Mont. Admin. R. tit. 20 | Mont. Admin. R. Title 20 — Corrections

Chapter 20.1 Organizational Rule

Subchapter 20.1.1 Organizational Rule

Mont. Admin. R. 20.1.101 Organization of the Department

(1) The history, organization, and functions of the Department of Corrections and its attached board are described in this rule.

(a) History . The Department of Institutions was established pursuant to the Executive Reorganization Act of 1971 by order of the Governor on December 19, 1973. The Department of Institutions was renamed the Department of Corrections and Human Services by the 1991 Legislature. The Department of Corrections and Human Services was renamed the Department of Corrections, and extensively reorganized by the 1995 Legislature.

(b) Organization of the department .

(i) Director . The director of the department is appointed by the Governor with the approval of the Montana Senate, and is responsible for the overall policy development, management direction, planning, and administration of the department's major program responsibilities. The Director's Office is comprised of:

(A) the deputy director;

(B) the chief financial officer;

(D) the American Indian liaison; and

(E) the Communications Bureau.

(ii) Divisions and bureaus . Organized under the Director's Office are three divisions which provide technical advice and assistance to the director and deputy director. The divisions and bureaus under them are:

(A) Central Services Division:

(I) Research, Analytics, and Planning Bureau;

(II) Human Resources Bureau;

(III) Information Technology Bureau;

(IV) Project Management Bureau;

(V) Operations Bureau;

(VI) Records Management Bureau.

(B) Public Safety Division:

(I) Montana State Prison Bureau;

(II) Montana Women's Prison Bureau;

(III) Pine Hills Correctional Facility Bureau;

(IV) Secure Contract Facilities Bureau;

(V) Investigations Bureau;

(VI) Probation and Parole Bureau;

(VII) Public Safety Support Services Bureau.

(I) Montana Correctional Enterprises Bureau;

(II) Community Corrections Facilities and Programs Bureau;

(III) Health Services Bureau;

(IV) Evidence Based Programming and Practices Quality Assurance Bureau;

(V) Victim Services Bureau;

(VI) Education Bureau.

(c) Board of Pardons and Parole . The Board of Pardons and Parole is allocated to the department for administrative purposes only.

(i) The board is a quasi-judicial body that consists of five members appointed by the Governor. The board is responsible for the oversight of Montana's inmate parole and furlough programs. In addition, the board reviews requests for executive clemency and makes recommendations to the Governor concerning those requests. The board has rulemaking authority as stated in Title 46, chapter 23, MCA, and adopts administrative rules separately from the Department of Corrections.

(2) Functions of the department divisions .

(a) Central Services Division . The division is responsible for the operational and planning functions of the department, including budgeting, financial operations, information technology, human resources, research, planning and analysis, and project management.

(b) Public Safety Division . The division is responsible for oversight of the prisons, Pine Hills Correctional Facility, and secure contract facilities, probation and parole, and public safety support services.

(c) Rehabilitation and Programs Division . The division is responsible for oversight of offender rehabilitation, education, and training; facility-based and community-based programming services; in-custody offender health care services; evidence-based offender programming and quality assurance; and victim services.

(3) Information or Submissions . Information regarding the department may be found at the department's web site at https:// cor.mt.gov . Specific inquiries regarding the functions of each division may be addressed to the head of that division or to the director. All requests for hearings, declaratory rulings, and for participation in rulemaking may be addressed to the director unless the notice in the Montana Administrative Register makes specific provisions for submissions.

(4) Personnel Roster . Addresses of the director, each division, and attached board are as follows:

Director's Office, Department of Corrections, P.O. Box 201301, Helena, MT 59620-1301.

Central Services Division, P.O. Box 201301, Helena, MT 59620-1301.

Public Safety Division, P.O. Box 201301, Helena, MT 59620-1301.

Rehabilitation and Programs Division, P.O. Box 201301, Helena, MT 59620-1301.

(5) Chart of Agency Organization . The organizational chart of the Department of Corrections is attached on the following page and is incorporated into this rule.

History

Authorizing statute(s): 2-4-201, MCA
Implementing statute(s): 2-4-201, MCA
History: NEW, Eff. 12/4/76; AMD, Eff. 10/19/78; AMD, Eff. 7/16/79; AMD, Eff. 6/30/85; AMD, Eff. 9/30/85; AMD, Eff. 9/30/87; AMD, Eff. 10/1/90; AMD, Eff. 7/1/91; AMD, Eff. 6/30/96; AMD, Eff. 10/31/01; AMD, Eff. 9/30/04; AMD, Eff. 9/30/08; AMD, Eff. 9/30/15; AMD, Eff. 11/1/21; AMD, 2/12/24.

Chapter 20.2 Overall Department Rules

Subchapter 20.2.1 Model Procedural Rules

Mont. Admin. R. 20.2.101 Model Procedural Rules

(1) The department of corrections has herein adopted and incorporated the attorney general's model procedural rules as published in ARM Title 1, chapter 3. As the department of corrections is exempt from the Montana Administrative Procedure Act in the areas of the supervision and administration of any penal institution with regard to the institutional supervision, custody, control, care and treatment of youths or prisoners, none of the above cited model rules shall apply to the above listed institutional functions. Modifications to the model rules for contested cases are set forth in sub-chapter 2 of this chapter.

History

Authorizing statute(s): 2-4-101, and 2-4-201, MCA
Implementing statute(s): 2-4-101, 2-4-201, and 2-4-202, MCA
History: NEW, Eff. 1/2/77; AMD, 1978 MAR p. 1362, Eff. 9/15/78; AMD, 2000 MAR p. 74, Eff. 1/14/00.

Subchapter 20.2.2 Procedural Rules Required by Statute

Mont. Admin. R. 20.2.201 Contested Cases, General Authority

(1) Authority for the adoption of these rules is given to the department under 53-1-203 , MCA. All rules adopted for fair hearings are in accordance with the following:

(a) section 46-23-421 , MCA,

(b) section 46-23-1023 , MCA.

History

Authorizing statute(s): 2-4-201, 53-1-203, MCA
Implementing statute(s): 46-23-421, 46-23-1023, 53-30-229, MCA
History: NEW, Eff. 1/2/77; AMD, 1988 MAR p. 387, Eff. 2/26/88.

Mont. Admin. R. 20.2.202 On-Site Hearing for Aftercare Agreement Violation, Initial Investigation and Informal Settlement

History

Authorizing statute(s): 2-4-201, MCA
Implementing statute(s): 53-30-229(1), MCA
History: NEW, Eff. 1/2/77; TRANS, to Department of Family Services, Ch. 609, L. 1987, Eff. 7/1/87.

Mont. Admin. R. 20.2.203 On-Site Hearing for Aftercare Agreement Violation, Formal Hearing Procedure

History

Authorizing statute(s): 2-4-201, MCA
Implementing statute(s): 53-30-226, MCA
History: NEW, Eff. 1/2/77; TRANS, to Department of Family Services, Ch. 609, L. 1987, Eff. 7/1/87.

Mont. Admin. R. 20.2.204 Aftercare Violation Hearing - Detention

History

Authorizing statute(s): 2-4-201, MCA
Implementing statute(s): 53-30-229(1), MCA
History: NEW, Eff. 1/2/77; TRANS, to Department of Family Services, Ch. 609, L. 1987, Eff. 7/1/87.

Mont. Admin. R. 20.2.205 Aftercare Violation Hearing - Hearing Procedures

History

Authorizing statute(s): 2-4-201, MCA
Implementing statute(s): 53-30-229, MCA
History: NEW, Eff. 1/2/77; TRANS, to Department of Family Services, Ch. 609, L. 1987, Eff. 7/1/87.

Mont. Admin. R. 20.2.206 Waiver of Right to Hearing

History

Authorizing statute(s): 2-4-201, MCA
Implementing statute(s): 53-30-229, MCA
History: NEW, Eff. 1/2/77; TRANS, to Department of Family Services, Ch. 609, L. 1987, Eff. 7/1/87.

Mont. Admin. R. 20.2.207 Failure to Appear for Hearing

History

Authorizing statute(s): 2-4-201, MCA
Implementing statute(s): 53-30-229, MCA
History: NEW, Eff. 1/2/77; TRANS, to Department of Family Services, Ch. 609, L. 1987, Eff. 7/1/87.

Chapter 20.4 Management of Offenders

Subchapter 20.4.1 General Provisions

Mont. Admin. R. 20.4.101 Facilities Exempt from Geographic Restrictions Applicable to High-Risk Sexual Offenders

(1) The prisons, prison infirmaries, youth facilities, prerelease centers, substance use treatment facilities, and assessment and sanction centers at the following physical addresses, operated by the department or under contract to the department, were in operation before October 1, 2015. Offenders who are otherwise subject to the geographic restrictions in 45-5-513, MCA, are exempt from the geographic restrictions while incarcerated or in custody at the following addresses pursuant to court order, Board of Pardons and Parole order, or department placement:

(a) 400 Conley Lake Road, Deer Lodge, MT 59722;

(b) 701 South 27th Street, Billings, MT 59101;

(d) 3800 Ulm North Frontage Road, Great Falls, MT 59404;

(e) 440 Colorado Blvd., Glendive, MT 59330;

(f) 50 Crossroads Drive, Shelby, MT 59474;

(g) 2 Riverside Road, Boulder, MT 59632;

(h) 4 N. Haynes Ave., Miles City, MT 59301;

(i) 3109 1st Ave. North, Billings, MT 59101;

(j) 66 W. Broadway, Butte, MT 59701;

(k) 62 W. Broadway, Butte, MT 59701;

(l) 675 S. 16th Ave., Bozeman, MT 59715;

(m) 1019 15th Street North, Great Falls, MT 59401;

(n) 805 Colleen Street, Helena, MT 59601;

(o) 2350 Mullan Road, Missoula, MT 59808;

(p) 1001 South 27th St., Billings, MT 59101;

(q) 2340 Mullan Road, Missoula, MT 59808;

(r) 801 Highway 48, Anaconda, MT 59711;

(s) 111 West Broadway, Butte, MT 59701;

(t) 725 Orofino Way, Warm Springs, MT 59756;

(u) 1 Riverside Rd., Boulder, MT 59632;

(v) 111 Skyline Dr., Lewistown, MT 59457; and

(w) 700 Little Street, Glendive, MT 59330.

(2) Inclusion of a program or facility's address in this rule does not necessarily signify that high-risk sexual offenders are confined or treated at those locations or that they will be confined or treated at those locations in the future. The list serves as an inventory and management tool for the department to assist it in making appropriate placements of offenders while maintaining flexibility to use facilities to maximum efficiency within the parameters set by the legislature.

(3) No new or additional facility or program operated by the department or under contract to the department for the care, custody, and treatment of offenders under department jurisdiction has been constructed, designated, or commenced operations since October 1, 2015.

(4) If the department proposes to exempt offenders otherwise subject to the geographic restrictions in 45-5-513, MCA, while the offenders are in residence at a program or facility that commences operations at an address not listed in this rule after October 1, 2015, the department shall first conduct a public hearing in the community where the facility is located to receive oral or written public comments on the proposed exemption. Notice of the date, time, place, and purpose of the hearing shall be mailed to local and county governing bodies and law enforcement agencies not less than 20 days before the hearing. In addition, not less than 20 days before the hearing, the department shall cause notice of the hearing date, time, place, and purpose to be published in a newspaper of general circulation which serves the area where the program or facility will operate.

(5) The department also acknowledges that offenders under its supervision who are otherwise subject to the geographic restrictions in 45-5-513, MCA, may be housed at a facility operated by or under contract to the Department of Public Health and Human Services that was in operation prior to October 1, 2015.

History

Authorizing statute(s): 45-5-513, MCA
Implementing statute(s): 45-5-513, MCA
History: NEW, 2018 MAR p. 1724, Eff. 8/25/18.

Chapter 20.7 Community Corrections Division

Subchapter 20.7.2 Resident Reimbursement - Community Correctional Centers

Mont. Admin. R. 20.7.201 Resident Reimbursement

(1) Upon arrival at the community correctional program, each resident will pay a minimum of $7.00 for each day they reside at the program. In the event of a situation which causes a resident's absence from the program (i.e., hospitalization, court order, AWOL, etc.) all costs will be suspended after five consecutive days of absence; until such time as the resident may be reinstated.

(2) Those residents employed on a full time basis will contribute 25% of their earnings, after federal and state taxes and FICA, while in the program - less the following exemptions:

(a) court ordered restitution

(b) court ordered fines

(d) medical, dental or pharmaceutical costs paid by the resident.

(3) Residents using the above exemptions will still be required to pay the $7.00/day minimum.

History

Authorizing statute(s): 53-1-501, MCA
Implementing statute(s): 53-1-501, MCA
History: NEW, 1982 MAR p. 701, Eff. 4/16/82; AMD, 1992 MAR p. 2286, Eff. 10/16/92.

Mont. Admin. R. 20.7.202 Determination of Ability to Pay

(1) The director of the department of corrections may delegate the program managers of the respective centers to determine their residents' ability to pay and submit monthly reports (certification) of their residents' financial status.

(a) Reports shall be submitted by the tenth working day of the month following.

(b) This report shall include the number of days per month the resident has been in the program; gross income during the month; and cost of reimbursement due based on the criteria in ARM 20.7.201(2) .

(c) Residents of state-operated centers shall submit payment by money order payable to the "Montana State Treasurer" and mail to the department of corrections, corrections division. These funds will be deposited in the general fund.

History

Authorizing statute(s): 53-1-501, MCA
Implementing statute(s): 53-1-501, MCA
History: NEW, 1982 MAR p. 701, Eff. 4/16/82; AMD, 1992 MAR p. 2286, Eff. 10/16/92.

Mont. Admin. R. 20.7.203 Daily Rate - Exception

(1) The program manager of the state-operated centers may request that the payment of board and room be waived based on the ability to pay should a resident become enrolled in a full time vocational, or educational or treatment program or in the event the resident is unable to pay based upon the reasonable discretion of the program manager. Payment will be charged for each day the resident is in the center until the actual date of attendance at the school, training or treatment program.

(a) Residents attending part time educational or training programs will be subject to pay a minimum of $7.00 per day as set forth in ARM 20.7.201(1) .

History

Authorizing statute(s): 53-1-501, MCA
Implementing statute(s): 53-1-501, MCA
History: NEW, 1982 MAR p. 701, Eff. 4/16/82; AMD, 1992 MAR p. 2286, Eff. 10/16/92.

Mont. Admin. R. 20.7.204 Personal Expenses

(1) All residents shall pay for their own clothing, personal toiletry articles, any leisure time activity costs and medical and dental expenses. In addition, they shall be responsible for damages to the center or damages to items issued on their behalf.

(2) A resident who is unable to pay any personal expenses under this rule may request a waiver from the program manager and the department.

History

Authorizing statute(s): 53-1-501, MCA
Implementing statute(s): 53-1-501, MCA
History: NEW, 1982 MAR p. 701, Eff. 4/16/82.

Subchapter 20.7.3 Sex Offender Evaluation and Treatment Provider Guidelines and Qualifications

Mont. Admin. R. 20.7.301 Sex Offender Evaluation and Treatment Provider Guidelines and Qualifications

(1) The purpose of sex offender evaluation and treatment provider guidelines and qualifications is to ensure that evaluation and treatment plans which are utilized in pre-sentence investigations are conducted by qualified individuals who are specially trained in sex offender treatment needs.

History

Authorizing statute(s): Sec. 53-1-203 MCA
Implementing statute(s): Sec. 46-18-111 MCA
History: NEW, 1995 MAR p. 284, Eff. 2/24/95.

Mont. Admin. R. 20.7.302 Definitions

As used in this sub-chapter, the following definitions apply:

(1) "District court" is the district unit of the Montana judicial system, presided over by district court judges.

(2) "Probation officer" is an employee of the probation and parole bureau of the department of corrections and human services who supervises clients placed under department jurisdiction by the district court or the board of pardons. Probation officers are responsible for preparing and presenting pre-sentence reports for the district court.

(3) "Sex offender" is an individual convicted of a felony offense under 45-5-502(3) , 45-5-503, 45-5-505, 45-5-507, MCA (unless the act occurred between two consenting persons 16 years of age or older) , or 45-5-625, MCA.

History

Authorizing statute(s): Sec. 53-1-203 MCA
Implementing statute(s): Sec. 46-18-111 MCA
History: NEW, 1995 MAR p. 284, Eff. 2/24/95.

Mont. Admin. R. 20.7.303 Guidelines

(1) A person is deemed qualified to complete an evaluation and recommendation of treatment for sex offenders under department of corrections and human services guidelines when the treatment provider either meets the qualifications set forth herein, or works under the direct supervision of a qualified treatment provider.

History

Authorizing statute(s): Sec. 53-1-203 MCA
Implementing statute(s): Sec. 46-18-111 MCA
History: NEW, 1995 MAR p. 284, Eff. 2/24/95.

Mont. Admin. R. 20.7.304 Qualifications

(1) The individual must have received specialized documentable training in evaluation and treatment approaches from a nationally recognized program or provider specializing in working with sex offenders;

(2) Received formal education in the area of normal and abnormal sexual functioning;

(3) Received at least six hours of documentable annual continuing education in sex offender therapy or human sexuality;

(4) Spent the first year of their specialized clinical practice having at least monthly consultation and peer reviews of cases with a specialized sex offender clinician who practices in accordance with established national standards; and

(5) Possess one of the following combinations of degree and experience:

(a) Relevant bachelor's degree and 4,000 hours of specific sex offender treatment experience;

(b) Relevant master's degree, licensing and 2,000 hours of specific sex offender treatment experience;

(d) Medical degree and 2,000 hours of specific sex offender treatment experience; and

(e) Is a full or clinical member of at least one relevant national organization which has ethics of practice to which they adhere.

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 46-18-111, MCA
History: NEW, 1995 MAR p. 284, Eff. 2/24/95.

Subchapter 20.7.4 Satellite-Based Monitoring

Mont. Admin. R. 20.7.401 Definitions

For the purposes of this chapter, these definitions apply:

(1) "Board" means the Board of Pardons and Parole as authorized in 2-15-2302 and 46-23-104, MCA.

(2) "Conditional Release" means the placement by the department of an offender into the community under the jurisdiction of the department and subject to the department's rules.

(3) "Department" means Department of Corrections as authorized in 2-15-230, MCA.

(4) "Level 3 sex offender" means an offender who a judge has designated as having a high probability of committing a repeat sexual offense.

(5) "Offender" means a person convicted and sentenced for a felony offense.

(6) "Parole" means the release from incarceration by the Board of Pardons and Parole prior to the completion of an offender's sentence of incarceration.

(7) "Probation" means the district court's release of an offender into the community, subject to supervision by the department.

(8) "Sexual offender" means a person who has been convicted of or, in youth court, found to have committed or been adjudicated for a sexual offense as defined in 46-23-502(9), MCA.

(9) "Zone" means an area where the offender is supposed to be located or an area where the offender is prohibited from being located.

History

Authorizing statute(s): 46-23-1010, MCA
Implementing statute(s): 46-23-1010, MCA
History: NEW, 2011 MAR p. 236, Eff. 2/25/11.

