 1265 (1980).

We note that the availability of this administrative hearing procedure in appropriate cases does not limit the Bureau's ability to seek judicial hospitalization or commitment of inmates under any applicable provision of Chapter 313, such as judicial commitment of inmates, whether sentenced or unsentenced, as sexually dangerous persons under 18 U.S.C. 4248.

However, because the commenters appear to question or misunderstand the due process procedures that the Bureau implements through this final rule that specifically apply to the involuntary hospitalization of inmates who are not subject to hospitalization under 18 U.S.C. 4245, we alter § 549.45(b) as follows: We delete the reference to the due process procedures in § 549.46(a) and simply restate them, tailored for reference to involuntary hospitalization instead of involuntary administration of psychiatric medication, in the relevant regulation, § 549.45(b).

Also, the American Psychiatric Association (APA) and the American Civil Liberties Union (ACLU) commented regarding the Bureau's use of the phrase `qualified health services staff' in § 549.44 of the proposed regulation. The APA recommended that the Bureau “clarify this section by either revising the proposed language in the regulation or issuing a policy guide which defines which personnel are considered ‘qualified health services staff’ for the purposes of these sections.” The ACLU provided a similar comment. The Bureau will issue a policy guide, as suggested by the APA, which will clarify the qualifications for staff with regard to voluntary hospitalization in a suitable facility for psychiatric care or treatment, and voluntary administration of psychiatric medication. Bureau policy guides are called Program Statements, and are designed specifically to provide more detailed staff guidance with regard to implementing Bureau regulations, policies, and programs. Because Program Statements are the primary vehicle for staff guidance, it would be appropriate to detail health services staff qualifications in the relevant Bureau Program Statements.

Also, the APA would “urge that [the Bureau] state that only licensed physicians are qualified to make decisions about the administration of psychopharmacologic medications and that, when possible, a psychiatrist should be consulted. This clarification would provide assurance that inmates are receiving appropriate mental health treatment and that consent to any hospitalization or medication is truly warranted and voluntary and meets state and Federal law requirements.” Likewise, the ACLU commented that “the regulations should be amended to clarify that the exception authorizing more cursory procedures for emergencies requires that any treatment be `medically' appropriate, even in an emergency.”

In response, we state that Bureau policy currently requires that psychiatric medications be prescribed only by Bureau medical health professionals that have a permanent, full, and unrestricted license to practice medicine in a state, District of Columbia, the Commonwealth of Puerto Rico, or a territory of the United States. Bureau policy on pharmacy services is predicated on the requirement that the use of psychiatric medications and controlled substances be restricted to physicians only and prescribed only when medically appropriate. Further, if an order for psychiatric medication is prepared or written by a mid-level practitioner (Physician's Assistant or Nurse Practitioner), it must be signed by a licensed physician before it can be filled by a pharmacist.

Another commenter suggested that the Bureau “recognize psychiatric advance practice nurses as part of the treatment team in correctional facilities.” While the Bureau does utilize nurse practitioners, physician's assistants, and nurses, as stated above, any prescription for psychiatric medication must be signed by a licensed physician.

For the aforementioned reasons, we now finalize the proposed rule published on June 16, 2008 (73 FR 33957), with minor changes for clarity.

Executive Order 12866

This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review”, section 1(b), Principles of 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 § 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This regulation will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

List of Subjects in 28 CFR Part 549

• Prisoners

Thomas R. Kane,

Acting Director, Federal Bureau of Prisons.

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

PART 549—MEDICAL SERVICES

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

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

§ 549.40

Purpose and scope.

(a) This subpart describes procedures for voluntary and involuntary psychiatric evaluation, hospitalization, care, and treatment, in a suitable facility, for persons in Bureau of Prisons (Bureau) custody. These procedures are authorized by 18 U.S.C. Chapter 313 and 18 U.S.C. 4042.

(b) This subpart applies to inmates in Bureau custody, as defined in 28 CFR part 500.

§ 549.41

Hospitalization in a suitable facility.

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

§ 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.

§ 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.

§ 549.44

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

(a) Hospitalization. An inmate may be hospitalized in a suitable facility for psychiatric care or treatment after providing informed and voluntary consent when, in the professional medical judgment of qualified health services staff, such care or treatment is required and prescribed.

(b) Psychiatric medication. An inmate may also provide informed and voluntary consent to the administration of psychiatric medication that complies with the requirements of § 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.

§ 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 § 549.43 of this subpart that an inmate not subject to hospitalization pursuant to 18 U.S.C. chapter 313 should be hospitalized for psychiatric care or treatment, and the inmate is unwilling or unable to consent, the Bureau will provide the inmate with an administrative hearing to determine whether hospitalization for psychiatric care or treatment is warranted. The hearing will provide the following procedural safeguards:

(1) The inmate will not be involuntarily administered psychiatric medication before the hearing except in the case of psychiatric emergencies, as defined in § 549.46(b)(1).

(2) The inmate must be provided 24-hours advance written notice of the date, time, place, and purpose, of the hearing, including an explanation of the reasons for the proposal to hospitalize the inmate for psychiatric care or treatment.

(3) The inmate must be informed of the right to appear at the hearing, to present evidence, to have a staff representative, to request witnesses, and to request that witnesses be questioned by the staff representative or by the person conducting the hearing. If the inmate does not request a staff representative, or requests a staff representative with insufficient experience or education, or one who is not reasonably available, the institution mental health division administrator must appoint a qualified staff representative.

(4) The hearing is to be conducted by a psychiatrist other than the attending psychiatrist, and who is not currently involved in the diagnosis or treatment of the inmate.

(5) Witnesses should be called if they are reasonably available and have information relevant to the inmate's mental condition or need for hospitalization. Witnesses who will provide only repetitive information need not be called.

(6) A treating/evaluating psychiatrist/clinician, who has reviewed the case, must be present at the hearing and must present clinical data and background information relative to the inmate's need for hospitalization. Members of the treating/evaluating team may also be called as witnesses at the hearing to provide relevant information.

(7) The psychiatrist conducting the hearing must determine whether involuntary hospitalization is necessary because the inmate is presently suffering from a mental disease or defect for the treatment of which he is in need of custody for care or treatment in a suitable facility.

(8) The psychiatrist must prepare a written report regarding the initial decision. The inmate must be promptly provided a copy of the initial decision report, and informed that he/she may appeal it to the institution's mental health division administrator. The inmate's appeal, which may be handwritten, must be submitted within 24 hours after receipt of the hearing officer's report. Upon request of the inmate, the staff representative will assist the inmate in preparing and submitting the appeal.

(9) If the inmate appeals the initial decision, hospitalization must not occur before the administrator issues a decision on the appeal. The inmate's appeal will ordinarily be reviewed by the administrator or his designee within 24 hours of its submission. The administrator will review the initial decision and ensure that the inmate received all necessary procedural protections, and that the justification for hospitalization is appropriate.

(c) Psychiatric medication. Following an inmate's involuntary hospitalization for psychiatric care or treatment as provided in this section, psychiatric medication may be involuntarily administered only after following the administrative procedures provided in § 549.46 of this subpart.

§ 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) 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 §§ 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, § 549.46(a) of this subpart does not apply to the involuntary administration of psychiatric medication for the sole purpose of restoring a person's competency to stand trial. Only a Federal court of competent jurisdiction may order the involuntary administration of psychiatric medication for the sole purpose of restoring a person's competency to stand trial.