103 Mass. Reg. 423.09

Current through Register 1521, May 10, 2024

Section 423.09 - Restrictive Housing Reviews

The fact that an inmate is lesbian, gay, bisexual, transgender, queer or intersex or has a gender identity or expression or sexual orientation uncommon in general population shall not be grounds for placement in Restrictive Housing.

A pregnant inmate shall not be placed in Restrictive Housing.

In accordance with 103 DOC 422.05: Transfer to Awaiting Action Status, an inmate who is classified to a Department protective custody unit/Special Housing Unit may be placed in Restrictive Housing for reasons unrelated to protective custody needs for a period that shall not exceed 45 days, unless the Commissioner personally approves a further period or periods of not more than 15 days. In no event shall the total amount of time on Restrictive Housing status for such inmate exceed 90 days.

An inmate with an anticipated release date (release from the custody of the Department) of less than 120 days shall not be held in Restrictive Housing unless:

(a) the placement in Restrictive Housing is limited to not more than five days; or

(b) the inmate poses a substantial and immediate threat.

When an inmate in Restrictive Housing is expected to be released to the community within 40 days, any continued retention of the inmate in Restrictive Housing must be authorized by the Deputy Commissioner of Prisons or designee. When the inmate is released to the community directly from Restrictive Housing, the release shall be documented in an incident report indicating the approving authority for the continued placement in Restrictive Housing, the detailed release plan, and the required notifications provided in accordance with 103 DOC 493: Reentry Policy, 103 DOC 407: Victim Service Unit, and 103 DOC 404: Inmate Release Policy. The requirements of this paragraph do not apply to immediate court-ordered releases.

(1)All Inmates in Restrictive Housing. During normal business hours, the Shift Commander may order the immediate removal of an inmate from general population to Restrictive Housing. This action will be approved, denied, or modified within 24 hours by the Superintendent or designee. During non-business hours, the Shift Commander may order the removal of an inmate from general population to Restrictive Housing and the institution duty officer shall be the reviewing authority.

(a) Once an inmate is placed in Restrictive Housing, the inmate's status shall be reviewed by the Placement Review Committee every Monday, Wednesday and Friday. At each Placement Review, the Placement Review Committee shall determine whether:

1. the inmate's placement in Restrictive Housing is reasonably expected to last more than 60 days;

2. continued placement in Restrictive Housing is appropriate;

3. transfer to a Secure Adjustment Unit is appropriate; or

4. release from Restrictive Housing is appropriate.

(b) At each Placement Review, the Placement Review Committee shall review the reason(s) for placement, threat to institutional security, pending disciplinary issues, disciplinary sanctions, classification issues, enemy situations, mental health issues, attitude toward authority, willingness and ability to live with others, and any other pertinent information. These reviews shall be documented in the Restrictive Housing review screen in IMS.

(c) After each Placement Review, the inmate shall be retained in Restrictive Housing only if the Superintendent or designee determines that the inmate poses an unacceptable risk:

1. to the safety of others;

2. of damage or destruction or property; or

3. to the operation of a correctional facility. In the case of inmates held in Restrictive Housing for personal safety needs, a certification by the Commissioner or designee shall be completed after each Placement Review.

(d) Upon a determination by the Placement Review Committee that the inmate's placement in Restrictive Housing is reasonably expected to last more than 60 days, within 15 days of such determination:

1. the inmate shall be served with written behavior standards and program participation goals that will increase the inmate's chances of a less restrictive placement upon next Placement Review; and

2. the inmate shall thereafter receive the reviews set forth in 103 CMR 423.09(3). An inmate's failure to meet some or all of the standards and goals shall not preclude an inmate's release from Restrictive Housing.

(e) The inmate shall receive periodic verbal notification as to his or her status or change in status. Said periodic verbal notification may be provided during rounds by the CPO or Deputy Superintendent of Reentry or designee.

(2)Inmates in Restrictive Housing Less than 30 Days.

(a)SMI Inmates. An inmate shall not be held in Restrictive Housing if the inmate has been determined to have a serious mental illness (SMI) or a finding has been made by a Qualified Mental Health Professional that Restrictive Housing is clinically contraindicated unless, no later than 72 hours after the Restrictive Housing placement or finding, the Commissioner or a designee certifies in writing:

1. the reason why the inmate may not be safely held in the general population;

2. that there is no available placement in an STU or SAU;

3. that efforts are being undertaken to find appropriate housing and the status of the efforts; and

4. the anticipated time frame for resolution.

A copy of the written certification shall be provided to the inmate. Such inmates shall be reviewed thereafter by the Placement Review Committee at least every Monday, Wednesday and Friday.