Mont. Admin. R. 20.7.402 Satellite-Based Monitoring Program

(1) The department shall establish and administer a program for the continuous satellite-based monitoring of sexual and other offenders.

(2) All offenders supervised by the department are eligible to participate in the satellite-based monitoring program, including offenders ordered by the court and the board to participate in the program.

(3) An offender convicted under 45-5-503(4), 45-5-507(5), 45-5-601(3), 45-5-602(3), or 45-5-603(2)(c), MCA and released from imprisonment must participate in the program.

(4) An offender designated a level 3 sex offender who is on probation, parole, or conditional release must participate in the program.

(5) The department may establish procedures for the day-to-day operation of the program, which will include, at a minimum, the following:

(a) a time-correlated passive system of tracking of the offender's geographic location at least every five minutes using a global positioning system based on satellite and other location-tracking technology;

(b) reporting once a day of the offender's locations the previous day; and

(6) The satellite-based monitoring program shall share offender location data with local and state law enforcement officials upon request.

(7) An offender in the satellite-based monitoring program shall pay a monthly fee to the department for his/her participation in the program. The fee the department assesses shall include the actual monthly cost of equipment and services needed to operate the program and a fee to supervise the offender on the program. The total amount of the fee may not exceed $4,000.00 per year.

(8) The department shall contract with a single vendor for the equipment and services needed to monitor offenders in the program. The contract also may provide for the collection and disposition of the monthly fees provided for in (7) including the reasonable cost of collection of the fee.

History

Authorizing statute(s): 46-23-1010, MCA
Implementing statute(s): 45-5-503, 45-5-507, 45-5-601, 45-5-602, 45-5-603, 45-5-625, 46-18-206, 46-18-207, 46-23-1010, 46-23-1031, MCA
History: NEW, 2011 MAR p. 236, Eff. 2/25/11.

Subchapter 20.7.5 Siting, Establishment, and Expansion of Prerelease Centers

Mont. Admin. R. 20.7.501 Definitions

For purposes of this chapter, the following definitions apply:

(1) "Department" means the Department of Corrections.

(2) "Prerelease center" means a residential facility for adult offenders located in a community which offers offenders room and board, supervision, counseling, and treatment.

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 53-1-203, MCA
History: NEW, 1998 MAR p. 3114, Eff. 11/20/98; AMD, 2024 MAR p. 1456, Eff. 6/22/24.

Mont. Admin. R. 20.7.502 Determination of Need

(1) Before proceeding with plans to establish a prerelease center, the department must make a written determination that there is a need for a prerelease center in the jurisdiction being considered. The written determination of need must include:

(a) demographic and statistical data on the general and offender population of the jurisdiction; and

(b) the proposed prerelease center's relationship to the correctional needs of the state.

(2) The determination of need must be published on the department's website.

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 53-1-203, MCA
History: NEW, 1998 MAR p. 3114, Eff. 11/20/98; AMD, 2024 MAR p. 1456, Eff. 6/22/24.

Mont. Admin. R. 20.7.503 Determination of Minimum Requirements

(1) The department must determine that within the jurisdiction being considered, there are available to the offenders:

(a) appropriate mental health and substance abuse treatment disorder services;

(b) adequate job opportunities;

(c) opportunities for basic education, high schools equivalency education, technical training, and post secondary education; and

(d) opportunities for volunteer and community service.

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 53-1-203, MCA
History: NEW, 1998 MAR p. 3114, Eff. 11/20/98; AMD, 2024 MAR p. 1456, Eff. 6/22/24.

Mont. Admin. R. 20.7.509 Determination of Public Support

(1) After the department has selected a proposed location for a new prerelease center the department must determine that there is community support for a prerelease center to be located in that location.

(2) The mechanism for determining community support is as follows:

(a) The department must conduct a public hearing held in conformity with Title 2, chapter 3, MCA.

(i) The department must publish notice of the hearing on its website and in a newspaper of general circulation within the proposed jurisdiction at least five business days prior to the date of the hearing.

(ii) The department must also provide notice of the hearing to all interested persons who have expressed to the department an interest concerning department actions and have requested to be placed on the department's list of interested persons. Interested persons can be notified either by emailing or mailing the notice to the interested person. If the hearing notice is mailed, it must be mailed, by regular mail, at least ten business days prior to the date of the hearing. If notice is e-mailed, it must be sent at least five business days prior to the date of the hearing.

(iii) The department must allow comments to be submitted in writing prior to the hearing, and for ten business days after the hearing.

(iv) The hearing must be held in an accessible facility in the jurisdiction in which the proposed prerelease center will be located.

(3) Before a prerelease center can be sited, the governing body of the jurisdiction in which the prelease center will be located must, after conducting its own public hearing, pass a resolution in support of siting a prerelease center at the location selected by the department.

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 53-1-203, MCA
History: NEW, 1998 MAR p. 3114, Eff. 11/20/98; AMD, 2024 MAR p. 1456, Eff. 6/22/24.

Mont. Admin. R. 20.7.510 Request for Proposals

(1) After the department has held a public hearing and obtained a resolution of support from the governing jurisdiction, the department must issue a request for proposals using a competitive process and follow the applicable contract and procurement procedures in Title 18, MCA.

(2) The department does not have to request proposals for operation of a prerelease center when the department intends to operate the prerelease center.

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 53-1-203, MCA
History: NEW, 1998 MAR p. 3114, Eff. 11/20/98; AMD, 2011 MAR p. 2030, Eff. 9/23/11; AMD, 2024 MAR p. 1456, Eff. 6/22/24.

Mont. Admin. R. 20.7.511 Increase in Contract Capacity for an Existing Prerelease Center

(1) The department may biennially increase the department contract capacity for a prerelease center by not more than 25 percent over the previous biennial contract capacity without engaging in the competitive procurement process.

(2) The department may biennially increase the contract capacity by more than 25 percent but less than 50 percent over the previous biennial contract capacity without engaging in the competitive procurement process if:

(a) the department has determined, in writing, that the increase is in the best interest of the department;

(b) the increase does not change the nature of the prerelease services; and

(3) Before the department executes a contract amendment for an increase in contract capacity of more than 25 percent but less than 50 percent, the department must give notice to the public and to current treatment facility or program providers of its intent to increase the existing prerelease contract capacity.

(a) The department must publish the notice on its website and mail or email the notice to each existing department prerelease center or program provider not less than 90 days in advance of the proposed increase date.

(b) The notice must request potential contractors to notify the department, in writing, of their interest in providing the same services within a reasonable period of time as specified in the notice.

(c) The notice must request potential contractors to provide proof to the department that the potential contractor has the ability to provide the contracted services.

(d) If the department receives appropriate notification under this rule, the department may not proceed without opening up the increase to competitive bidding and following the applicable contract and procurement procedures in Title 18, MCA, for the increased capacity portion only.

(4) The department may not increase contract capacity by more than 50 percent the department contract capacity for a prerelease program without engaging in the competitive bidding process and following the applicable contract and procurement procedures in Title 18, MCA, for the increased capacity portion.

(5) For an increase of the contract capacity of more than 25 percent, the department must conduct a public hearing as provided for in ARM 20.7.509(1) and (2).

(6) This rule does not apply to increase of department contract capacity for a contract between the department and a local or tribal government for operation of a prerelease program established pursuant to the Community Corrections Act, 53-30-301, MCA et seq.

(7) An existing prerelease center that proposes to move locations within the same jurisdiction does not have to be re-sited pursuant to this subchapter. Any move that will result in a proposed increase in contract capacity must comply with the capacity increase provisions in this rule.

(8) Prior to any existing prerelease center moving locations within the same jurisdiction, the department must approve of the move and conduct a public hearing as provided for in ARM 20.7.509(1) and (2).

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 53-1-203, MCA
History: NEW, 1998 MAR p. 3114, Eff. 11/20/98; AMD, 2011 MAR p. 2395, Eff. 9/23/11; AMD, 2024 MAR p. 1456, Eff. 6/22/24.

Mont. Admin. R. 20.7.512 Determining a Location

(1) The prerelease center must be located in an area that has access to:

(a) a law enforcement agency capable of emergency response within 15 minutes;

(b) 24-hour emergency medical and fire protection services;

(d) fire protection by a professional fire protection service capable of responding within a reasonable time as determined by the state fire marshal or the authority having jurisdiction.

(2) The selected location must be in compliance with all applicable laws, codes, ordinances and existing conditions, covenants, restrictions of record, zoning regulations, or be capable of coming into compliance with applicable zoning regulation through the use of a zoning change, variance, conditional use permit, planned unit development, or other process set forth in the governing zoning regulations.

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 53-1-203, MCA
History: NEW, 2011 MAR p. 2030, Eff. 9/23/11; AMD, 2024 MAR p. 1456, Eff. 6/22/24.

Subchapter 20.7.6 Day Reporting

Mont. Admin. R. 20.7.601 Definitions

For the purposes of this chapter, these definitions apply:

(1) "Board" means the Board of Pardons and Parole as authorized in 2-15-2302 and 46-23-104, MCA.

(2) "Conditional Release" means the placement by the department of an offender into the community under the jurisdiction of the department and subject to the department's rules.

(3) "Department" means Department of Corrections as authorized in 2-15-230, MCA.

(4) "Offender" means a person convicted and sentenced for a felony offense.

(5) "Parole" means the release from incarceration by the Board of Pardons and Parole prior to the completion of an offender's sentence of incarceration.

(6) "Probation" means the district court's release of an offender into the community, subject to supervision by the department.

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 53-1-203, MCA
History: NEW, 2011 MAR p. 235, Eff. 2/25/11.

Mont. Admin. R. 20.7.602 Day Reporting Program

(1) The department may establish and administer a day reporting program in any geographic region deemed appropriate by the department. The department may also contract with a Montana corporation to operate a day reporting program in a Montana community deemed appropriate by the department.

(2) The purposes of the day reporting program are to:

(a) provide an alternative sentencing option as a condition of a deferred or suspended sentence;

(b) provide a structured program for closer supervision of offenders on probation, parole, or conditional release;

(d) provide a program that can be used to transition offenders from secure facilities into the community.

(3) Pursuant to 46-18-201, MCA, a court may make participation in the day reporting program a condition of a deferred or suspended sentence. Additionally, the department may, in its sole discretion, place an offender in the program if the department determines that the offender requires that level of supervision.

(4) While in a day reporting program the offender must abide by all the standard probation and parole conditions, any special conditions imposed by the court or the board, and at a minimum, the following program rules:

(a) The offender must, at the direction of the day reporting officer, maintain a telephone land-line or other means of electronic monitoring.

(b) The offender must maintain and abide by a written weekly schedule that includes the specific times the offender will be at work, counseling or treatment, or other significant events.

(d) The offender must abide by the curfew set by the day reporting program officer.

(e) The day reporting program shall have zero tolerance for alcohol and drug use. To assure compliance with the zero tolerance rule, the offender shall be subject to regular and random urinalysis and breath tests.

(f) While in the program, the offender must check-in daily by phone or other means as directed by the day reporting officer and must abide by the following face-to-face meeting schedule with the day reporting officer or designee:

(i) in Phase I, the offender is required to meet daily;

(ii) for the first 30 days of Phase II, the offender is required to meet twice a week; and

(iii) for the final 30 days of Phase II, the offender is required to meet once a week.

(5) An offender who violates program rules is subject to the following:

(a) arrest;

(b) revocation of probation, parole, or conditional release;

(d) imposition of new program rules;

(e) lowering of the offender's program phase; and

(f) a requirement of more time in the program.

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 46-18-201, 46-18-225, 46-23-1015, 53-1-203, MCA
History: NEW, 2011 MAR p. 235, Eff. 2/25/11.

Subchapter 20.7.8 Establishment of Eastmont Chemical Dependency Treatment Program

Mont. Admin. R. 20.7.801 Definitions

As used in this subchapter, the following definitions apply:

(1) "Capacity" means no more than 50 program participants.

(2) "Center" means the chemical dependency treatment center established in the former Eastmont human services center in Glendive, Montana.

(3) "Contractor" means the private, nonprofit Montana corporation with which the department enters a contract to operate the program.

(4) "Department" means the Department of Corrections established in 2-15-2301, MCA.

(5) "Eligible offender" means an offender who has been convicted of a fourth or subsequent offense of driving under the influence of alcohol or drugs or driving with excessive alcohol concentration and has been sentenced under 61-8-731, MCA. The term excludes persons convicted of a sexual or violent offense as defined in 46-23-502, MCA.

(6) "Facility" means the department-owned buildings and real property that comprise the former Eastmont human services campus.

(7) "Program" means the chemical dependency treatment program established in the former Eastmont human services center in Glendive, Montana.

(8) "Program participant" means an offender who is placed in the chemical dependency treatment program.

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 53-1-210, 61-8-731, MCA
History: NEW, 2004 MAR p. 3019, Eff. 12/17/04; AMD, 2008 MAR p. 1142, Eff. 6/13/08.

Mont. Admin. R. 20.7.804 Eastmont Chemical Dependency Treatment Program

(1) The department shall establish a chemical dependency treatment program for the custody, supervision, counseling, and treatment of eligible offenders in the facility in Glendive, Montana. The department shall choose a contractor to operate the program. The contractor shall establish an intensive therapeutic community-model program of approximately six months duration to satisfy the sentencing provision of 61-8-731, MCA for eligible offenders.

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 53-1-210 and 61-8-731, MCA
History: NEW, 2004 MAR p. 3019, Eff. 12/17/04.

Mont. Admin. R. 20.7.807 Admission to the Program

(1) A local screening committee shall determine which eligible offenders it will admit to the program.

(2) The following individuals shall comprise the screening committee:

(a) a department employee appointed by the department;

(b) the program administrator or designee appointed by the contractor;

(d) a member of the public who resides in the city of Glendive appointed by the Glendive city council; and

(e) a member of the public who resides within the Hillcrest or Georgetown subdivisions appointed by the Glendive city council.

(3) The department shall make applications available to eligible offenders. The screening committee shall review the applications, including the criminal records and other pertinent information, and:

(a) determine by majority vote of members present which applicants the program will accept;

(b) maintain the program at or near the program's capacity; and

(i) first, female eligible offenders;

(ii) second, male eligible offenders from the following counties: Carter, Custer, Daniels, Dawson, Fallon, Garfield, McCone, Phillips, Powder River, Prairie, Richland, Roosevelt, Rosebud, Sheridan, Treasure, Valley, and Wibaux; and

(iii) third, male eligible offenders from Montana counties other than those listed in (3) (c) (ii) .

(4) The screening committee may only deny admission to an eligible offender who, in the committee's opinion, is inappropriate for the program, based on a conviction or criminal history that poses an undue risk to a community-based program. The committee shall state the reasons for the denial in writing.

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 53-1-210 and 61-8-731, MCA
History: NEW, 2004 MAR p. 3019, Eff. 12/17/04.

Mont. Admin. R. 20.7.810 Requirements Affecting Use of Facility

(1) The department and the contractor shall adhere to the following provisions that pertain to the use of the facility:

(a) program participants may not enter or occupy for any purpose buildings three and four;

(b) program participants may enter and occupy only buildings one and two;

(c) building two may only be used for programming and recreation. Participants may not enter building two between the hours of 10 p.m. and 7 a.m.;

(d) program participants' sleeping quarters in building one must be restricted to rooms whose windows face the interior courtyard or other fenced areas;

(e) program participants must be restricted from all outside areas except for the courtyard. The contractor shall provide direct supervision whenever participants are in the courtyard; and

(f) participant, staff and visitor access to the facility must be limited to the outside corridor located near the current dining area in building one.

(2) The department shall complete or require the contractor to complete the following:

(a) enclose the corridor connecting buildings one and two;

(b) improve or install exit alarms on all doors and windows that do not face a fenced area and enhance security on all doors and windows that do not face the courtyard;

(d) fence the corridor near the current dining area and adjacent area to control movement and reduce visual contact with the public.

(3) Upon request, and in exchange for the benefit of the additional security created by a law enforcement presence, the department shall provide one office in the facility for the Dawson county sheriff's department and one office in the facility for the Glendive police department. Law enforcement personnel staffing these offices shall act independently of the department and have no supervisory duties with respect to program participants.

(4) Eastmont facility map:

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 53-1-210 and 61-8-731, MCA
History: NEW, 2004 MAR p. 3019, Eff. 12/17/04.

Mont. Admin. R. 20.7.813 Requirements Affecting Program Participants and Visitors

(1) The department and the contractor shall adhere to the following provisions that pertain to program participants and visitors:

(a) program participants must wear clothing of an easily identifiable style and color, of which the contractor shall notify the public;

(b) the transport of program participants to the program may only be conducted by law enforcement or other supervised form of transportation approved by the department, including but not limited to the contractor, department staff, state or local law enforcement agencies or contracted transportation providers; and

(c) approved visitors may only visit program participants on Sundays unless otherwise approved by the department. Approved visitors may only access the facilityvia transportation provided by the contractor from an approved central Glendive city location.

(2) In the event a program participant is unaccounted for within the facility and is alleged to have escaped from the facility, program staff shall immediately:

(a) notify appropriate law enforcement and corrections agencies;

(b) activate an alarm audible to residences in the Georgetown/Hillcrest areas; and

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 53-1-210 and 61-8-731, MCA
History: NEW, 2004 MAR p. 3019, Eff. 12/17/04.

Mont. Admin. R. 20.7.816 Expansion or Modification

(1) The department may not expand the capacity or modify the purpose of the program set forth in these rules unless it documents public support of a majority of public officials, a majority of residents of the community of Glendive, and a majority of the Hillcrest and Georgetown subdivisions.

(2) To document public support, the department shall conduct a survey of an unbiased representative sampling of the Glendive community and the Hillcrest and Georgetown subdivisions and a survey of the following public officials:

(a) members of the city and county governing bodies;

(b) the city and county attorney;

(d) the mayor;

(e) the local district court judge;

(f) state legislators for the area;

(g) the sheriff; and

(h) the chief of police.

(3) If the department documents public support for a proposed expansion or change in the purpose of the program as set forth in (2) , the department shall then conduct a public hearing in Glendive, Montana, in accordance with the Montana Administrative Procedure Act, 2-4-302 , MCA. In addition to the notice requirements set forth therein, the department shall publish notice of the hearing in a newspaper of general circulation within the city of Glendive and Dawson County reasonably in advance of the hearing.

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 2-4-302, 53-1-210 and 61-8-731, MCA
History: NEW, 2004 MAR p. 3019, Eff. 12/17/04.

Subchapter 20.7.9 Establishment of a Residential Methamphetamine Treatment Center

Mont. Admin. R. 20.7.901 Definitions

As used in this subchapter, the following definitions apply:

(1) "ACA standards" means American Correctional Association standards for adult community residential services.

(2) "Aftercare" means the community-based portion of the methamphetamine treatment program to which an offender is committed after successful completion of the residential component of the program.

(3) "Contractor" means a private, nonprofit Montana corporation organized and incorporated in this state under the Montana Nonprofit Corporation Act, Title 35, chapter 2, MCA, with which the department enters a contract to operate a program.

(4) "Department" means the Department of Corrections established in 2-15-2301, MCA.

(5) "Facility" means a building or a part of a building that houses a residential portion of a methamphetamine treatment program.

