Section 460.08 - Transfer Board Process(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: 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; and4. The reasons for a minority vote, if there was one; and5. 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; orb. 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.