(b)Inmates with Safety Needs. Upon verification that an inmate requires separation from general population to protect the inmate from harm by others, the inmate shall not be placed in Restrictive Housing, but shall be placed in a housing unit that provides approximately the same conditions, privileges, amenities and opportunities as in general population; provided however, that the inmate may be placed in Restrictive Housing for no more than 72 hours while suitable housing is located. An inmate shall not be held in Restrictive Housing to protect the inmate from harm by others for more than 72 hours, unless the Commissioner or a designee certifies in writing:

1. the reason why the inmate may not be safely held in the general population;

2. that there is no available placement in a unit comparable to general population;

3. that efforts are being undertaken to find appropriate housing and the status of the efforts; and

4. the anticipated time frame for resolution.

A copy of the written certification shall be provided to the inmate.

Such inmates shall be reviewed thereafter by the Placement Review Committee every Monday, Wednesday and Friday. The written certification by the Commissioner or designee, as described above, shall be completed after each Placement Review.

(c)Inmates Awaiting Adjudication of Disciplinary Charges. Inmates in Restrictive Housing who are awaiting the adjudication of disciplinary charges shall be reviewed by the Placement Review Committee every Monday, Wednesday and Friday.

(d)Inmates in Restrictive Housing for Other Reasons. Inmates e.g., pending investigation, pending classification, pending transfer, or refusing housing placement.

Inmates in Restrictive Housing for any other reason shall be reviewed by the Placement Review Committee every Monday, Wednesday and Friday.

(3)Inmates in Restrictive Housing 30 Days or More.

(a)30-Day CPO Review. Every inmate in Restrictive Housing for 30 days or more shall be provided with the following review within 30 days of his or her Restrictive Housing placement. Each such inmate shall be provided:

1. 48 hours written notice prior to the review;

2. the opportunity to participate in the review in person;

3. a written statement as to the evidence relied on and the reasons for the placement decision if no placement change is ordered; and

4. written behavior standards and program participation goals that will increase the inmate's chances of a less restrictive placement upon the next Placement Review if no placement change was ordered.

Notice: The CPO shall provide the inmate with at least 48 hours advance written notice of the review. The notice shall state the basis upon which the inmate is housed in Restrictive Housing. The notice shall also state the nature of the threat requiring the Restrictive Housing placement. Notice shall be documented and may be waived by the inmate in writing.

CPO Review: The CPO shall conduct the review. The inmate shall be offered the opportunity to participate in the review in person. The review shall not be conducted at cell front. The inmate's failure to appear at the scheduled review shall be deemed a refusal to appear but shall not be held against the inmate. The inmate's refusal to attend the review shall be documented in IMS.

At the review, the inmate may offer a verbal and/or written statement and/or submit documentation to contest the rationale for his or her placement in Restrictive Housing. The inmate shall not be entitled to call witnesses or to representation by counsel. At the conclusion of the review, the CPO shall inform the inmate orally of the recommendation as to whether there is a need for the inmate's continued placement in Restrictive Housing.

Recommendation: Within two calendar days of the review, the CPO shall enter a recommendation in IMS as to whether the inmate should continue to be housed in Restrictive Housing. A copy of this recommendation shall be served on the inmate. The recommendation shall include, but not be limited to, a description of the underlying basis that led to the Restrictive Housing placement (e.g., pending disciplinary hearing), and a determination whether the inmate's return to general population would pose an unacceptable risk to life, property, staff or other inmates, or to the security or orderly running of the institution. Unless an investigation or safety or security concerns could be compromised, the written recommendation shall generally describe the factual basis or bases of the recommendation, including a brief description of any evidence relied upon by the CPO. The written recommendation shall also document whether the inmate made or submitted any statement or documents, and, when appropriate, that any such statement and/or documents were considered.

Standards/Goals: Within two calendar days of the review, the inmate shall also be served with written notice of the behavioral standards and program participation goals that will increase the inmate's chances of a less restrictive placement upon next Placement Review. The written notice shall include a list of the specific programs being recommended for the inmate while in Restrictive Housing at that facility.

Inmate Appeal: If the inmate disagrees with the written recommendation of the CPO, the inmate may submit a written appeal within five business days of service of the written recommendation.

Final Decision: Within five calendar days after the close of the appeal period, i.e., the last date upon which the inmate would be entitled to submit an appeal, the Superintendent or designee shall render the final decision in IMS and provide the inmate with such decision in writing. If it is determined that the inmate shall remain in Restrictive Housing, the written decision shall explain the reasons for the inmate's continued placement/status including, but not limited to, a description of the underlying basis that led to the Restrictive Housing placement (e.g., pending disciplinary hearing) and an explanation why the inmate's return to general population would pose an unacceptable risk to life, property, staff or other inmates, or to the security or orderly running of the institution.