(6) "Participant" or "program participant" means an offender approved by the department and local screening committee to participate in the methamphetamine treatment program.

(7) "Program" means only the residential portion of a methamphetamine treatment program established pursuant to HB 326 (Ch. 277), L. 2005 and does not include, for the purposes of this subchapter, the community-based prerelease center portion of the treatment.

(8) "Residential" means a minimum of six months housed in a facility providing an intensive therapeutic community model of treatment.

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 53-1-201, 53-1-203, MCA
History: NEW, 2005 MAR p. 1917, Eff. 10/7/05; AMD, 2018 MAR p. 1730, Eff. 8/25/18.

Mont. Admin. R. 20.7.904 Establishment of a Methamphetamine Treatment Program

(1) The department may operate or select a contractor to operate a program in an existing correctional facility.

(2) The department may select a contractor to site a facility and operate a program if, after a public hearing conducted by the contractor, the applicable governing body of the community passes a resolution in support of the proposal.

(3) The facility must be sited near a civilian population center within at least:

(a) 30 minutes emergency response time of a hospital; and

(b) 30 minutes emergency response time of a fulltime or volunteer fire department.

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 53-1-201, 53-1-203, MCA
History: NEW, 2005 MAR p. 1917, Eff. 10/7/05; AMD, 2018 MAR p. 1730, Eff. 8/25/18.

Mont. Admin. R. 20.7.907 Facility Requirements

(1) Any facility housing a program must have controlled access and other appropriate security measures to prevent unauthorized access to or from the facility.

(2) The facility and its operation must comply with all applicable federal, state and/or local building codes and fire safety codes.

(3) The physical plant shall constitute a pleasant, safe, and healthful environment. Participant housing areas must conform to applicable ACA standards, provide access for participants with qualifying disabilities, and provide for participant safety and security.

(4) If the facility houses both male and female participants, the facility design, construction, and operation must assure adequate separation of the sexes to provide for the safety of both.

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 53-1-201, 53-1-203, MCA
History: NEW, 2005 MAR p. 1917, Eff. 10/7/05; AMD, 2018 MAR p. 1730, Eff. 8/25/18.

Mont. Admin. R. 20.7.910 Policies and Procedures

(1) A contractor must submit written policies and procedures for initial review and approval by the department prior to opening a facility or program, and update and submit them for annual review by the department thereafter.

(2) The policies and procedures must address:

(a) accounting for participant trust funds in accordance with accepted accounting procedures;

(b) protection against the danger of fire and smoke, injury attributable to the environment, electrical hazards, and the spread of disease and infection. The contractor must maintain records of inspections by local, state and federal authorities having jurisdiction;

(c) maintenance of participant records to assure confidentiality of criminal justice and treatment information. The contractor will release confidential information only to the department and appropriate persons;

(d) disciplinary procedures for alleged rule infractions by participants consistent with the department's disciplinary policies;

(e) incarceration of participants who violate program rules or who await transportation to a higher level of custody;

(f) continued operation of the facility and program in the event of an employee work stoppage, disaster, or emergency. The disaster and emergency plans and procedures shall be posted at highly visible locations and explained to each new participant at orientation. The contractor shall hold drills at least quarterly to evaluate the effectiveness of the plans and procedures;

(g) participant escapes consistent with the department's escape policies. The contractor must notify the proper authorities in a timely fashion;

(h) preemployment background checks of staff. The contractor may not employ anyone with a felony conviction without express written authorization of the department. The contractor must staff the center to conform to applicable standards to protect staff and participants from harm;

(i) compliance with the Federal Prison Rape Elimination Act;

(j) selection, pay, and supervision of inmate workers assigned to the facility as approved by the department; and

(k) food services that provide participants with at least the minimum daily adult level of caloric intake and nutritional levels as recommended by the U.S. Department of Agriculture, subject to annual review and approval by a qualified nutritionist, dietician, or physician.

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 53-1-201, 53-1-203, MCA
History: NEW, 2005 MAR p. 1917, Eff. 10/7/05; AMD, 2018 MAR p. 1730, Eff. 8/25/18.

Mont. Admin. R. 20.7.913 Admission to the Program and Aftercare

(1) The department shall recommend for admission to the program eligible offenders and other offenders committed to the custody of the department who the department deems will benefit from the treatment program and who are not otherwise disqualified by their institutional conduct or incapacity to complete treatment.

(2) A local screening committee, consisting of the following individuals, shall review the department's recommendation:

(a) one department employee;

(b) one person appointed by the contractor;

(c) a law enforcement officer appointed by both the sheriff of the county in which the center resides and the police department of the city if the center resides inside city limits; and

(d) a member of the public who resides in the city or county and appointed by the city council or county governing body depending on whether the center is located inside the city limits of a city.

(3) The screening committee shall have the final determination regarding the admission of any offender to the facility.

(4) Each committee member shall have one vote. In the case of a tie vote, the facility administrator will cast a vote to break the tie.

(5) If the committee rejects an offender, the committee must in writing state its reasons for the rejection. The committee may reject offenders for any of the following reasons:

(a) the offender presents an unacceptable level of risk to the safety of other offenders or staff;

(b) the offender presents an unacceptable level of risk to himself or herself;

(d) the offender has needs beyond services the center can provide.

(6) The committee may rescreen an offender if additional relevant information is presented or after the offender has had a period of stabilization.

(7) Upon successful completion of the residential program and on the recommendation of a licensed clinical professional, the department may require an offender to complete community-based aftercare. At the discretion of the department, the department may place eligible offenders in a prerelease center to complete community-based aftercare or may identify an appropriate alternative placement.

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 53-1-201, 53-1-203, MCA
History: NEW, 2005 MAR p. 1917, Eff. 10/7/05; AMD, 2018 MAR p. 1730, Eff. 8/25/18.

Mont. Admin. R. 20.7.919 Expansion

(1) If the contractor and the department desire to increase the number of program participants over the number for which the department initially contracts, the department shall conduct a public hearing in the city or county in which the center is situated. The department shall conduct the hearing in conformity with Title 2, chapter 3, MCA.

(2) A resolution in support of the expansion by the applicable governing body of the community in which the facility is located must accompany any proposed expansion contemplated in (1).

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 53-1-201, 53-1-203, MCA
History: NEW, 2005 MAR p. 1917, Eff. 10/7/05; AMD, 2018 MAR p. 1730, Eff. 8/25/18.

Subchapter 20.7.10 Expansion of Contracted Treatment Facilities or Programs

Mont. Admin. R. 20.7.1001 Increase in Contract Capacity

(1) The Department of Corrections may biennially increase the department contract capacity by not more than 25 percent for a contracted treatment facility or program that was established through competitive bidding.

(2) The department may biennially increase the contract capacity of a contracted treatment facility or program by more than 25 percent but less than 50 percent for a treatment facility or program that was established through competitive bidding if:

(a) the department has determined, in writing, that the increase is in the best interest of the department;

(b) the increase does not change the nature of the contracted services provided in the facility or program; and

(3) Before the department executes a contract amendment for an increase of more than 25 percent but less than 50 percent, the department must give notice to the public and to current treatment facility or program providers of its intent to expand the existing treatment facility or program.

(a) The department must publish the notice not less than 90 days in advance of the proposed expansion date.

(b) The notice must request potential contractors to notify the department, in writing, of their interest in providing the same services.

(c) The notice must request potential contractors to provide proof to the department that the potential contractor has the ability to provide the contracted services.

(d) Notice is considered accomplished under this subsection if the department publishes the notice on its web site and sends such notice to each existing department treatment facility or program provider.

(e) The department shall set a reasonable deadline for potential contractors to notify the department.

(f) If the department receives notification under this subsection from a valid potential contractor who is able to provide such services, the department may not proceed without opening up the expansion to competitive bidding for the expansion portion only.

(4) The department must engage in the competitive procurement process for the expansion portion in order to increase by more than 50 percent the contract capacity of a treatment facility or program that was established through the competitive procurement process or to increase the contract capacity of a treatment facility or program that was not established through competitive procurement.

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 53-1-203, MCA
History: NEW, 2011 MAR p. 2027, Eff. 10/1/11.

Subchapter 20.7.11 Conditions on Probation or Parole

Mont. Admin. R. 20.7.1101 Conditions on Probation or Parole

(1) The offender is under the supervision of the department, subject to all requirements of a law-abiding citizen, and rules and regulations of adult probation and parole, including any sanctions.

(2) The offender must obtain prior approval from his/her supervising officer before taking up residence in any location. The offender shall not change his/her place of residence without first obtaining permission from his/her supervising officer or the officer's designee. The offender must make the residence open and available to an officer for a home visit. The offender will not own dangerous or vicious animals and will not use any device that would hinder an officer from visiting or searching the residence.

(3) The offender must obtain permission from his/her supervising officer or the officer's designee before leaving his/her assigned district. For any in-state travel, the offender must confer with their supervising officer about the travel permit policy.

(4) The offender must personally contact his/her supervising officer or designee when directed by the officer.

(5) The offender is prohibited from using, owning, possessing, transferring, or controlling any firearm, ammunition (including black powder), weapon, or chemical agent such as oleoresin capsicum or pepper spray.

(6) Upon reasonable suspicion that the offender has violated the conditions of supervision, a probation and parole officer may search the person, vehicle, and residence of the offender, and the offender must submit to such search. A probation and parole officer may authorize a law enforcement agency to conduct a search, provided the probation and parole officer determines reasonable suspicion exists that the offender has violated the conditions of supervision.

(7) The offender must notify his/her supervising officer within 72 hours whenever the offender has a change in circumstances of employment or alternative approved programming, or any contact with law enforcement.

(8) The Montana Board of Pardons and Parole and the sentencing court have the authority to order the offender to abide by additional conditions and such conditions must be contained in the judgment or parole decision.

History

Authorizing statute(s): 2-4-201, 46-23-1011, 53-1-203, MCA
Implementing statute(s): 46-23-1011, 46-23-1021, MCA
History: NEW, 1978 MAR p. 1330, Eff. 8/30/78; AMD, 1990 MAR p. 1560, Eff. 8/17/90; AMD, 1992 MAR p. 1482, Eff. 7/17/92; AMD, 2008 MAR p. 1145, Eff. 6/13/08; AMD, 2024 MAR p. 2146, Eff. 9/7/24.

Mont. Admin. R. 20.7.1102 Written Agreement

(1) The probation and parole officer is required to provide in writing to the offender all of the conditions of probation, parole, or other community supervision. The offender must agree to the conditions before he/she is eligible to be supervised on probation, parole, or other community supervision. Further, such written agreement will contain the following statement: "I do hereby waive extradition to the state of Montana from any state in the union and from any territory or country outside the continental United States or to the state of Montana. I understand that this probation or parole is granted to and accepted by me subject to the conditions, limitations, and restrictions stated herein and with the knowledge that the Montana Board of Pardons and Parole, or the sentencing court or the Montana Department of Corrections have the power at any time in case of violation of the conditions, limitations, and restrictions of my probation or parole, to cause my detention and return to incarceration at any institution so designated by the department. I have read or have had read to me the foregoing conditions of my probation and parole. I fully understand them and I agree to abide by and strictly follow them and fully understand the penalties involved should I in any manner violate the foregoing conditions, limitation, or restrictions."

History

Authorizing statute(s): 2-4-201, MCA
Implementing statute(s): 46-23-1101, MCA
History: NEW, 1978 MAR p. 1330, Eff. 8/30/78; AMD, 2008 MAR p. 1145, Eff. 6/13/08.

Subchapter 20.7.13 Probation and Parole

Mont. Admin. R. 20.7.1302 Authorization for Probation and Parole Officers to Carry Firearms, Firearms Training Requirements, and Department Procedures Pertaining to Firearms

(1) A currently appointed probation and parole officer is authorized to carry and deploy a department-issued firearm in the performance of official duties as provided in the department's written Probation and Parole Bureau Standard Operating Procedures.

(2) Within the initial time parameters required under 44-4-404, MCA, a probation and parole officer shall successfully complete the department's POST-certified Basic Training Course for Probation and Parole Officers including the firearms training component and the firearms proficiency standards established for public safety officers by the Public Safety Officer Standards and Training Council (Council) under ARM 23.13.215. The firearms proficiency standards must be met by the probation and parole officer only for the particular firearm issued by the department to the probation and parole officer.

(3) The department's written Probation and Parole Bureau Standard Operating Procedures governing the carrying of firearms and use of force must cover the following topics:

(a) required firearms training courses and certification procedure;

(b) type(s) of department-issued firearms permitted to be carried by probation and parole officers;

(c) circumstances under which a probation and parole officer is permitted to carry a firearm or is prohibited from carrying a firearm;

(d) circumstances under which a probation and parole officer is authorized to use a firearm in the deployment of deadly force;

(e) control and storage of department-issued firearms;

(f) monitoring and documenting the use of a firearm by a probation and parole officer; and

(g) any specific procedures or requirements pertaining to a probation and parole officer carrying a concealed firearm.

History

Authorizing statute(s): 46-23-1002, MCA
Implementing statute(s): 46-23-1002, MCA
History: NEW, 2016 MAR p. 462, Eff. 3/5/16.

Part Subchapter 20.7.14 Preparole Screening

Mont. Admin. R. 20.7.1401 Institutional Screening

(1) The Department of Corrections (department) will screen eligible inmates for potential placement in a treatment or prelease facility prior to their parole eligibility.

(2) Potential placement in a treatment or prerelease facility prior to parole eligibility is a privilege, not a right.

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 53-1-203, MCA
History: NEW, 2024 MAR p. 1881, Eff. 7/27/24.

Mont. Admin. R. 20.7.1402 Initial Eligibility Criteria

(1) To be considered an eligible inmate, the inmate must meet all of the following criteria:

(a) be under physical custody of the department as a secure placement inmate;

(b) be under physical custody of the department as a secure placement inmate;

(d) have 120 days of clear conduct prior to review;

(e) have 120 days of clear conduct prior to review;

(f) have not refused recommended treatment or other recommended programming within the last 180 days prior to review; and

(g) have not been removed from recommended treatment or other recommended programming for disciplinary reasons within 180 days prior to review.

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 53-1-203, MCA
History: NEW, 2024 MAR p. 1881, Eff. 7/27/24.

Mont. Admin. R. 20.7.1403 Screening Factors

(1) In making its decision regarding eligibility for potential placement, the department will weigh and consider the following factors:

(a) time until parole eligibility;

(b) current risk assessment of the eligible inmate;

(d) the type of crime for which the sentence is being served;

(e) whether the eligible inmate is required to register as a sexual or a violent offender upon release;

(f) whether the eligible inmate is required to register as a sexual or a violent offender upon release;

(g) victim input;

(h) eligible inmate's overall conduct while in secure custody;

(i) eligible inmate's overall conduct while in secure custody;

(j) eligible inmate's overall conduct while in secure custody;

(2) The department may, in its sole discretion, interview the eligible inmate being considered as part of its decision process.

(3) Any one factor may be sufficient to deny an eligible inmate's potential placement outside of the secure facility prior to the individual's parole eligibility.

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 53-1-203, MCA
History: NEW, 2024 MAR p. 1881, Eff. 7/27/24.

Mont. Admin. R. 20.7.1404 Decision in Writing

(1) The department will provide the eligible inmate being considered for potential placement with its decision in writing.

(2) If the department decides that placement outside of the secure facility is not appropriate prior to the eligible inmate's parole eligibility, the department must state the reason for its decision in the written decision.

(3) If the department decides that placement outside of the secure facility is appropriate prior to the eligible inmate's parole eligibility, that determination does not guarantee the inmate will be placed in any specific facility or placed at all.

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 53-1-203, MCA
History: NEW, 2024 MAR p. 1881, Eff. 7/27/24.

Mont. Admin. R. 20.7.1405 Final Decision

(1) The decision of the department is final and is not subject to appeal or grievance.

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 53-1-203, MCA
History: NEW, 2024 MAR p. 1881, Eff. 7/27/24.

Mont. Admin. R. 20.7.1406 One-Time Consideration

(1) An eligible individual may be considered by the department only one time for any one particular sentence.

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 53-1-203, MCA
History: NEW, 2024 MAR p. 1881, Eff. 7/27/24.

Chapter 20.9 Youth Services

Subchapter 20.9.1 Youth Placement Committees

Mont. Admin. R. 20.9.101 Definitions

For the purpose of this subchapter, the following definitions apply:

(1) "Committee" means a youth placement committee appointed by the youth court judge pursuant to 41-5-121, MCA.

(2) "Committee records" means written documents submitted to the committee by the juvenile probation or parole officer, but does not include recording or documents required by the department for audits or monitoring of the committee process as required by 41-5-2006, MCA.

(3) "Department" means the Department of Corrections as authorized in 2-15-2301, MCA.

History

Authorizing statute(s): 41-5-125, MCA
Implementing statute(s): 41-5-121, 41-5-122, MCA
History: NEW, 1987 MAR p. 1625, Eff. 9/25/87; TRANS, 1996 MAR p. 1385; AMD, 2000 MAR p. 1078, Eff. 4/28/00; AMD, 2002 MAR p. 2433, Eff. 9/13/02; AMD, 2013 MAR p. 51, Eff. 1/18/13.

Mont. Admin. R. 20.9.122 Confidentiality of Committee Meetings and Records

(1) Meetings of a youth placement committee shall be closed to the public to protect the youth's right to individual privacy.

(2) Information presented to the committee about a youth and committee records are confidential and may not be disclosed to persons other than:

(a) committee members;

(b) department employees;

(d) the youth's parents, guardians or custodians;

(e) the county attorney;

(f) the youth's attorney;

(g) the youth's probation officer; or

(h) the youth care facility or juvenile correctional facility where the youth is placed.

(3) Information such as psychiatric reports, child abuse or neglect reports, or police reports containing confidential information may not be disclosed to any parties named in those reports unless authorized by order of the district or youth court judge.

(4) Recordings or records of committee deliberations used by the department for monitoring or audit purposes may not be disclosed to persons outside of the department or youth court unless such disclosure is authorized by order of the district or youth court judge.

History

Authorizing statute(s): 53-1-203, MCA
Implementing statute(s): 41-5-123, 41-5-124 and 41-5-125, MCA
History: NEW, 1987 MAR p. 1625, Eff. 9/25/87; TRANS, 1996 MAR p. 1385; amd, 2000 MAR p. 1078, Eff. 4/28/00; AMD, 2002 MAR p. 2433, Eff. 9/13/02.

Subchapter 20.9.2 Juvenile Delinquency Intervention Act

Mont. Admin. R. 20.9.201 Definitions

For the purpose of this subchapter, the following definitions apply:

(1) "CAPS" means child and adult protective services, the online statewide management system maintained by DPHHS.

(2) "Cost containment pool" means funds retained by the department under 41-5-132, MCA, for disbursement by the cost containment review panel.

(3) "Cost containment review panel" means the panel established in 41-5-131, MCA.

(4) "Department" means the Department of Corrections as authorized in 2-15-2301, MCA.

(5) "DPHHS" means the Department of Public Health and Human Services.

(6) "Juvenile delinquency intervention act" (JDIP) means the act established by the Montana Legislature and implemented by the Department of Corrections to more effectively manage juvenile placement services and funding.