Assistance: An inmate, either verbally or in writing, may seek an accommodation pursuant to 103 DOC 408: Reasonable Accommodations for Inmates, for the review and appeal. It shall be the inmate's responsibility to request such assistance within a reasonable time prior to the scheduled hearing or appeal. Whenever said request is made, the Institution's Americans with Disabilities Act (ADA) Coordinator shall determine what accommodations, if any, are reasonable pursuant to the procedures set forth in 103 DOC 408.

(b)Placement Reviews.

1.SMI Inmates. An inmate diagnosed with an SMI shall not be held in Restrictive Housing for more than 30 days unless the Placement Review Committee determines that the inmate poses an immediate and present danger to others or the safety of the institution.

Such inmates who are diagnosed with an SMI shall continue to be reviewed by the Placement Review Committee every Monday, Wednesday and Friday. At each Placement Review, the inmate shall be:

a. provided with 24 hours written notice prior to each Placement Review;

b. provided with the opportunity to participate in each review in writing;

c. provided with a written statement as to the evidence relied on and the reasons for the placement decision if no placement change is ordered; and

d. advised, in writing, as to behavior standards and program participation goals that will increase the inmate's chances of a less restrictive placement upon next Placement Review if no placement change was ordered.

These requirements apply regardless of the underlying reason for the Restrictive Housing placement (e.g., if an inmate diagnosed with an SMI is awaiting adjudication of disciplinary charges, the aforementioned additional requirements shall be afforded for each Monday, Wednesday and Friday review, not for each 15-day review as would otherwise be required if the inmate were not SMI).

For each Placement Review scheduled to occur every 90 days after placement, the procedures set forth in 103 CMR 423.09(3)(c) shall be followed.

2.Inmates with Safety Needs. Upon verification that an inmate requires separation from general population to protect the inmate from harm by others, the inmate shall not be placed in Restrictive Housing, but shall be placed in a housing unit that provides approximately the same conditions, privileges, amenities and opportunities as in general population; provided, however, that the inmate may be placed in Restrictive Housing for no more than 72 hours while suitable housing is located. Such inmate shall not be held in Restrictive Housing to protect the inmate from harm by others for more than 72 hours unless the Commissioner or a designee certifies in writing:

a. the reason why the inmate may not be safely held in the general population;

b. that there is no available placement in a unit comparable to general population;

c. that efforts are being undertaken to find appropriate housing and the status of the efforts; and

d. the anticipated time frame for resolution.

A copy of the written certification shall be provided to the inmate.

Such inmates shall be reviewed thereafter by the Placement Review Committee every Monday, Wednesday and Friday. The written certification by the Commissioner or designee, as described in 103 CMR 423.09(3)(b)2.a. through d., shall be completed after each Placement Review.

Except as set forth in 103 CMR 423.09(3)(c), setting forth Placement Reviews that must occur within every 90 days of placement, for each Placement Review the inmate shall be:

i. provided with 24 hours written notice prior to each Placement Review;

ii. provided the opportunity to participate in each review in writing;

iii. provided a written statement as to the evidence relied on and the reasons for the placement decision if no placement change is ordered; and

iv. advised, in writing, as to behavior standards and program participation goals that will increase the inmate's chances of a less restrictive placement upon next Placement Review if no placement change was ordered.

Placement Reviews as provided by 103 CMR 423.09(3)(b)2.d.i. through iv. shall not be conducted upon the receipt of a written waiver from the inmate.

3.Inmates Awaiting Adjudication of Disciplinary Charges. Inmates in Restrictive Housing who are awaiting the adjudication of disciplinary charges shall be reviewed by the Placement Review Committee every Monday, Wednesday and Friday.

Except as set forth in 103 CMR 423.09(3)(c), setting forth Placement Reviews that must occur within every 90 days of placement, for the Placement Reviews held every 15 days, the inmate shall be:

a. provided with 24 hours written notice prior to the Placement Review;

b. provided the opportunity to participate in the Placement Review in writing;

c. provided a written statement as to the evidence relied on and the reasons for the placement decision if no placement change is ordered; and

d. advised, in writing, as to behavior standards and program participation goals that will increase the inmate's chances of a less restrictive placement upon next Placement Review if no placement change was ordered.

Placement Reviews as provided by 103 CMR 423.09(3)(b)3.a. through d. shall not be conducted upon the receipt of a written waiver from the inmate.

4.Inmates in Restrictive Housing for Other Reasons. Inmates e.g., pending investigation, pending classification, pending transfer, or refusing housing placement. Inmates in Restrictive Housing for any other reason not set forth in 103 CMR 423.09(2)(a) through (c) shall be reviewed by the Placement Review Committee every Monday, Wednesday and Friday.

In addition, for each 90-day Placement Review, the procedures set forth in 103 CMR 423.09(3)(c) shall be followed.

(c) 90-day Placement Review. Within 90 days of an inmate's initial placement in Restrictive Housing and within every 90 days thereafter, the inmate shall be reviewed as follows by a three person Placement Review Committee, consisting of one member of security staff, one member of the programming staff, and one member of the mental health staff. For such reviews, the inmate shall be:

1. provided with 48 hours written notice prior to the Placement Review;

2. provided the opportunity to participate in the Placement Review in person;

3. provided with a written statement as to the evidence relied on and the reasons for the placement decision if no placement change is ordered; and

4. advised, in writing, as to behavior standards and program participation goals that will increase the inmate's chances of a less restrictive placement upon next Placement Review if no placement change was ordered.

Notice: The Placement Review Committee shall provide the inmate with at least 48 hours advance written notice of the Placement Review. The notice shall state the basis upon which the inmate is housed in Restrictive Housing. The notice shall also state the nature of the threat requiring the Restrictive Housing placement. Notice shall be documented and may be waived by the inmate in writing.

Placement Review: The Placement Review Committee shall conduct a Placement Review. The inmate shall be offered the opportunity to participate in the review in person. The Placement Review shall not be conducted at cell front. The inmate's failure to appear at the scheduled Placement Review shall be deemed a refusal to appear but shall not be held against the inmate. The inmate's refusal to attend the Placement Review shall be documented in IMS.

At the Placement Review, the inmate may offer a verbal and/or written statement and/or submit documentation to contest the rationale for his or her placement in Restrictive Housing. The inmate shall not be entitled to call witnesses or to representation by counsel. At the conclusion of the Placement Review, the Placement Review Committee shall inform the inmate orally of the recommendation as to whether there is a need for the inmate's continued placement in Restrictive Housing.

At any Placement Review conducted 180 days after initial placement, and every 180 days thereafter, the inmate may request that the Placement Review be recorded.

Recommendation: Within two calendar days of the Placement Review, the Placement Review Committee shall enter a recommendation in IMS as to whether the inmate should continue to be housed in Restrictive Housing. A copy of this recommendation shall be served on the inmate. The recommendation shall include, but not be limited to, a description of the underlying basis that led to the Restrictive Housing placement (e.g., pending disciplinary hearing), and a determination whether the inmate's return to general population would pose an unacceptable risk to life, property, staff or other inmates, or to the security or orderly running of the institution. Unless an investigation or safety or security concerns could be compromised, the written recommendation shall generally describe the factual basis or bases of the recommendation, including a brief description of any evidence relied upon by the Placement Review Committee. The written recommendation shall also document whether the inmate made or submitted any statement or documents, and, when appropriate, that any such statement and/or documents were considered.

Standards/Goals: Within two calendar days of the Placement Review, the inmate shall also be served with written notice of the behavioral standards and program participation goals that will increase the inmate's chances of a less restrictive placement upon next Placement Review. The written notice shall include a list of the specific programs being recommended for the inmate while in Restrictive Housing at that facility.

Inmate Appeal: If the inmate disagrees with the written recommendation of the Placement Review Committee, the inmate may submit a written appeal within five business days of service of the written recommendation.

Final Decision: Within five calendar days after the close of the appeal period, i.e., the last date upon which the inmate would be entitled to submit an appeal, the Superintendent or designee shall render the final decision in IMS and provide the inmate with such decision in writing. If it is determined that the inmate shall remain in Restrictive Housing, the written decision shall explain the reasons for the inmate's continued placement/status including, but not limited to, a description of the underlying basis that led to the Restrictive Housing placement (e.g., pending disciplinary hearing) and an explanation why the inmate's return to general population would pose an unacceptable risk to life, property, staff or other inmates, or to the security or orderly running of the institution.

Assistance: An inmate, either verbally or in writing, may seek an accommodation pursuant to 103 DOC 408: Reasonable Accommodations for Inmates, for the hearing and appeal. It shall be the inmate's responsibility to request such assistance within a reasonable time prior to the scheduled hearing or appeal. Whenever said request is made, the Institution's Americans with Disabilities Act (ADA) Coordinator shall determine what accommodations, if any, are reasonable pursuant to the procedures set forth in 103 DOC 408: Reasonable Accommodations for Inmates.

103 CMR 423.09

Amended by Mass Register Issue 1387, eff. 3/22/2019.