(7) "Mental disorder" has the meaning found in 53-21-102, MCA.

(8) "Youth correction facility" means a facility for the habilitation of delinquent youth such as the Pine Hills Youth Correctional Facility, Riverside Youth Correctional Facility, or a youth correctional facility under contract with the Department of Corrections.

History

Authorizing statute(s): 41-5-125, MCA
Implementing statute(s): 41-5-121, 41-5-122, MCA
History: NEW, 1987 MAR p. 1625, Eff. 9/25/87; TRANS, 1996 MAR p. 1385; AMD, 2000 MAR p. 1078, Eff. 4/28/00; AMD, 2002 MAR p. 2433, Eff. 9/13/02; AMD, 2013 MAR p. 51, Eff. 1/18/13.

Mont. Admin. R. 20.9.204 Allocation of Juvenile Placement Funds to the Office of Court Administrator, Juvenile Parole, Judicial Districts, and Cost Containment Pool

(1) For each fiscal year, out of the money appropriated by the Legislature for juvenile placement funds, the department will allocate money to the Office of Court Administrator, the cost containment pool, and the juvenile parole in the following manner and amounts:

(a) The department will allocate $25,000 to the Office of Court Administrator for evaluations of out-of-home placements, programs, and services.

(b) The department will allocate at least $1 million to the cost containment pool. The cost containment review panel will recommend to the department an amount to be allocated to the cost containment pool. After considering the recommendation of the cost containment review panel, the department shall determine if it will allocate more than $1 million to the cost containment pool. If the cost containment pool expenditures exceed $900,000 in the previous fiscal year, the department will allocate at least an amount equal to the amount over $900,000 of pool expenditures in addition to $1 million to the pool for the next fiscal year; the department may allocate additional funds.

(c) After funds have been allocated as indicated in (1)(a) and (b), the department will allocate 11 percent of appropriated juvenile placement funds to juvenile parole for out-of-home placements, programs, and services for youth on juvenile parole.

(2) After funds have been allocated as indicated in (1)(a) through (c), the department shall allocate the remaining funds to judicial districts for out-of-home placements, programs, and services for youth. The cost containment review panel will determine the formula the department must use to establish the amount of funds allocated to each judicial district.

(3) After the cost containment review panel has determined the allocation formula to be used to compute the amount of funds to be distributed to each judicial district, the department will use the formula to calculate the amount allocated to each judicial district.

(4) By no later than July 15 of each year, the department will notify each judicial district of the following:

(a) the total amount of funds appropriated by the Legislature for the juvenile placements, the amount of funds allocated to the Office of Court Administrator for evaluations, the amount allocated to juvenile parole, the amount allocated to the cost containment pool, and the amount remaining that will be allocated to the judicial districts;

(b) the allocation formula the cost containment review panel established; and

(c) the amount the department has calculated the judicial district will receive from the remaining appropriated funds using the formula established by the cost containment review panel.

History

Authorizing statute(s): 41-5-2006, MCA
Implementing statute(s): 41-5-130, 41-5-131, 41-5-132, MCA
History: NEW, 2002 MAR p. 2433, Eff. 9/13/02; AMD and TRANS, from 20.9.129, 2013 MAR p. 51, Eff. 1/18/13.

Mont. Admin. R. 20.9.207 Monitoring Judicial Districts and Processing Payments

(1) Each judicial district and the department shall monitor the judicial district's annual allocation to ensure the judicial district does not exceed its annual allocation.

(2) In order to properly monitor the judicial district's annual allocation, the judicial district shall input costs for services to youth into the CAPS system or alternative system of payment processing. If a judicial district has extenuating circumstances that require an expenditure outside the CAPS system or alternative system of payment processing, the judicial district shall obtain the department's approval prior to the expenditure.

(3) The department will provide technical assistance to any judicial district that requests assistance with monitoring its annual allocation.

(4) The department shall prepare a monthly budget status report that indicates the amount each judicial district has expended or committed to expend from its annual allocation and the amount remaining in the allocation.

(a) The department shall submit the monthly budget status report to each judicial district and to the cost containment review panel.

(b) If it appears to the department that the judicial district will exceed its annual allocation, the department will notify the judicial district and the cost containment review panel of the judicial district's expected excess and advise the judicial district of appropriate procedures and actions it should take to come into compliance with the spending authority it has or procedures with which it must comply to receive additional funds from the cost containment pool.

(5) The department shall reconcile allocations with expenses for all judicial districts. If the department encounters an error or irregularity in a judicial district's account, the department shall request the Office of Court Administrator review the error or irregularity to determine if an audit of the judicial district's account is necessary. After consultation with the department, if the Office of Court Administrator elects to pursue an audit of the judicial district's account, the department will assist with the audit as necessary.

(6) The department will process payments to providers after expenditures have been properly entered into the CAPS system or have been approved as indicated in (2).

(a) The department financial and program chief will approve expenditures that are appropriately documented and entered within 30 days of commencement of service or within five working days of changes of placement or closure of services.

(b) The department will generate payments within 30 days of approval by the department's financial and program chief.

History

Authorizing statute(s): 41-5-2006, MCA
Implementing statute(s): 41-5-130, 41-5-2003, 41-5-2004, 41-5-2005, MCA
History: NEW, 2002 MAR p. 2433, Eff. 9/13/02; AMD and TRANS, from 20.9.135, 2013 MAR p. 51, Eff. 1/18/13.

Mont. Admin. R. 20.9.210 Removing a Youth with a Mental Disorder from a State Youth Correctional Facility

(1) A youth correctional facility must remove a youth committed to it if the facility learns that the youth suffers from a mental disorder and, because of the mental disorder, the youth:

(a) is substantially unable to provide for the youth's own basic needs including the youth's health or safety; i.e., cannot provide for the youth's hygiene;

(b) has recently caused self-injury or injury to others;

(d) the youth's disorder will, if untreated, predictably deteriorate to the point the youth will become a danger to himself/herself or to others.

(2) Treatment staff in a youth correctional facility will assess youth at the following times to determine if the youth suffers from a mental disorder and the youth meets any of the criteria in (1)(a) through (d):

(a) at the time of the admission to the facility;

(b) at regular intervals if the youth has been diagnosed with a mental disorder or if the youth has been prescribed psychotropic medications for a mental disorder; and

(3) If, after assessment by the correctional facility treatment staff, the facility has reason to believe the youth suffers from a mental disorder and meets one of the criteria in (1)(a) through (d), the facility will obtain an evaluation of the youth by a medical doctor, an advanced practice registered nurse with a clinical specialty in psychiatric mental health nursing, a licensed psychologist, or a person who has been certified by the Department of Public Health and Human Services.

(4) If the person listed in (3) certifies that the youth suffers from a mental disorder and meets one of the criteria in (1)(a) through (d), the facility will make application to Medicaid and to in-state psychiatric residential treatment facilities for residential psychiatric treatment of the youth. If no in-state psychiatric residential treatment facilities will accept the youth, the facility will make application to out-of-state psychiatric residential treatment facilities.

(5) When a youth correctional facility places a youth in a psychiatric residential treatment facility, it will periodically discuss the youth's progress with the treatment facility. If the youth makes sufficient progress so the youth no longer suffers from a mental disorder or no longer meets any of the criteria in (1)(a) through (d), the youth correctional facility will take the youth back in the facility, or may release the youth to juvenile parole.

History

Authorizing statute(s): 41-5-2006, MCA
Implementing statute(s): 41-5-1504, 41-5-2006, MCA
History: NEW, 2013 MAR p. 51, Eff. 1/18/13.

Subchapter 20.9.3 Parole

Mont. Admin. R. 20.9.302 Parole Agreement Violation, Initial Investigation, and Detainer

(1) When a parole officer has reason to believe a youth may have violated the youth's written parole agreement in a manner to justify the youth's return to a secure placement facility, the parole officer may issue a written notice to authorize the department or law enforcement officer to detain the youth.

(2) The parole officer must immediately investigate to determine whether the allegations constitute a violation of the written parole agreement. If, on the basis of the investigation, the parole officer concludes that the allegations do not constitute a violation of the written parole agreement, the officer shall dismiss the allegations and immediately cause the youth to be released from detention.

(a) "Secure placement facility" means a juvenile correctional facility or other placement deemed appropriate by the youth's parole officer.

(3) If the allegations support a violation of the parole agreement, the parole officer must file a report of violation that documents the violation with specific facts, including, but not limited to:

(a) a description of acts or omissions;

(b) dates;

(d) places; and

(e) the names of witnesses and the substance of their testimony.

(4) The parole officer must further:

(a) determine and document whether it is necessary to continue the youth's detention pending the hearing;

(b) ensure the appropriateness of the youth's place of detention; and

(5) Pending the hearing and decision, the department may detain a youth only to protect the person or property of the youth or others or when the youth may abscond or be removed from the community. The detention of the youth may occur only in the places described in 41-5-348 and 41-5-349, MCA.

History

Authorizing statute(s): 52-5-102, 52-5-129, MCA
Implementing statute(s): 52-5-102, 52-5-126, 52-5-127, 52-5-128, 52-5-129, MCA
History: NEW, 2003 MAR p. 108, Eff. 1/31/03; AMD, 2011 MAR p. 1821, Eff. 9/9/11.

Mont. Admin. R. 20.9.306 Scheduling and Notice of Hearing

(1) The parole officer shall schedule a hearing to be held at the site of the alleged violation or in the county where the youth is residing or is found, in a location determined by the hearings officer. The hearing must occur within ten days after the youth's detention, or ten days after notice has been served on the youth, whichever is earlier.

(2) As soon as possible after the alleged violation, and at least 24 hours prior to the hearing, the parole officer shall serve the youth with the forms approved by the Youth Services Division which include written notice of the time, date, location of the hearing, and the alleged violation of the parole agreement.

History

Authorizing statute(s): 52-5-102, 52-5-129, MCA
Implementing statute(s): 52-5-102, 52-5-126, 52-5-127, 52-5-128, 52-5-129, MCA
History: NEW, 2003 MAR p. 108, Eff. 1/31/03; AMD, 2011 MAR p. 1821, Eff. 9/9/11.

Mont. Admin. R. 20.9.308 Hearing Procedures

(1) The youth may submit a written request to the hearings officer to continue the hearing for a reasonable time period for good cause. The hearings officer must confirm the mutually agreeable rescheduled date in writing to the youth and the youth's attorney.

(2) If a youth has failed to retain counsel, the hearings officer shall appoint an attorney to represent the youth.

(3) On request of either party, the hearings officer shall issue and the parole officer shall serve subpoenas to procure the attendance of witnesses or production of documents at the hearing.

(4) The hearing is a public proceeding. However, upon a finding that an individual right of privacy outweighs the public's right to know, the hearings officer may exclude members of the public from all portions of the hearing pertaining to privacy interests. Witnesses may attend only during their testimony.

(5) The hearing shall be conducted informally. The hearings officer must record the hearing and establish for the record the identity of persons present and that the youth received prior written notice of:

(a) the alleged violation of the parole agreement;

(b) the purpose of the hearing;

(d) the opportunity to have the hearings officer subpoena witnesses;

(e) the opportunity to be heard in person or by interactive video transmission and to present witnesses and documentary evidence to controvert the evidence against the youth and to show that there are compelling reasons that justify or mitigate the violation;

(f) the right to confront and cross-examine adverse witnesses in person or by means of interactive video transmission; and

(g) the right to be represented by an attorney.

(6) The hearings officer shall request that the youth enter a plea to the allegations. In the event the youth enters a plea, the hearings officer shall determine whether the youth's plea was made voluntarily and without duress or promise.

(7) The hearings officer must review the evidence submitted by both parties and if, by a preponderance of the evidence, the hearings officer finds that the youth committed the alleged violation, the hearings officer must decide if the youth is to be returned to a youth correctional facility or if the hearings officer recommends the youth be placed in a community placement. The hearings officer may consider mitigating or aggravating circumstances in reaching the decision.

(8) The hearings officer must, within 24 hours of the hearing, provide to the parole officer and the youth a record of the hearing and a written statement of the evidence relied upon by the hearings officer in reaching the final decision and the reasons for the final decision.

(9) The hearings officer shall attach to the final decision, an appeal form approved by the Youth Services Division containing information regarding the appeal process of the hearings officer's decision.

History

Authorizing statute(s): 52-5-102, 52-5-129, MCA
Implementing statute(s): 52-5-102, 52-5-126, 52-5-127, 52-5-128, 52-5-129, MCA
History: NEW, 2003 MAR p. 108, Eff. 1/31/03; AMD, 2011 MAR p. 1821, Eff. 9/9/11.

Mont. Admin. R. 20.9.311 Appeal

(1) The youth may appeal the hearings officer's decision to the department director by submitting a notice of appeal and any additional information within five days of the hearing. Upon request of the youth to the department, the youth may receive a copy of the recording of the hearing. The director or director's designee shall review the record and grant or deny the appeal within five days of receipt of the appeal.

(2) As soon as possible following receipt of request for a copy of the recording of the hearing, the hearings officer shall provide copies of the hearing recording to be made and submitted to the youth and to the department director.

(3) Within five days of receipt of the appeal, the department director shall review the decision of the hearings officer and determine whether the decision is supported by a preponderance of the evidence. The director shall either affirm the decision or vacate the decision.

(4) The statement shall contain notice to the youth of the youth's right to appeal, within ten days, the director's decision to the district court in the county where the parole revocation hearing was held and the youth's right to have a written transcript of the hearing if the youth appeals the decision to district court.

(5) Within a reasonable time of notice of the youth's appeal to district court, the department will furnish a transcript of the revocation hearing to the youth's attorney.

History

Authorizing statute(s): 52-5-102, 52-5-129, MCA
Implementing statute(s): 52-5-102, 52-5-126, 52-5-127, 52-5-128, 52-5-129, MCA
History: NEW, 2003 MAR p. 108, Eff. 1/31/03; AMD, 2011 MAR p. 1821, Eff. 9/9/11.

Mont. Admin. R. 20.9.315 Waiver of Right to Hearing

(1) At any time prior to the hearing, the youth may, upon the advice of an attorney, waive his/her right to the hearing on a form provided by the Youth Services Division for that purpose. A waiver of the hearing constitutes an admission by the youth of the alleged violations and authorizes the hearings officer to render a decision on the youth's placement in a youth correctional facility or in the community. A youth not represented by an attorney may not waive the right to a hearing.

History

Authorizing statute(s): 52-5-102, 52-5-129, MCA
Implementing statute(s): 52-5-102, 52-5-126, 52-5-127, 52-5-128, 52-5-129, MCA
History: NEW, Eff. 1/2/77; TRANS, from Dept. of Institutions, Ch. 609, L. 1987, Eff. 10/1/87; TRANS, 1996 MAR p. 1385; AMD, 2003 MAR p. 108, Eff. 1/31/03; AMD, 2011 MAR p. 1821, Eff. 9/9/11.

Mont. Admin. R. 20.9.320 Failure to Appear for Hearing

(1) If a youth released pending hearing fails to appear for the hearing, the parole officer shall issue a certificate to detain the youth. The department shall schedule and hold a hearing within 72 hours of the youth's detention.

History

Authorizing statute(s): 52-5-102, 52-5-129, MCA
Implementing statute(s): 52-5-102, 52-5-126, 52-5-127, 52-5-128, 52-5-129, MCA
History: NEW, Eff. 1/2/77; TRANS, from Dept. of Institutions, Ch. 609, L. 1987, Eff. 10/1/87; TRANS, 1996 MAR p. 1385; AMD, 2003 MAR p. 108, Eff. 1/31/03; AMD, 2011 MAR p. 1821, Eff. 9/9/11.

Subchapter 20.9.6 Licensure of Youth Detention Facilities

Mont. Admin. R. 20.9.601 Purpose

(1) These rules establish the licensing requirements and procedures for youth detention facilities and short-term detention facilities. Except where specifically noted, these rules apply to both types of facilities.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05.

Mont. Admin. R. 20.9.602 Definitions

The following definitions apply to all youth detention facility licensing rules:

(1) "Administrative segregation" means a method of housing and managing youth whose continued presence in the general population poses a serious threat to life, property, self, staff, or other youth.

(2) "Collocated facility" means a youth facility located in the same building as an adult jail or lockup, or is part of a related complex of buildings located on the same grounds as an adult jail or lockup. A complex of buildings is considered related when it shares physical features such as walls, fences, or services beyond mechanical services (heating, air conditioning, water and sewer), or is part of a related complex of buildings located on the same grounds as an adult jail or lockup.

(3) "Contraband" means any item possessed by a confined youth or found within the facility that is illegal by law or expressly prohibited by those legally charged with the administration and operation of the facility or program.

(4) "Delinquent youth" means a youth as defined by 41-5-103, MCA.

(5) "Department" means the Department of Corrections as provided for in 2-15-2301, MCA.

(6) "Detention" means placement by law of a youth in a detention facility.

(7) "Detention facility" means a facility as defined by 41-5-103, MCA.

(8) "Disciplinary detention" means a sanction which may be used when a youth commits a serious rule violation as defined by facility policy.

(9) "Facility" means youth detention facility or short-term detention facility.

(10) "Inflammatory agent" means a substance like oleoresin capsicum (OC), commonly called pepper spray, which is derived from the cayenne pepper plant and classified as an inflammatory agent that affects the mucous membranes and the upper respiratory system.

(11) "Intervention and restraint" means the least amount of direct physical contact required by a staff member using approved methods of making such physical contact to restrain a youth from harming self or others.

(12) "Licensing specialist" means the person designated by the department to perform licensing inspections, and to ensure that detention facilities comply with these rules.

(13) "Mechanical restraint" means handcuffs, belly chains, shackles, or leg irons.

(14) "Parent" means the natural or adoptive parent but does not include a person whose parental rights have been judicially terminated, nor does it include a putative father.

(15) "PREA" means Prison Rape Elimination Act.

(16) "Privileged correspondence" is correspondence between a youth and the youth's attorney, courts, government officials, facility director, or probation/parole

officers.

(17) "Secure observation" means placement of a youth in an assigned room for observation for the initial 24 hours of detention.

(18) "Serious incident" means:

(a) a suicide attempt;

(b) an allegation of abuse or neglect;

(d) sexual abuse/assault by another youth or staff;

(e) injury to a youth, staff, or visitor which requires hospitalization; or

(f) the death of a youth, staff, or visitor.

(19) "Short-term detention" means a facility as defined by 41-5-103, MCA.

(20) "Unencumbered space" means a measurement of square footage in a room or area obtained by multiplying the length and width of the cell/room and subtracting from that figure the total number of square feet encumbered by beds, plumbing fixtures, desks, lockers, and other fixed equipment.

(21) "Youth" means any person under the age of 18 years, without regard to gender or emancipation.

(22) "Youth in need of intervention" means a youth as defined in 41-5-103, MCA.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05; AMD, 2011 MAR p. 570, Eff. 4/15/11.

Mont. Admin. R. 20.9.603 Facility License

(1) Each youth detention facility operating within the state of Montana must be licensed by the department. The facility's current youth detention license must be publicly displayed at the facility.

(2) The department shall issue a one-year youth detention facility license to any state or private facility which meets the requirements established by these rules, as determined by the department after a licensing study.

(a) The department shall renew the license annually on the expiration date of the previous year's license if the facility:

(i) makes written application for renewal at least 30 days prior to the expiration date of its current license; and

(ii) continues to meet the licensing requirements established by these rules, as determined by the department after a relicensing study.

(b) If a facility makes timely application for renewal of a license, but the department fails to complete the relicensing study before the expiration date of the previous year's license, the previous year's license will continue in effect for the time necessary for the department to complete the relicensing study.

(3) The department may, in its discretion, issue a provisional license for any period up to six months to any license applicant which:

(a) has met all applicable requirements for fire safety and health standards; and

(b) has agreed in writing to comply fully with all requirements established by these rules within the time period covered by the provisional license.

(4) The department may, in its discretion, renew a provisional license if the license applicant shows good cause for failure to comply fully with all of the requirements within the time period covered by the prior provisional license. The total time period covered by the initial provisional license and renewals may not exceed one year.

(5) Within 30 days of receipt of a written licensing inspection report, the facility shall provide to the department a written response to the report which includes a plan to correct any deficiencies identified by the inspection and the time frame for correcting the deficiencies.

(6) The facility may not detain more youth at one time than the number specified on the license except as stipulated in these rules.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05.

Mont. Admin. R. 20.9.604 Licensing Procedures

(1) Application for a youth detention facility license must be made on an application form provided by the department.

(2) Upon receipt of an application for license or renewal of license, the department shall conduct a licensing study to determine if the applicant meets applicable licensing requirements established in these rules. A licensing study must include an on-site visit for review of incident reports, logs, portions of the employee record as listed in ARM 20.9.610, policies and procedures, other written rules, as well as interviews with detained youth and staff members.

(3) If the department determines that an application or accompanying information is incomplete or erroneous, it will notify the applicant, in writing, of the specific deficiencies or errors, and the applicant shall submit the required or corrected information within 30 days of receipt of the written notice. The department may not issue a license or renew a license until it receives all required or corrected information.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05.

Mont. Admin. R. 20.9.605 License Revocation and Denial

(1) The department, after written notice to the applicant or licensee, may deny, suspend, restrict, revoke or reduce to provisional status a license upon finding that the facility:

(a) is not in compliance with fire safety requirements;

(b) is not in substantial compliance with any other licensing requirements established by these rules;

(c) has made any misrepresentations to the department, either negligent or intentional, regarding any aspect of its operations or facility;

(d) has failed to take corrective action when a staff member has been found guilty of a criminal offense;

(e) has failed to report an incident of abuse or neglect within the facility to the county attorney, the department of corrections and the department of public health and human services as required by 41-3-201 , MCA; or

(f) has failed to comply with its plan to correct areas of noncompliance identified by an inspection as required in ARM 20.9.604.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05.

Mont. Admin. R. 20.9.606 Hearing

(1) Any applicant or licensee who is dissatisfied because of the department's action refusing to grant a license, restricting, suspending a license, reducing to provisional license or revoking a license may request a hearing as provided in 2-4-601 , MCA.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05.

Mont. Admin. R. 20.9.607 Confidentiality, Disposition, and Dissemination of Records and Information

(1) Records maintained by a facility may be released to the following:

(a) the youth court and its professional staff;

(b) representatives of any agency providing supervision and having legal custody of a youth;

(d) any court and its probation and other professional staff or the attorney for a convicted party who had been a party to proceedings in the youth court when considering the sentence to be imposed upon the party;

(e) the county attorney;

(f) the youth who is the subject of the report or record, after emancipation or reaching the age of majority;

(g) a member of a county interdisciplinary child information team formed under 52-2-211, MCA, who is not listed in this rule;

(h) members of a local interagency staffing group provided for in 52-2-203, MCA;

(i) persons allowed access to the records referred to under 45-5-624, MCA;

(j) persons allowed access under 42-3-203, MCA; and

(k) the licensing specialist for purposes of licensing only. The licensing specialist shall keep confidential any information identifiable to a particular youth.

(2) Facility record keeping must meet state and federal records requirements, and facility policy must provide:

(a) an orderly system of recording, managing and maintaining youth records;

(b) that all electronic or paper records are marked confidential and kept in secure files to safeguard against unauthorized or improper use or disclosure; and

(3) Each facility must remove and destroy all Department of Corrections and Youth Court records from a youth's file when the youth reaches the age of 18. All detention facility documents may be kept according to facility policy in accordance with 41-5-216, MCA.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-216, 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05; AMD, 2011 MAR p. 570, Eff. 4/15/11.

Mont. Admin. R. 20.9.608 Reports

(1) The facility shall submit to the department, upon its request, any reports required by federal or state law or regulation.

(2) The facility shall report any of the following changes to the department prior to the effective date of the change:

(a) a change of director;

(b) a change in location;

(d) a significant change in the organization, administration, purposes, programs, or services.

(3) Staff members shall report within 24 hours any incidents of known or suspected child abuse or neglect to the local and state offices of the department of public health and human services, to the department of corrections, and to the county attorney in the county where the facility is located.

(a) Each facility shall require each staff member to read and sign a statement annually which outlines the state law on child abuse and neglect and the staff member's responsibility to report all incidents of child abuse or neglect according to state law.

(b) Each facility shall cooperate fully in the investigation of any incident of suspected child abuse or neglect.

(i) a procedure for ensuring that the staff member involved does not have contact with the youth involved until the investigation is completed; and

(ii) a procedure for disciplining any staff member involved in an incident of child abuse.

(d) For the protection of youth in detention, whenever a staff member is alleged to have committed sexual or physical abuse, the facility shall take appropriate employment action and ensure the staff member has no contact with the youth pending the final outcome of the allegations.

(4) Any serious incident involving a youth must be reported within the next working day to the parent, the juvenile probation officer and the licensing specialist.

(a) The facility shall complete a written incident report concerning any serious incident involving a youth. The report must include the date and time of the incident, the youth involved, the nature of the incident, description of the incident, and the circumstances surrounding it.

(b) A copy of the report must be filed at the facility, and a copy must be sent to the licensing specialist.

(5) Disasters or emergencies which require closure of the facility must be reported to the licensing specialist within the next working day.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05.

Mont. Admin. R. 20.9.609 Escapes

(1) Escapes must be reported immediately to law enforcement, the youth's probation officer, parent or legal guardian, and licensing specialist.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2011 MAR p. 570, Eff. 4/15/11.

Mont. Admin. R. 20.9.610 Administration

(1) Each facility shall be purchased, leased, or otherwise provided for by one or more counties.

(a) The facility shall ensure that the county commissioners provide for inspection of the facility annually. Inspection must include but is not limited to health, fire safety, security, rehabilitation programs, recreation, treatment of youth and personnel training.

(2) The facility must not be used for the confinement of youth in need of care, persons who have attained the age of 18, or youth who have been criminally adjudicated. If a youth turns 18 years of age while in the facility, the youth may no longer be held in the youth detention facility. The facility will be allowed 24 hours to move the youth.

(3) The facility must have written policies and procedures which describe the purpose, programs and services offered by the facility. Such written policies and procedures must include:

(a) admissions, including the requirement that the facility only admit youth considered appropriate as defined in such policy;

(b) medical care;

(d) discipline;

(e) recreation;

(f) food;

(g) clothing;

(h) visiting;

(i) transportation;

(j) mail;

(k) religious services;

(l) grievances;

(m) discharge;

(n) access by media;

(o) fiscal management;

(p) an organizational chart; and

(q) personnel consistent with these rules.

(4) The facility must have written personnel policies and procedures which govern:

(a) job qualifications, descriptions and responsibilities;

(b) employee grievance procedure;

(d) record keeping;

(e) leave;

(f) work hours;

(g) salary;

(h) disciplinary procedures;

(i) staff training;

(j) equal opportunity employment provisions;

(k) retirement; and

(l) resignation and termination.

(5) All policies and procedures must be explained to each new staff person prior to the person having direct contact with youth in the facility. A copy of all policies and procedures must be made available to each employee at the time of employment and be continually available thereafter. The policies and procedures must be developed in consultation with employees, and may include other persons deemed relevant by the facility director.

(6) The facility shall maintain a current and accurate record for each employee. The record must include:

(a) qualifications;

(b) background investigation report;

(d) orientation and training record; and

(e) written disciplinary actions which involve abuse, neglect, safety, security or constitutional issues.

(7) The facility shall investigate the personal and employment references of each staff prior to hiring.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05.

Mont. Admin. R. 20.9.611 Fiscal Management

(1) The facility or county commissioners must have written procedures which govern fiscal management consistent with accepted accounting practices.

(2) All financial records must be retained for three years and subject to audit in accordance with accepted auditing procedures.

(3) The facility shall show proof of institutional insurance coverage, including at a minimum fire, public liability, worker's compensation, and civil liability for employees.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05.

Mont. Admin. R. 20.9.612 Management, Staff, and Training

(1) Each facility must have a director or program manager to whom all employees or units are responsible and who has responsibility and accountability for the day-to-day operations of the facility.

(a) The director must have the following qualifications:

(i) a bachelor's degree supplemented with experience working with youth or appropriate graduate education, or an equivalent combination of education and experience;

(ii) a thorough understanding of the purposes and programs of youth detention facilities in general;

(iii) general leadership, administrative, and management ability, including the ability to supervise youth care personnel; and

(iv) have or attain within three months of beginning employment a thorough working knowledge of the Youth Court Act and related laws of Montana regarding law enforcement, apprehension and detention of youth, and the youths' rights under the law.

(2) Each short-term detention facility must have an identified program manager to whom all employees are responsible and who has responsibility and accountability for the day-to-day operations of the facility.

(a) The program manager must have the following qualifications:

(i) a bachelor's degree or at least three years' experience in a supervisory position involving human services responsibility;

(ii) a thorough understanding of the purposes of the facility; and

(iii) general leadership, administrative, and management ability.

(3) The facility shall employ, train, and supervise an adequate number of staff in order to provide continuous awake supervision of youth and at least one immediately available staff member of the same gender as the youth.

(a) The minimum ratio of staff on duty to numbers of youth must be:

(i) 1:8 from 7:00 a.m. to 11:00 p.m. with a minimum of two staff; and

(ii) 1:12 from 11:00 p.m. to 7:00 a.m. An additional designated staff person must be available onsite for backup at all times.

(b) No staff member or other person having direct contact with the youth in the facility shall conduct themselves in a manner which poses any potential threat to the health, safety, or well-being of the youth in detention.

(4) All youth care facility staff must meet the following general qualifications on their first day of employment:

(a) relevant experience working with youth;

(b) be at least 18 years of age;

(c) have successfully passed background checks by both law enforcement and the Child Protective Services Division of the Department of Public Health and Human Services;

(d) be physically, mentally, and emotionally competent to care for youth; and

(e) understand the purpose of the youth detention facility and be willing to carry out its policies and programs.

(5) Written policy, procedure, and practice must provide that:

(a) each new employee receive 40 hours of orientation training before undertaking assignments;

(b) each new juvenile detention officer in the first year of employment complete 120 hours of training as defined by American Correctional Association (ACA) standards and applicable Montana law;

(d) cardiopulmonary resuscitation (CPR) and First Aid training be accomplished annually by each youth care staff member in addition to the required 20 hours of annual training.

(6) Orientation training must include, at a minimum, the following:

(a) certification in CPR;

(b) purpose, goals, policies, and procedures of the facility;

(d) employees' rights and responsibilities;

(e) emergency response procedures;

(f) suicide risk and assessment;

(g) first aid;

(h) overview of juvenile justice system;

(i) youth rights;

(j) training in intervention and restraint;

(k) communicable diseases and blood-borne pathogens;

(l) the provisions of the Montana Youth Court Act; and

(m) PREA.

(7) All training must be documented in each staff member's personnel file.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05; AMD, 2011 MAR p. 570, Eff. 4/15/11.

Mont. Admin. R. 20.9.613 Environment

(1) The facility shall provide an adequate and potable supply of water.

(a) The facility shall:

(i) connect to a public water supply system approved by the Montana Department of Environmental Quality; or

(ii) for a facility utilizing a nonpublic water system, follow and conform to all Montana Department of Environmental Quality rules, regulations, and standards for small water systems.

(b) If a nonpublic water supply is used, the facility shall submit a water sample at least once a quarter (January 1 - March 31, April 1 - June 30, July 1 - September 30, and October 1 - December 31) to a laboratory licensed by the Montana Department of Public Health and Human Services for a coliform bacteria test of the system and a nitrate test of the system at least once every three years. Bacteriological testing of a water supply must be in accordance with ARM 17.38.215.

(i) Sampling results must be kept at the facility and a copy of the results provided to the department and the local Montana Department of Public Health and Human Services.

(ii) Sampling result records must be retained for a minimum of three years.

(c) The water system is determined to have failed and to require replacement, repair, or disinfection when the water supply becomes unsafe (exceeds maximum contaminant levels as specified in ARM 17.38.201 through 17.38.207) or inadequate (less than 20 psi measured at the extremity of the distribution line during peak usage).

(d) Extension, alteration, repair, and replacement of a water supply system, or development of a new water supply system must be in accordance with the Montana Department of Environmental Quality regulations.

(e) Plumbing must be installed and maintained in a manner which prevents cross connections between the potable water supply and any nonpotable or questionable water supply or any source of pollution through which the potable water supply might become contaminated. The potable water system must be installed to preclude the possibility of backflow. A hose shall not be attached to a faucet unless a backflow prevention device is installed.

(f) Facilities must follow and conform to all Montana Department of Environmental Quality rules and regulations relating to review procedures and testing requirements.

(2) An adequate and safe sewage system must be provided for conveying, treating, and disposing of all sewage. Immediate measures must be taken to alleviate health and sanitation hazards caused by sewage at the youth detention facility.

(a) To ensure sewage is safely disposed of, the facility shall either:

(i) connect to a public sewer approved by the Montana Department of Environmental Quality; or

(ii) if a nonpublic system is utilized, follow and conform to all applicable Montana Department of Environmental Quality standards, rules, and regulations.

(b) The sewage system must be repaired or replaced whenever:

(i) it fails to accept, treat, or dispose of sewage as designed;

(ii) seepage of effluent from or ponding of effluent on or around the system occurs;

(iii) contamination of a potable water supply or state waters is traced to the system; or

(iv) a mechanical failure occurs, including electrical outage, or collapse or breakage of a septic tank, lead line, or drain field line.

(c) Extension, alteration, replacement, or new development of any sewage system must be in accordance with all applicable rules, regulations, and standards of the Montana Department of Environmental Quality.

(d) Liquid wastes from sinks, showers, toilets, or baths are not allowed to accumulate on the ground surface. Such waste must be discharged into the sewage system approved by the Montana Department of Environmental Quality or the local health authority.

(3) The facility shall:

(a) store all solid waste in containers which have lids and are corrosion-resistant, flytight, watertight, and rodent proof;

(b) clean all solid waste containers frequently; and

(c) transport or utilize a private or municipal hauler to transport the solid waste at least weekly to a landfill site approved by the Montana Department of Environmental Quality or a local solid waste district in a covered vehicle or covered containers.

(4) Bathtubs, showers, lavatories, urinals, toilet bowls, toilet seats, and floor areas must be cleaned thoroughly with an approved disinfectant or sanitizing agent daily.

(5) Other areas must be cleaned on a regular basis. All furnishings, fixtures, floors, walls, and ceilings must be clean and in good repair.

(6) There must be hot and cold water available in the facility. Hand sinks must be provided with water at a temperature not more than 120°F. Bathing facilities must be provided with water at a temperature of at least 100°F and not more than 120°F. Youth should be encouraged to shower or bathe at least three times per week.

(7) Laundries operated in conjunction with, or utilized by the youth detention facility must be provided with a mechanical washer and hot air tumble dryer and a hot water supply system capable of supplying water at a temperature of 130°F to the washer during all periods of use.

(a) Sheets, pillow cases, towels, and washcloths must be machine washed at a minimum temperature of 130°F for a minimum time of eight minutes and dried in a hot air tumble dryer or ironed to a minimum temperature of 150°F. Appropriate detergents and sanitizers must be used.

(b) Separate areas for sorting and storing soiled laundry and folding and storing clean laundry must be provided.

(d) All bedding, towels, and washcloths provided by the youth detention facility must be clean and in good repair. Clean, laundered bed sheets and pillow cases must be provided on each bed and must be replaced by clean, freshly laundered sheets and pillow cases after the departure of each youth and prior to occupancy by the next youth. Clean bedding and linens must be available to each youth at least weekly or more often, as necessary.

(8) The facility and all areas used by youth must have an adequate ventilation and heating system and adequate lighting (as determined by the tasks to be performed).

(9) Cleaning compounds and pesticides must be stored, used, and disposed of in accordance with the manufacturer's instructions. Material Safety Data Sheet (MSDS) book must be maintained and updated.

(10) Facilities and premises must be kept free of harborage for insects, rodents, and other vermin. The facility shall have a plan for the control of vermin and pests which includes monthly inspections. If fumigations are necessary, they must be done by a licensed pest control professional.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05; AMD, 2011 MAR p. 570, Eff. 4/15/11.

Mont. Admin. R. 20.9.614 Nutrition and Food Safety

(1) The facility must have written policy, procedure, and practice requiring food service staff to develop advanced, planned menus and substantially follow the schedule. In the planning and preparation of all meals, the staff shall take into consideration food flavor, texture, temperature, appearance, and palatability.

(2) Youth must be given three well-balanced meals daily, as well as supplemental snacks appropriate to the nutritional needs of the youth.

(3) Written policy, practice, and procedure must provide for special diets as prescribed by appropriate medical or dental personnel. Such orders must be kept on file at the facility.

(4) Written policy, procedure, and practice must specify that the food services comply with the applicable sanitation and health codes as promulgated by federal, state, and local authorities.

(5) Written policy, procedure, and practice must provide for adequate health protection for all youth and staff in the facility and youth and other persons working in food service, including the following:

(a) where required by the laws and/or regulations applicable to food service employees in the community where the facility is located, all personnel involved in the preparation of food shall be free of diarrhea, skin infections, and other illness transmissible by food or utensils;

(b) when the facility's food services are provided by an outside agency or individual, the facility must have written verification that the outside provider is in compliance with state and local regulations regarding food service;

(c) all food handlers shall wash their hands with warm water and soap before handling food upon reporting to duty and after using toilet facilities;

(d) youth and other persons working in food service must be monitored each day for health and cleanliness by the director of food services or designee; and

(e) use of home canned products is prohibited.

(6) Copies of menus as served must be kept on file for at least three months and be available for inspection.

(7) Menus and records of meals served must be reviewed at least annually by a dietician or nutritionist to verify that the meals provide nutrition adequate for youth between the ages of 10 and 18. The facility shall maintain documentation of the dietitian's or nutritionist's review and verification. Subsequent menus must be promptly revised to eliminate any deficiencies noted.

(8) Food service equipment, facilities, practices, and procedures must meet the requirements of ARM Title 37, chapter 110, subchapter 2, Food Service Establishments.

(9) The department of public health and human services may allow a deviation from (4) above after the youth detention facility submits to the department:

(a) a written application that demonstrates to the department that the deviation requested does not have the potential to cause adverse public health effects; and

(b) a written plan that describes management practices or procedures that will assure food safety related to the deviation request.

(10) If the youth detention facility food service is provided by a contractor, then the contractor shall provide proof it has a current food establishment license issued by the department of public health and human services.

(11) The department hereby adopts and incorporates by reference the provisions of ARM Title 37, chapter 110, subchapter 2 which sets forth the requirements for food service establishments. Copies of the above rules may be obtained from the Food and Consumer Safety Section, Department of Public Health and Human Services, PO Box 202951, Helena, MT 59620-2951.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05.

Mont. Admin. R. 20.9.615 Physical Plant

(1) A facility shall comply with the following structural requirements:

(a) all rooms and hallways must have adequate lighting;

(b) adequate space must be provided for all phases of daily living, including recreation, privacy, group activities and visits;

(c) detention facilities must have indoor areas of at least 35 square feet of floor space per youth for quiet, reading, study, relaxing, and recreation. Halls, kitchens, and any rooms not used by youth may not be included in the minimum space requirement; and

(d) in detention facilities constructed or remodeled after the adoption of these rules, sleeping areas must contain at least 35 square feet of unencumbered space per youth. Facilities in operation prior to the adoption of these rules must contain at least 30 square feet of floor space per youth.

(2) Collocated facilities, where a youth facility is collocated with an adult facility, shall provide for sight and sound separation of youth and adult detainees. In addition:

(a) collocated facilities shall ensure that written operational plans, policies and procedures are in place to ensure that no contact between youth and adult detainees occurs;

(b) recreational and admission areas used for both adult and youth must be closely regulated by time phasing to prevent contact between adult and youth;

(d) only staff providing specialized services such as cooks, maintenance staff, medical professionals and bookkeepers, whose infrequent contact with detainees occurs under conditions of separation of youth and adult detainees, may serve both populations; and

(e) the day-to-day management and functions of youth detention facilities must be vested in separate staff who, where they serve both youth and adult populations, are trained to serve youth. Except for emergency circumstances, staff whose duties include in whole or in part the provision of direct care to youth may not be used to serve the adult jail at the same time or during the same tour of duty that they serve in the juvenile detention facility.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05.

Mont. Admin. R. 20.9.616 Fire Safety

(1) The facility shall conform to applicable federal, state, and/or local fire safety codes. Compliance must be documented by the authority having jurisdiction. A fire alarm and automatic detection system are required and must be approved by the authority having jurisdiction.

(2) Written policy, procedure, and practice must specify the facility's fire prevention regulations and practices. These must include but are not limited to the following:

(a) provision for an adequate fire protection service;

(b) a system of fire inspection and testing of equipment at least quarterly or at intervals approved by the authority having jurisdiction, following the procedures stated for variances, exception, or equivalencies;

(d) availability of fire protection equipment at appropriate locations throughout the facility.

(3) Written policy, procedure, and practice must provide for a comprehensive and thorough weekly inspection of the facility by a designated staff member for compliance with safety and fire prevention standards. This policy and procedure must be reviewed annually and updated as needed.

(4) The facility must have documentation showing that specification for the selection and purchase of facility furnishings indicate the fire safety performance requirements of the materials selected.

(5) Facilities must be designated and maintained as smoke-free buildings. Special containers must be provided for flammable liquids, for rags used with flammable liquids, and for other combustible refuse. All receptacles and containers must be emptied and cleaned daily.

(6) The facility must have written policy, procedure, and practice governing the control and use of all flammable, toxic, and caustic materials.

(7) The facility must have a written evacuation plan prepared in the event of fire or major emergency that is certified by an independent, outside inspector trained in the application of appropriate codes. The plan must be reviewed annually, updated as needed, and reissued to the local fire jurisdiction. The plan must include the following:

(a) location of building/room floor plan;

(b) use of exit signs and directional arrows for traffic flow;

(d) monthly drills in all occupied locations of the facility; and

(e) staff drills when evacuation of dangerous residents is not permitted.

(8) All facility personnel must be trained in the implementation of written emergency plans.

(9) Written policy, procedure, and practice must specify the means for the immediate release of youth from locked areas in case of emergency and provide for a backup system.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05; AMD, 2011 MAR p. 570, Eff. 4/15/11.

Mont. Admin. R. 20.9.617 Safety and Security

(1) Each youth must be physically observed at intervals no more than 15 minutes apart.

(a) The facility shall implement a means of recording the daily population of youth in the facility. The means of such recording must be written in policy. The policy must ensure compliance with the requirement that the population of youth be recorded daily.

(2) A youth giving indications of self destructive tendencies or exhibiting behavior suggesting possible medical problems must be monitored more regularly.

(3) The facility must have written policies and procedures for security and control which are in accordance with recognized ACA standards. These must include:

(a) searches of residents, their rooms or property;

(b) control of contraband;

(d) key, tool, utensil and cutlery control;

(e) visitation;

(f) emergency procedures;

(g) preventing escapes;

(h) staffing; and

(i) locking of doors.

(4) Staff members shall control security measures, and must not permit youth to assist with these security measures.

(5) Procedures must provide for regular and frequent inspections and maintenance of all security devices, locks, and doors to ensure their proper working order and to detect escape efforts. Any damaged or nonfunctioning security equipment must be promptly repaired.

(6) All living and sleeping areas must be kept free of bars, grates, hooks, or any other physical features which may reasonably be expected to present a suicide risk to youth.

(7) Procedures must provide that, except in emergency situations, weapons including those of law enforcement personnel, are not permitted beyond a designated area to which detained youth have no access.

(8) Every facility shall implement policies and procedures for tool control, confidentiality requirements, and limitations on youth interactions whenever maintenance workers or other nonstaff members are admitted to the facility.

(9) Facility procedures must provide for reporting escapes or runaways.

(10) Procedures must provide for a plan to be followed in emergency situations (e.g., fire, disturbance, taking of hostages, and natural disasters) which must be made available to all personnel.

(11) Work stoppage and riot/disturbance plans may be communicated only to appropriate supervisory or other personnel directly involved in the implementation of those plans.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05; AMD, 2011 MAR p. 570, Eff. 4/15/11.

Mont. Admin. R. 20.9.618 Searches

(1) All policies and procedures on searches must, at a minimum, follow ACA standards.

(2) Although control of weapons and contraband is essential to the order and security of the detention facility, indiscriminate searches of youth are prohibited. Searches of a youth, the youth's possessions, room, or other areas of the facility are permitted only when there is sufficient reason to believe that the security of the facility is endangered or that contraband is present in the facility.

(3) A search policy must be established and made available to both staff and youth. The search policy must be reviewed at least annually and updated as needed.

(4) Searches may be performed for the following reasons:

(a) to prevent the introduction of weapons or other dangerous contraband into the facility;

(b) to detect the manufacture of weapons, escape devices, etc., within the facility;

(d) to check malicious waste or destruction of facility property; and

(e) to discover hazards to health or safety that may go unnoticed during routine inspections.

(5) Searches of youth may be performed only by properly trained personnel of the same gender.

(6) Strip searches may be performed upon entry to the facility or when there is reason to believe that weapons or contraband will be found.

(a) Strip searches are to be performed visually and in an area that ensures privacy.

(b) Clothing should be searched carefully and returned to the youth as soon as possible.

(7) A body cavity search must be authorized by the facility director or designee and will be done only when there is probable cause that weapons or contraband will be found.

(a) Only trained medical staff (e.g., a doctor or nurse) may perform a body cavity search.

(b) A body cavity search must be fully documented by medical staff. Copies of the documentation must be placed in the youth's file and a copy must be maintained at the facility.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05; AMD, 2011 MAR p. 570, Eff. 4/15/11.

Mont. Admin. R. 20.9.619 Admission

(1) The facility shall obtain, in writing, the youth's court order or consent decree for the detention of a youth or a consent adjustment, or a written authorization for the detention of the youth from a law enforcement officer, probation officer (or designee of such probation officer), department representative enforcing a youth parole agreement, or other lawful authorizing documentation for detention of the youth under the requirements of the Montana Youth Court Act.

(2) Any youth held in detention must be between the ages of 10 and 18 years, may not be seriously mentally ill, exhibiting current symptoms that require acute hospitalization, or be criminally adjudicated.

(3) A youth who has been placed in detention may not be held longer than 24 hours, excluding weekends and legal holidays, unless a hearing has been held by the court to determine whether there is probable cause to believe the youth is a delinquent youth or a youth in need of intervention.

(a) The facility shall record the specific charges, date, and time of probable cause hearing.

(b) A parole youth who has been placed in detention may not be held longer than ten days, excluding weekends and legal holidays, unless a parole violation hearing has been held.

(4) The facility shall develop written policy and procedures governing the admission and orientation, and secure observation of admitted youth which include the following requirements:

(a) a staff member of each gender must be available or on call at all times to receive youth for detention;

(b) staff members accepting youth for detention shall determine that the youth is being held under proper legal authority, and the identity of the youth being admitted must be verified as soon as possible;

(d) the youth's personal property, if removed, must be properly itemized, signed for by the youth and staff, and held safely. The youth must be advised that all personal belongings will be returned to the youth when the youth leaves, with the exception of illegal contraband or evidence;

(e) upon admission a youth may be segregated from other youth and placed under secure observation for a maximum of 24 hours for the purpose of assessment and evaluation;

(f) at a minimum the facility shall provide new youth the following:

(i) a set of standard facility clothing or uniform;

(ii) fire-retardant mattress;

(iii) pillow and pillow case or integrated pillow/mattress system;

(iv) two sheets, or one sheet and one mattress cover;

(v) sufficient blankets to provide comfort under existing temperature conditions; and

(vi) one clean towel.

(g) youth uniforms must be laundered or exchanged at least twice a week. The youth's own clothing must be laundered and safely stored.

(5) The facility shall provide youth, without charge, with the following articles necessary for maintaining personal hygiene:

(a) soap;

(b) toothbrush;

(d) comb;

(e) products for female hygiene needs;

(f) deodorant; and

(g) hand towel.

(6) The youth's physical and emotional condition must be noted and recorded, along with identifying data, under the facility admittance form which must be completed upon admission of the youth. Facility admittance forms, as a minimum, must also allow for the recording of the following information:

(a) court case number, corrections juvenile offender number, child and adult

protective services (CAPS) number or other approved automated system number and facility admission number;

(b) date and time of admission;

(d) last known address;

(e) name of attorney (if any);

(f) specific charges;

(g) gender, race;

(h) date and place of birth;

(i) health status;

(j) property inventory;

(k) emergency contact number of parent or guardian;

(l) emergency contact number of placing agency;

(m) a violence risk assessment;

(n) PREA screening; and

(o) suicide risk screening by nationally recognized assessment screening tool.

(7) The admitting staff member shall inquire into and examine the youth for any obvious injuries, medical tags, rashes, unusual cough or high temperature and determine, by questioning, if there are medical problems, including drug or alcohol abuse, asthma, diabetes, epilepsy, mental distress, suicidal thoughts, or other conditions which require medical attention.

(a) If in the judgment of the facility director or designee, a youth has an untreated physical or mental condition or disorder, or is under the influence of drugs or alcohol, the facility may deny admission of the youth.

(b) Any prescription medication in the possession of a youth at admission must be labeled for identification and determination must be made at the earliest possible time regarding the need for its continued use by contacting the prescribing health care professional. A written record of the diagnosis, treatment, and medication prescribed must be maintained in the facility files.

(8) Staff shall contact parents or other responsible persons as soon as possible following the detaining of the youth. Verification of such contacts or attempted contacts must be recorded in writing.

(9) If a youth is hungry at admission, the youth must be given sufficient food to sustain the youth until the next regular meal.

(10) After a youth has been admitted, showered, issued clothing and other essentials, but prior to disciplinary action or integration with other youth and within 24 hours of admission, the youth shall receive orientation and a printed copy of the detention facility rules and youth rights.

(a) Staff shall explain or clarify the contents of the material, especially for:

(i) youth who do not have adequate reading or comprehension skills;

(ii) disabled youth; and

(iii) youth who do not speak English.

(b) Completion of orientation must be documented by a statement that is signed and dated by the youth.

(11) A record for each youth must be established at admission and must be maintained throughout the period of detention.

(12) Facility policy and procedure must grant all youth the right to make at least two local or long-distance telephone calls to family members, attorneys, or other approved individuals at some time during the admission process.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05; AMD, 2011 MAR p. 570, Eff. 4/15/11.

Mont. Admin. R. 20.9.620 Rights of Youth

(1) The facility shall implement the following policies and procedures governing the rights of youth which must be in accordance with ACA standards, and must include:

(a) the facility's written grievance procedure for youth and the youth's right to make requests or complaints to the facility's administration without censorship;

(b) a provision that youth have the right to determine the length and style of their hair, including facial hair except when a valid security interest justifies otherwise; and

(c) a provision that a youth has the right to be separated from the general population insofar as space and staffing patterns permit.

(2) A notice containing facility rules and youth's rights must be accessible to all youth.

(3) The facility may require a detained youth to perform housekeeping functions such as necessary housekeeping in the youth's own room and assisting with general housekeeping duties in the living unit except that:

(a) youth may not have primary responsibility for any phase of operation such as cooking, laundry, housekeeping, or maintenance work which is the duty of regular staff;

(b) assignments must be made in relation to the age and abilities of the youth;

(d) work assignments may not include areas to which youth do not have regular access;

(e) staff are responsible for the safety of youth while they are near equipment and machinery; and

(f) youth may not perform any work prohibited by state and federal regulations and statutes pertaining to child labor.

(4) No facility may discriminate against any youth based on race, religion, national origin, gender, handicap, political belief, or sexual orientation.

(5) Youth will be offered at least one hour of large muscle exercise during each 24-hour period.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05; AMD, 2011 MAR p. 570, Eff. 4/15/11.

Mont. Admin. R. 20.9.621 Communication/Mail

(1) The facility must have written policies and procedures governing correspondence which must be in accordance with ACA standards. The policies and procedures must include the following:

(a) the facility may routinely screen and refuse mail going to or incoming from another correctional or detention facility unless it is from a member of the youth's immediate family;

(b) the facility may refuse any incoming mail from a youth who was released from any facility, placement, correctional facility and/or program within 30 days prior to the date of the correspondence;

(d) appropriate stationery, envelopes, and a writing implement must be supplied;

(e) written policy and procedure must specify that youth are permitted to send sealed letters to a specified class of persons and organizations and privileged correspondence including but not limited to courts, counsel, officials of the confining authority, administrators of grievance systems, and members of the releasing authority;

(f) youth have the right to communicate or correspond with persons or organizations subject only to the limitations necessary to maintain facility order and security;

(g) youths' mail, both incoming and outgoing, may be opened and inspected for contraband. Mail may be read, censored, or rejected when based on legitimate facility interest of order and security. The youth must be notified when incoming or outgoing letters are withheld in part or in full;

(h) incoming correspondence may be opened and inspected for cash, checks, or money orders. Receipt of all cash, checks, and money orders sent to youth must be documented and the money retained for the youth in accordance with the written procedures of the facility; and

(i) youth shall not be denied mail rights for disciplinary purposes.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05; AMD, 2011 MAR p. 570, Eff. 4/15/11.

Mont. Admin. R. 20.9.622 Visitation and Telephone Use

(1) The facility shall adopt policies and procedures governing visitation in accordance with ACA standards including the following requirements:

(a) Youth have the right to receive visits subject only to the limitations necessary to maintain facility order and security.

(b) A facility shall permit informal communication between youth and visitors, including opportunity for physical contact. Physical contact may be restricted, on a case-by-case basis, if it is determined to compromise the facility's security.

(c) All visitors shall register their name and relationship to youth. A "search notice" sign which advises visitors of the policy provisions regarding visitation must be conspicuously posted and pointed out to all visitors.

(d) Youth must be searched after each contact visit.

(e) The visiting area must be thoroughly searched before and after each visiting period.

(f) During a visit, there must be a system for staff to observe youth and visitors at all times.

(2) The facility shall adopt policies and procedures governing telephone use which must include the following:

(a) The facility must be equipped with a telephone.

(b) Emergency telephone numbers must be posted by each telephone.

(c) Youth must be permitted reasonable and equitable access to the telephone according to the facility's policy which may establish hours of availability and time limits.

(d) Youth must have access to telephone contact with their attorneys at reasonable times at facility expense. These telephone calls must be confidential.

(e) Youth must have access to a telephone for calls made upon admission as provided in ARM 20.9.619 and for other approved calls.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05.

Mont. Admin. R. 20.9.623 Health Care

(1) Written policy, procedure, and practice must provide that the facility has a designated health authority with responsibility for health care pursuant to a written agreement, contract, or job description.

(a) The health authority may be a physician, physician assistant, nurse practitioner, health administrator, or health agency. When the authority is other than a physician, final medical judgments must rest with a single designated physician.

(2) Written policy, procedure, and practice must provide that treatment by health care personnel other than a physician, dentist, psychologist, optometrist, podiatrist, or other independent provider is performed pursuant to or ordered by personnel authorized by law to give such orders. Nurse practitioners and physician's assistants may practice within the limits of applicable laws and regulations.

(3) Written policy, procedure, and practice must provide for the proper management of pharmaceuticals and address the following subjects:

(a) prescription practices;

(b) procedures for medication receipt, storage, dispensing, and administration or distribution;

(d) dispensing of medicine in conformance with appropriate federal and state laws;

(e) administration of medication must be by licensed personnel only; otherwise, the system of self-administration must be utilized and approved by the health authority at the facility; and

(f) accountability for administering or distributing medications in a timely manner and according to physician's orders.

(4) Written policy, procedure, and practice must require medical, dental, and mental health screening to be performed by health-trained or qualified health care personnel on all youth on arrival at the facility. All findings must be recorded on a form approved by the health authority and placed in the youth's file. The screening form must include at least the following:

(a) inquiry into:

(i) current illness and health problems, including sexually transmitted diseases and other infectious diseases;

(ii) dental problems;

(iii) mental health problems including suicidal thoughts;

(iv) use of alcohol and other drugs, including types of drugs used, mode of use, amounts used, frequency of use, date or time of last use, and a history of

problems that may have occurred after ceasing use (e.g., convulsions);

(v) past and present treatment or hospitalization for mental disturbance or suicide attempts; and

(vi) other health problems designated by the responsible physician.

(b) observation of:

(i) behavior, which includes state of consciousness, mental status, appearance, conduct, tremor, and sweating;

(ii) body deformities, ease of movement, etc.; and

(iii) condition of skin, including trauma markings, bruises, lesions, jaundice, rashes and infestation, and needle marks or other indications of drug abuse.

(i) general population;

(ii) general population with appropriate referral to health care service; or

(iii) referral to appropriate health care service for emergency treatment.

(5) Written policy, procedure, and practice must provide for 24-hour emergency medical, dental, and mental health care availability as outlined in a written plan that includes arrangements for the following:

(a) on-site emergency first aid and crisis intervention;

(b) emergency evacuation of the youth from the facility;

(d) use of hospital emergency rooms or other appropriate health facilities;

(e) emergency on-call physician, dentist, and mental health professional services when the emergency health facility is not located in a nearby community; and

(f) security procedures providing for the immediate transfer of youth, when appropriate.

(6) Written policy, procedure, and practice must provide that direct care staff and other personnel are trained to respond to a health-related emergency within a four-minute response time. A training program must be established by the facility director under the supervision of and in cooperation with the responsible health authority. The plan must include the following:

(a) recognition of signs and symptoms and knowledge of action required in potential emergency situations;

(b) administration of first aid and CPR;

(d) signs and symptoms of mental illness, retardation, and chemical dependency; and

(e) procedures for patient transfers to appropriate medical facilities or health care providers.

(7) There must be a written suicide prevention and intervention program that is reviewed and approved by a qualified medical or mental health professional.

(a) The program must include specific procedures for intake/admission screening, identification, and supervision of youth identified as potentially suicidal.

(b) All staff with responsibility for youth supervision must be trained in the implementation of the program.

(8) Written policy must prohibit the use of youth for medical, pharmaceutical, or cosmetic experiments. Policy may not preclude individual treatment of a youth based on the youth's need for a specific medical procedure that is not generally available.

(9) Written policy and procedures must require that information about access to health care services be communicated both orally and in writing to youth upon arrival at the facility.

(10) Written policy and defined procedures require that sick call be conducted by a physician or other qualified health personnel and be available to each youth according to the following schedule:

(a) in small facilities of fewer than 25 youth, sick call is held once per week, at a minimum; and

(b) in medium-sized facilities of from 25 to 100 youth, sick call is held at least three days per week.

(11) If a youth's condition or status precludes attendance at sick call, the facility must make arrangements to provide sick call services to the youth.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05; AMD, 2011 MAR p. 570, Eff. 4/15/11.

Mont. Admin. R. 20.9.624 Services and Programs

(1) This rule applies to provision of services to all youth who remain in detention beyond ten days.

(2) A range of resources should be provided to meet the needs of youth, including individual and family counseling and community services.

(a) Youth should be afforded access to mental health counseling and crisis intervention services in accordance with their needs.

(b) Psychiatric, psychological, medical, and other diagnostic services, as determined by the youth court, must be available to every youth either provided directly by the facility or by contracting with an outside agency or licensed provider which provides such services.

(3) The facility must have a recreational program.

(a) There must be opportunities for exercise and leisure time activity. All youth must be permitted and encouraged to participate in recreation.

(b) No youth may be required or forced to participate in recreational activities.

(4) Procedures must allow youth to participate in religious services and counseling within the facility on a voluntary basis. All youth must have the opportunity to voluntarily practice their respective religions and to receive visits from representatives of their respective faiths within the limits imposed by safety and security restrictions.

(5) The facility shall provide library services which are available to all youth.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05; AMD, 2011 MAR p. 570, Eff. 4/15/11.

Mont. Admin. R. 20.9.625 Education

(1) A detention facility licensed by the department shall provide each youth detained for 10 or more consecutive days with the opportunity for education.

(2) A licensed facility must have written policies and procedures governing education which include at a minimum:

(a) An educational policy for the facility that provides the youth with:

(i) educational rights under Montana and federal law, including the Individuals with Disabilities Education Act; and

(ii) the opportunity to participate in an educational program. At the discretion of the facility, this program may be provided in conjunction with cooperating school districts or may be provided by the facility.

(b) A description of the facility's procedures for:

(i) obtaining youths' prior educational records;

(ii) assessing youths' educational needs;

(iii) providing youth with educational programs appropriate to their knowledge, skills and abilities;

(iv) maintaining the youths' educational records while at the facility; and

(v) transferring records to educational agencies when requested.

(d) A description of the in-facility education services, location, materials, teaching staff, etc., if no education release policy exists.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2006 MAR p. 677, Eff. 12/23/05.

Mont. Admin. R. 20.9.626 Over Capacity

(1) Each facility must have an over capacity plan which must be in accordance with the facility's policies and procedures, and must be approved by the facility director or program manager. The plan must provide for the following:

(a) the nature of the offense of the youth who will cause the facility to go over capacity, and the nature of the offense of the youth already in the facility;

(b) reasonable efforts must have been made to place youth at another facility;

(d) the staff-to-youth ratio must be maintained; and

(e) the facility may not go over capacity if it will jeopardize the safety and security of the youth detained or the facility.

(2) The plan must be documented to the licensing agent.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05.

Mont. Admin. R. 20.9.627 Discipline

(1) The facility shall use appropriate forms of discipline but may not use any form of corporal punishment or any other technique which is humiliating, shaming or otherwise damaging to youth.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05.

Mont. Admin. R. 20.9.628 Intervention and Restraint

(1) The facility shall provide training in intervention and restraint to all staff members who may be required to use intervention and restraint. The facility shall provide at least yearly refresher courses.

(2) Intervention and restraint of a youth may only be used to end a disturbance by a youth that immediately threatens physical injury to the youth, other persons, or property.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05.

Mont. Admin. R. 20.9.629 Administrative Segregation and Disciplinary Detention

(1) Each facility which uses administrative segregation or disciplinary detention must have written policies governing these practices which comply with ACA standards.

(2) Administrative segregation may be used as a measure for behaviors by a youth such that the youth's continued presence in the general population poses a serious threat to life, property, self, staff, or other youth. Protective custody may be used for youth requesting or requiring protection from other youth.

(3) Disciplinary detention may be used to control a youth found to have committed a serious rule violation and may only be utilized for a maximum of 23 hours per day. Youth in disciplinary detention must be provided with an opportunity of at least one hour of large muscle exercise per day. No youth may be held for longer than four consecutive days. Facility policy must identify acts which are considered to be serious rule violations.

(4) The youth must be provided a due process disciplinary hearing within 48 hours when placed in disciplinary detention.

(5) Each facility which utilizes disciplinary detention shall have written policies which describe, at a minimum:

(a) the criteria for use of disciplinary detention;

(b) the procedure for a due process hearing; and

(c) the procedure by which a youth can appeal the findings of a due process hearing to the facility director or designee.

(6) Records of the use of disciplinary detention, the youth's records, staff records and the room must be made available to the department for inspection.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05.

Mont. Admin. R. 20.9.630 Mechanical Restraint

(1) Each facility which utilizes mechanical restraint must have a written statement of its policies.

(2) The use of four or five-point restraints is prohibited in youth detention facilities.

(3) The use of mechanical restraint may only be permitted to transport youth or to control aggressive or assaultive behavior that is a clear and present danger to the youth, other youth, staff, property damage, or the safety and security of the facility.

(4) The facility shall not:

(a) deny food to a youth who is mechanically restrained; or

(b) subject a youth to corporal punishment or abusive or degrading treatment.

(5) Mechanical restraint may not be used for punishment, for the convenience of staff, or as a substitute for programming.

(6) Whenever mechanical restraint is used, for any purpose other than transportation, an incident report which documents all relevant information must be entered into the youth's case record.

(a) The information contained in (6)(b)(i) through (iv) must be sent to the licensing specialist within 24 hours of the incident excluding weekends and legal holidays.

(b) The information contained in the incident report must include but need not be limited to the following:

(i) the specific behavior that necessitated the use of mechanical restraint;

(ii) alternative interventions that were unsuccessful in controlling the youth's behavior;

(iii) authorization by the director or designee;

(iv) the time and date that the use of mechanical restraint began and ended; and

(v) monitoring reports, with observations and notations regarding the youth's physical and emotional condition, at no greater than 15-minute intervals.

(7) The following procedures and conditions must be observed whenever the use of mechanical restraint on a youth is implemented:

(a) authorization for the use of mechanical restraint must be provided by the facility director or designee;

(b) the use of mechanical restraint must be for the minimum period of time necessary to enable the youth to gain control of the youth's behavior and if in excess of one hour, the youth must be evaluated by a mental health professional;

(c) while in mechanical restraints, the youth shall remain under constant direct visual observation by a staff person. The staff person may have no duties or responsibilities other than the supervision of the youth;

(d) the staff person shall ensure that the physical needs of the youth are met promptly;

(e) mechanical restraint must be applied in a manner to minimize the risk of injury to the youth or the staff person responsible for supervising the youth;

(f) mechanically restraining a youth to a stationary object is prohibited; and

(g) a youth who requires a mechanical restraint in excess of one hour must have a mental health report attached to the incident report.

(8) A log recording all incidents where mechanical restraint was used except for the purpose of transportation must be maintained by the facility director. Information contained in the log must include but need not be limited to the following:

(a) the youth's name;

(b) the date and time period over which mechanical restraint was used;

(d) the signature of the director or designee who authorized the use of mechanical restraint.

(9) Facility staff must be trained by a Peace Officer Standard Training (POST) certified trainer in the use and effects of mechanical restraint.

(10) The use of mechanical restraints during transportation is permitted. The mechanical restraints should be applied so as to minimize the discomfort of such devices. Lap and shoulder restraints which are part of a vehicle's safety equipment must be worn at all times during transportation.

(11) The youth's probation officer or referring agency must be notified whenever mechanical restraints are used.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05; AMD, 2011 MAR p. 570, Eff. 4/15/11.

Mont. Admin. R. 20.9.631 Inflammatory Agent

(1) Each facility which utilizes inflammatory agents must have a written procedure which includes:

(a) inflammatory agents may only be permitted when a lesser degree of force is not effective to prevent serious injury to youth or staff, or to ensure the safety and security of the facility;

(b) inflammatory agents may be used only by employees specifically trained by a certified oleoresin capsicum trainer in its use and effects upon youth; and

(c) inflammatory agents may not be used for punishment, for the convenience of staff, or as a substitute for programming.

(2) The following procedures and conditions must be observed whenever the use of inflammatory agents on a youth is implemented:

(a) authorization for the use of inflammatory agents must be provided by the facility director or designee;

(b) youth subjected to inflammatory agents who suffer from burning to the eyes, nose, mouth and other exposed skin areas must be removed from the contaminated environment as soon as possible;

(c) youth who have been subjected to inflammatory agents must be allowed to shower and change clothes once they are under staff control;

(d) youth or other individuals exposed to an inflammatory agent must be examined by a health care employee as soon as possible. If there are any persistent symptoms, the youth must be monitored until no further effects or symptoms remain; and

(e) cells and other areas exposed to an inflammatory agent must be decontaminated pursuant to accepted decontamination procedures.

(3) Policy must contain the manner of response to cross contamination and evacuation procedures for uninvolved youth.

(4) Whenever inflammatory agents are used, an incident report must be entered in the youth's case record, and a copy must be sent to the licensing specialist within 24 hours of the incident excluding weekends and legal holidays. The information contained in the incident report must include but need not be limited to the following:

(a) the specific behavior that necessitated the use of an inflammatory agent;

(b) alternative interventions that were unsuccessful in controlling the youth's behavior;

(d) the time and date that the agent was used; and

(e) decontamination procedures followed.

(5) The youth's probation officer or referring agency must be notified whenever an inflammatory agent is used.

(6) Protective devices must be available for facility staff in order to function in a contaminated area.

(7) A log recording all incidents where an inflammatory agent was used must be maintained by the facility. Information contained in the log must include but need not be limited to the following:

(a) the youth's name;

(b) the date and time used;

(d) the name of the director or designee who authorized the use of an inflammatory agent.

(8) Inflammatory agents must be stored and maintained in a locked area with access restricted to the director or designee.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05.

Mont. Admin. R. 20.9.632 Transfers

(1) Transfers to other facilities must be by youth court order or by other proper written authorization.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05.

Mont. Admin. R. 20.9.633 Transportation

(1) The facility must have policy and procedures for transportation of youth which are in accordance with good correctional practice and state and federal law.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05.

Mont. Admin. R. 20.9.634 Release

(1) A youth's release from or continuance in detention must be determined by proper authority.

(a) The youth court release from detention must be in writing and on file at the facility.

(b) If a release by the youth court is made by phone, it must be followed up by a written release no later than close of business the following business day.

(2) Procedures for the release of youth must include:

(a) verification of identity;

(b) verification of release papers;

(d) recording of the date, time, and authority;

(e) return of personal property and funds; and

(f) documentation of release or return of medication to the person authorized to receive physical custody of the youth.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 1999 MAR p. 121, Eff. 1/15/99; AMD, 2005 MAR p. 2665, Eff. 12/23/05.

Mont. Admin. R. 20.9.635 Prison Rape Elimination Act

(1) Each facility must have a written policy, procedure, and practice to ensure that information is provided to juveniles about sexual abuse/assault including:

(a) each policy, procedure, and practice will include information regarding:

(i) prevention/intervention;

(ii) self-protection;

(iii) reporting sexual abuse/assault; and

(iv) treatment and counseling.

(b) the information will be communicated orally and in writing, in a language clearly understood by the juvenile, upon arrival at the facility.

(2) Each facility must have procedures to assure that juveniles are screened at the facility, via review of records and face-to-face interview, for potential vulnerabilities or tendencies of acting out with sexually aggressive behavior. Housing assignments will be made accordingly.

(3) Each facility must have a written policy, procedure, and practice requiring that an investigation will be conducted and documented whenever a sexual assault is alleged, threatened, or occurs.

(4) Each facility must have a written policy, procedure, and practice requiring that juveniles identified as at-risk for sexual victimization are assessed by a mental health or other qualified professional. Such juveniles are identified, monitored, and counseled.

(5) Each facility must have a written policy, procedure, and practice to ensure that sexual conduct between staff and juveniles, volunteers and juveniles, and contract personnel and juveniles, regardless of consensual status, is prohibited and subject to administrative and criminal disciplinary sanctions.

(6) All occurrences or allegations of sexual assault shall be referred to an appropriate medical facility for clinical assessment and gathering of forensic evidence by professionals who are trained and experienced in management of victims of sexual assault. If these procedures are performed in-house, the following guidelines shall be used:

(a) provisions will be made for testing for sexually transmitted diseases (for example, HIV, gonorrhea, hepatitis, and other diseases) and release of information for purposes of medical management of both the victim and alleged perpetrator;

(b) a history will be taken by healthcare professionals who conduct an examination to document the extent of physical injury and to determine if referral to another facility is indicated. With the victim's consent, the examination includes collection of evidence from the victim, using a kit approved by the appropriate authority;

(c) prophylactic treatment and follow-up for sexually transmitted diseases will be offered to all victims, as appropriate, if not already done in the emergency room;

(d) follow-up by a mental health professional will be offered to assess the need for crisis intervention counseling and long-term follow-up; and

(e) a report will be made to the facility or program administrator or designee to assure separation of the victim from the youth's assailant.

(7) Each facility will have a written policy, procedure, and practice to provide that juveniles who are victims of sexual abuse and/or assault have the option to report the incident to a designated staff member other than an immediate point-of-contact line staff member.

(8) Each facility will have a written policy, procedure, and practice to provide that all case records associated with claims of sexual abuse and/or assault, including incident reports, investigative reports, juvenile information, case disposition, medical and counseling evaluation findings, and recommendations for post-release treatment and/or counseling are retained in accordance with an established schedule.

History

Authorizing statute(s): 41-5-1802, MCA
Implementing statute(s): 41-5-1802, MCA
History: NEW, 2011 MAR p. 570, Eff. 4/15/11.

Subchapter 20.9.7 Parole and Release of Youth

Mont. Admin. R. 20.9.701 Definitions

For the purposes of this subchapter, the following definitions apply:

(1) "Assigned juvenile parole officer" means the officer whom the Youth Services Division assigns to monitor the youth who enters a state youth correctional facility.

(2) "Department" means the Department of Corrections as authorized in 2-15-2301, MCA.

(3) "Discharge" means formal action taken by the department to relieve both the department and the youth court of jurisdiction over a youth who has been committed to department custody.

(4) "Facility" means a state youth correctional facility as defined in 41-5-103, MCA.

(5) "Length of stay" means the length of time a youth is incarcerated in a state youth correctional facility.

(6) "Parole" means release from a state youth correctional facility to the community, subject to supervision of the department.

(7) "Release" means the act of allowing the youth to leave the youth correctional facility to juvenile parole.

(8) "Secure facility emergency release" is a release granted by the superintendent of a state youth correctional facility because the population of the facility has exceeded the capacity of the facility.

(9) "Youth parole agreement" means a document containing the terms and conditions of the youth's release on parole.

History

Authorizing statute(s): 52-5-102, MCA
Implementing statute(s): 52-5-102, MCA
History: NEW, 1999 MAR p. 214, Eff. 1/29/99; AMD, 2001 MAR p. 672, Eff. 4/27/01; AMD, 2013 MAR p. 1337, Eff. 7/26/13.

Mont. Admin. R. 20.9.703 Length of Stay

(1) The youth correctional facility will determine a tentative length of stay for each youth who enters the facility. The length of stay establishes the tentative date upon which the facility will release the youth because the youth is suitable for and will be placed on juvenile parole.

(2) The facility will determine the tentative length of stay within the first 30 days the youth is admitted to the facility. The facility will inform the youth, the youth's parents or guardians, and the assigned juvenile parole officer of the length of stay the facility has established and the tentative release date.

(3) To determine the initial tentative length of stay the facility may consider any criteria deemed important, including but not limited to the following:

(a) the category of criminal offense or offenses the youth has committed; i.e., violent offense, crime against the person, property crime, sex offense, or misdemeanor offense;

(b) the number of offenses for which the youth has been adjudicated;

(d) the recommendations of the youth court.

(4) No less than quarterly, facility staff will reevaluate the length of stay for each youth at the youth's progress reviews.

(a) Facility staff may change the length of stay for the youth based on the youth's progress through the program and the youth's progress in treatment.

(b) If the facility changes the length of stay and tentative release date, staff will inform the youth, the youth's parents or guardians, and the assigned juvenile parole officer.

History

Authorizing statute(s): 52-5-102, 52-5-111, 52-5-126, 52-5-127, MCA
Implementing statute(s): 41-5-1513, 41-5-1522, 52-5-101, 52-5-102, MCA
History: NEW, 1999 MAR p. 214, Eff. 1/29/99; AMD, 2013 MAR p. 1337 Eff. 7/26/13.

Mont. Admin. R. 20.9.705 Procedures

(1) Each facility must have written procedures that govern length of stay. The procedures must be based on department policy and approved by the Youth Services Division administrator.

(2) The length of stay procedures must provide for the following:

(a) youth with similar delinquency histories and similar offenses will receive similar lengths of stay;

(b) a youth has incentives to demonstrate positive change so youth can shorten the assigned length of stay;

(d) the facility may take into consideration aggravating or mitigating factors which demonstrate the necessity of a longer or shorter length of stay.

(3) When a youth is granted a release to juvenile parole, facility procedures must require a youth to sign a youth parole agreement that contains:

(a) a statement of the terms and conditions of the youth's release, including a list of the acts that, if committed by the youth, could result in the youth's return to the facility;

(b) a statement that if the department alleges any violation of the terms and conditions of the agreement, the youth is entitled to a hearing as provided for in 52-5-129, MCA, before the department may return the youth to the facility; and

History

Authorizing statute(s): 52-5-102, MCA
Implementing statute(s): 52-5-102, 52-5-126, 52-5-129, MCA
History: NEW, 1999 MAR p. 214, Eff. 1/29/99; AMD, 2013 MAR p. 1337, Eff. 7/26/13.

Mont. Admin. R. 20.9.706 Determination of Capacity and Alternate Placement

(1) Annually, the department will determine the capacity for each state youth correctional facility. Each year when the department has determined the facility capacities, it will notify all district courts, sheriffs, and youth courts in the state of the capacity of each facility.

(2) When the population of a youth correctional facility exceeds its established capacity, the department director may declare that the facility has exceeded its capacity and stop admissions to the facility. If the director stops admissions to the facility, the department will notify each district court, sheriff, and youth court that the facility will not accept admissions until the population of the facility is less than the established capacity.

(3) During any time the department stops admissions to a facility, the department will find alternative placements for youth whom the courts commit to the department. Before the department places a youth in an alternative placement, it will inform the court that committed the youth and seek approval for the alternative placement. The department may not make the alternative placement without approval of the committing court.

History

Authorizing statute(s): 52-5-102, 52-5-105, MCA
Implementing statute(s): 41-5-355, 52-5-101, 52-5-102, MCA
History: NEW, 1999 MAR p. 214, Eff. 1/29/99; AMD, 2013 MAR p. 1337, Eff. 7/26/13.

Mont. Admin. R. 20.9.707 Release, Supervision Status Change, and Discharge of Youth

(1) The department will release a youth from a youth correctional facility when:

(a) the youth has spent the maximum amount of time in a youth correctional facility pursuant to 41-5-1522, MCA;

(b) the department places the youth on juvenile parole pursuant to a parole agreement; or

(c) the youth court order remands the youth back to youth court supervision once the adjudication to the department is completed.

(2) The department will change the supervision status of a youth when:

(a) the youth is transferred to supervision by adult probation/parole as a result of a transfer pursuant to 41-5-208, MCA; or

(b) the youth is no longer under the jurisdiction of the youth court, and will be supervised under an extended jurisdiction adjudication.

(3) The department will notify the youth court, in writing, that the department is releasing a youth from a youth correctional facility and inform the youth court of the date of release.

(4) The Department of Corrections will discharge a youth from department custody and supervision if:

(a) the youth has fulfilled the obligations of juvenile parole as established and assessed by the department;

(b) the youth has reached 18 years of age and the court order does not remand back to youth court for continued supervision to age 21; or

(c) the dispositional order that committed the youth to the department has expired because the order committed the youth for age certain.

(5) In reaching the decision to discharge a youth from department custody and supervision, the department will consider the recommendations of the youth court as expressed in the dispositional order.

(6) A discharge from the department terminates the jurisdiction of the youth court. The department will notify the youth court, in writing, when it discharges a youth from department custody or supervision.

(7) At least four weeks before a youth leaves a youth correctional facility, the department will notify any victims of a felony offense that have requested notification of the youth's release or discharge from the facility. Notification will be made in writing or by whatever other means the victim has specified.

History

Authorizing statute(s): 52-5-102, MCA
Implementing statute(s): 41-5-205, 41-5-1416, 41-5-1513, 41-5-1522, 46-24-213, 52-5-126, MCA
History: NEW, 2001 MAR p. 672, Eff. 4/27/01; AMD, 2013 MAR p. 1337, Eff. 7/26/13.

Subchapter 20.9.8 Confidentiality of Youth Records

Mont. Admin. R. 20.9.801 Definitions

As used in this subchapter, the following definitions apply:

(1) "Data" means any data related to the records maintained in any youth management information system developed by or used by the Department of Corrections Youth Services Division.

(2) "Department" means the Department of Corrections.

(3) "State enterprise technology policy" means an executive branch information technology policy published by the Department of Administration.

(4) "User ID" means a character string which identifies an individual to a computer system, enabling access and/or update capabilities.

(5) "Validation tables" means a mechanism to ensure that the data that are entered fall within specific boundaries. The table contains the only acceptable data that may be entered into the system so the person entering the data is restricted to enter only those words or numbers that are in the validation table.

(6) "Youth management information system" means the computer systems and staff who manage the systems in the Department of Corrections and which contain information and records involving the management of youth under supervision of the Department of Corrections.

(7) "Youth Services Division" means a division of the Department of Corrections consisting of juvenile corrections programs including Pine Hills Youth Correctional Facility, Riverside Youth Correctional Facility, and the Youth Community Corrections Bureau.

History

Authorizing statute(s): 41-5-220, MCA
Implementing statute(s): 41-5-220, 41-5-221, MCA
History: NEW, 2008 MAR p. 2053, Eff. 9/26/08.

Mont. Admin. R. 20.9.802 Youth Electronic Records

(1) The department will maintain an electronic youth management information system. The department will maintain the electronic youth management information system separate from any adult electronic management information system.

History

Authorizing statute(s): 41-5-220, MCA
Implementing statute(s): 41-5-220, 41-5-221, MCA
History: NEW, 2008 MAR p. 2053, Eff. 9/26/08.

Mont. Admin. R. 20.9.803 Integrity of Youth Electronic Records in Department Youth Management Information System

(1) To control the integrity of the information in the youth management information system, only authorized persons will be given the capability to enter data into the system as granted authorization by the Youth Services Division administrator or designee to enter data.

(2) Persons who are granted authorization to enter data will be specially trained by the department to enter correct data into the youth management information system.

(3) The statistics unit of the department will periodically run reports to validate the integrity of the information in the youth management information system. The statistics unit will identify missing or incomplete information with these reports.

(4) When a person enters or changes data in the youth management information system, the system will record the name and user identification of the person who entered or changed the data, and the date and time it was entered, changed, or deleted.

(5) The system will utilize validation tables whenever possible.

History

Authorizing statute(s): 41-5-220, MCA
Implementing statute(s): 41-5-220, 41-5-221, MCA
History: NEW, 2008 MAR p. 2053, Eff. 9/26/08.

Mont. Admin. R. 20.9.804 Security of Youth Electronic Records in Department Youth Management Information System

(1) To control the security of the information in the youth management information system, the Youth Services Division administrator or designee will give to the Information and Business Technology Bureau security officer(s) the names of persons who need access to the youth management information system. The Information and Business Technology Bureau security officer(s) or designee will grant or deny access to the persons whose names are forwarded. Upon recommendation of the Youth Services Division administrator or designee, the Information and Business Technology Bureau security officer(s) will remove or terminate previously granted access.

(2) The department's chief information officer may periodically review access that has been granted, denied, or terminated.

(3) Youth Services Division personnel who learn of or suspect a security breach in the youth management information system must report the security breach to the department's chief information officer.

(4) Any employee with access to the youth management information system who engages in unauthorized use, disclosure, alteration, or destruction of data will be subject to appropriate disciplinary action, including possible dismissal and legal action.

(5) The Information and Business Technology Bureau of the department is responsible for physical security and access control to the hardware that hosts the youth management information system.

(6) The Information and Business Technology Bureau of the department will secure back-up tapes off-site in compliance with state enterprise technology policy.

History

Authorizing statute(s): 41-5-220, MCA
Implementing statute(s): 41-5-220, 41-5-221, MCA
History: NEW, 2008 MAR p. 2053, Eff. 9/26/08.

Mont. Admin. R. 20.9.805 Confidentiality of Youth Electronic Records in Department Youth Management Information System

(1) The information in the youth management information system is confidential and shall not be disseminated to anyone outside the department unless specifically authorized by the Youth Services Division administrator or designee.

(2) Each individual who is granted access to the youth management information system shall be responsible for maintaining the confidentiality of the information.

(3) No statistical report the department prepares will contain any identifying information of a youth or any information that would allow identification of a youth.

History

Authorizing statute(s): 41-5-220, MCA
Implementing statute(s): 41-5-220, 41-5-221, MCA
History: NEW, 2008 MAR p. 2053, Eff. 9/26/08.

Chapter 20.12 Restitution

Subchapter 20.12.1 Collection and Disbursement

Mont. Admin. R. 20.12.101 Definitions

As used in this sub-chapter, the following definitions apply:

(1) "Administrative fee" means the cost of supervising the payment of restitution authorized by 46-18-201 , MCA.

(2) "Cost of collecting the payments for restitution" means the actual cost a collection agency under contract with the department incurs to collect restitution plus the 10% fee for the cost of supervising the payment of restitution for an offender whose criminal sentence has expired.

(3) "Department" means the department of corrections established in 2-15-2301 , MCA.

(4) "Felony offender" means a person who has been found guilty of a felony offense upon a verdict of guilty or a plea of guilty or nolo contendere, and whom a judge has ordered to pay restitution to a victim, including a juvenile convicted under 41-5-206 , MCA.

(5) "Inmate account" means the prison inmate trust account an incarcerated offender maintains pursuant to 53-1-107 , MCA.

(6) "Offender" has the same meaning as felony offender in (4) .

(7) "Restitution" means the amount of money a district court judge has ordered a felony offender to pay to a victim.

(8) "State prison" has the same meaning as found in 53-30-101 , MCA.

(9) "Victim" has the same meaning as found in 46-18-243 , MCA.

History

Authorizing statute(s): 46-18-241, 46-18-244, MCA
Implementing statute(s): 46-18-241, 46-18-244, 46-18-245, MCA
History: NEW, 2003 MAR p. 2432, Eff. 10/31/03.

Mont. Admin. R. 20.12.103 General Organization - Department Records

(1) The department shall maintain a victim's restitution fund to hold in trust all restitution payments made by or on behalf of offenders. The department shall maintain a special revenue account to hold administrative fees to pay for the cost to administer the restitution program.

(2) For each felony offender subject to a restitution judgment, the department shall maintain the following:

(a) a list of each cause number of each case for which a judge ordered the offender to pay restitution, and the amount the judge ordered the offender to pay in each case; and

(b) each payment the offender has paid and how the department applied it to the offender's outstanding restitution obligation.

(3) The department shall generate and submit quarterly reports to:

(a) the offender's supervising officer if the offender is under supervision of the adult probation and parole bureau; and

(b) the crime victim compensation program of the department of justice.

(4) The department shall give the department of revenue a copy of the restitution order to allow diversion of state and federal tax refunds to the department to meet the restitution obligation.

(5) The department shall notify the district court of record and the department of revenue when an offender has fully satisfied a court-ordered restitution obligation.

History

Authorizing statute(s): 46-18-241, MCA
Implementing statute(s): 46-18-241, 46-18-244, MCA
History: NEW, 2003 MAR p. 2432, Eff. 10/31/03.

Mont. Admin. R. 20.12.106 Collection of Restitution

(1) For offenders who are incarcerated in a state prison, prison officials may take up to 50% of money that enters an inmate's prison account to satisfy the offender's restitution obligation.

(2) The state prison shall withhold 15% of gross wages paid to an inmate in a federally certified prison industries program to satisfy unpaid restitution in the manner provided by these rules. If the obligation has been fully paid or no restitution was ordered, the department shall forward the amount to the crime victim compensation program in the department of justice.

(3) The state prison shall forward the restitution payment to the department's central office in Helena on a monthly basis.

(4) Offenders under supervision of adult probation and parole or a prerelease center shall submit restitution payments directly to the department in an amount determined by the offender's probation and parole officer or case manager in accordance with 46-18-244 (6) , MCA.

(5) Offenders who are not incarcerated in a state prison or youth correctional facility, or who are no longer under supervision by the state, shall continue to pay restitution and administrative fees directly to the department.

(6) Offenders shall send restitution payments by cashier's check or money order addressed to the Department of Corrections, Attn: Restitution, P.O. Box 201350, Helena, Montana 59620-1350. The department may accept checks from the prerelease centers on behalf of offenders who reside in the center or from an offender's employer pursuant to a garnishment order.

History

Authorizing statute(s): 46-18-241, MCA
Implementing statute(s): 46-18-241, 46-18-244, 46-18-245, MCA
History: NEW, 2003 MAR p. 2432, Eff. 10/31/03.

Mont. Admin. R. 20.12.109 Referral to Collection Agency - Garnishment

(1) The department may refer outstanding restitution obligations for collection by a private collection agency or the department of revenue.

(2) The collection agents specified in (1) shall forward all money collected for restitution less the agency's actual costs of collection to the department.

(3) The department shall withhold an administrative fee of 10% of the payment it receives from a private agency or the department of revenue.

(4) Upon receipt of information that a person under the supervision of the department of corrections is entitled to receive money from any source, the department may request the office of victim services in the department of justice and the county attorney for the county in which the person was sentenced to petition the sentencing court to garnish the money for the payment of restitution, child support, and per diem costs of incarceration.

History

Authorizing statute(s): 46-18-241, MCA
Implementing statute(s): 46-18-237, 46-18-241, 46-18-244, MCA
History: NEW, 2003 MAR p. 2432, Eff. 10/31/03.

Mont. Admin. R. 20.12.111 Department Payments to Victims

(1) The department shall disburse victim restitution fund balances greater than $25 at least monthly. The department shall disburse fund balances of $25 or less on a quarterly basis.

(2) If the judgment does not specify the timing or sequence in which multiple victims are to receive restitution, the department shall pay victims by the most equitable method determined in the discretion of the department, following these general guidelines:

(a) for multiple restitution obligations of less than $500, the department shall distribute restitution payments in the order listed in the judgment until each victim's restitution is paid in full;

(b) for multiple restitution obligations greater than $500, the department shall distribute restitution payments to all individual victims on a prorated basis; and

(c) the department shall pay the crime victim compensation program, then any state or local government agency after all individual victims have received full restitution.

(3) If the offender owes restitution to victims in more than one judgment, in order of the date of the judgment, the department shall pay all victims in a prior judgment before addressing the obligations of a subsequent judgment.

(4) If the department is unable to locate a victim with an outstanding restitution obligation, the department shall forward the full amount of restitution to the Montana department of revenue to hold in an abandoned property account.

History

Authorizing statute(s): 46-18-241, MCA
Implementing statute(s): 46-18-241, 46-18-244, MCA
History: NEW, 2003 MAR p. 2432, Eff. 10/31/03.

Chapter 20.13 Offender Financial Transactions

Subchapter 20.13.1 Inmate Trust Accounts

Mont. Admin. R. 20.13.102 Inmate Trust Accounts

(1) The Department of Corrections has an inmate trust account system in which it has established non-interest bearing accounts for inmates.

(2) The department will account for all inmate funds in compliance with generally accepted accounting principles and discourage theft and the inappropriate use of cash that may present safety and security concerns within facilities.

(3) All money in the inmate's possession at intake, received while in state prison from approved correspondents, or earned from an inmate work assignment or hobby sales will be deposited in the inmate's trust account.

(4) The accounting unit will make deductions from money received for obligations under 53-1-107(2), MCA, prior to depositing the money in the inmate's trust account.

(5) When an inmate is released from a facility, the balance of the inmate's trust account will be returned to the inmate.

History

Authorizing statute(s): 53-1-107, MCA
Implementing statute(s): 53-1-107, MCA
History: NEW, 2017 MAR p. 294, Eff. 3/11/17.

Mont. Admin. R. 20.13.103 Inmate Worker Savings Subaccount

(1) Inmates incarcerated in a state prison shall be subject to a minimum 20% savings deduction from their monthly earnings, which will be held in trust for each inmate and accounted for in savings subaccounts on the department trust accounting system.

(2) The savings deduction will be applied to an inmate's monthly earnings after accounting for all mandatory obligations. If taking a monthly savings deduction will render the inmate indigent as defined in department policy, no savings will be deducted for that month.

(3) For purposes of this rule, "monthly earnings":

(a) include funds received from the department for education, treatment, or work assignments;

(b) exclude funds received from outside sources including family and proceeds from hobby sales.

(4) Funds transferred to savings subaccounts will not be subject to additional deductions for child support or other obligations under 53-1-107(2), MCA.

(5) An inmate serving a life sentence without the possibility of parole may request the department to return funds deducted from the inmate's earnings and set aside in the savings subaccount.

(6) Funds in the savings subaccount may be used prior to release to pay re-entry expenses. All re-entry expenses to be paid prior to an inmate's release must be requested by the inmate in writing and approved by a designated department employee.

(7) Upon release from custody, the department shall return the balance of an inmate's savings subaccount to the inmate.

History

Authorizing statute(s): 53-1-107, MCA
Implementing statute(s): 53-1-107, MCA
History: NEW, 2017 MAR p. 286, Eff. 3/11/17.

Mont. Admin. R. 20.13.108 Rental Vouchers – Offender Eligibility – Rental Voucher Disbursements

(1) Eligibility for rental voucher assistance to offenders re-entering the community on parole is based on the criteria in 46-23-1041, MCA and this rule.

(2) The term "unable to secure" suitable living arrangements, as used in 46-23-1041, MCA means that at the time of applying/being referred for rental voucher assistance, the offender has insufficient personal funds in the inmate trust account system (53-1-107, MCA) to pay:

(a) non-recurring re-entry expenses specified in (3); and

(b) three months of recurring monthly living expenses specified in (4).

(3) Non-recurring re-entry expenses are:

(a) street clothing;

(b) Montana driver license/ID fees;

(d) a telephone; and

(e) a landlord-required cleaning/damage deposit, if applicable.

(4) Recurring monthly living expenses are:

(a) food and housekeeping supplies;

(b) personal care;

(d) telephone service;

(e) vehicle fuel or city bus fare;

(f) utilities (water, sewer, gas, and electric);

(g) supervision fee; and

(h) child support – actual court ordered or CSED ordered.

(5) For purposes of calculating offender financial eligibility for rental voucher assistance under (3) and (4), the department will use:

(a) current data pertaining to the cost for Montana driver licenses/IDs found at: https://dojmt.gov/driving/driver-licensing/ ;

(b) current data pertaining to average fair market rent (FMR) for a one-bedroom unit in the Montana county where the offender will reside as set out in the Housing and Urban Development (HUD) Fair Market Rent (FMR) Documentation System found at: https://www.huduser.gov/portal/datasets/frm.html#YYYY . (Substitute current calendar year for YYYY); and

(c) current cost data from the U.S. Census Bureau's Consumer Price Indexes for all Urban Consumers (CPI-U) found at: https://www.census.gov/library/publications/2011/compendia/statab/131ed/prices.html .

(6) Subject to the requirements in (7), designated department staff shall refer all offenders reentering the community on parole to the department's programs and facilities bureau for a rental voucher eligibility determination using a form prescribed by the department. A determination of ineligibility based on the objective criteria set out in 46-23-1041, MCA and this rule, is not subject to the grievance procedure. The legislature intended that rental voucher assistance (SB 65 2017) not constitute a right or an entitlement program.

(7) Eligibility for rental voucher assistance requires that, subject to Board of Pardons and Parole approval of the offender's release plan, an offender be:

(a) sentenced to prison as defined in 53-30-101(3)(c), MCA, and reentering the community directly from prison; or

(b) a DOC commit incarcerated in a prison as defined in 53-30-101(3)(c), MCA, on a secure placement request and reentering the community directly from prison; or

(c) an offender reentering the community directly from a residential treatment program to which the offender was conditionally paroled from prison, i.e., paroled by the Board of Pardons and Parole on condition that the offender satisfactorily complete the residential treatment program.

(8) A referral for rental voucher assistance must be made before an offender specified in (7) is released from the prison facility on parole or on conditional parole. For inmates being released from the prison facility on conditional parole to a treatment facility for completion of the treatment program, the department may preliminarily determine rental voucher eligibility at the time the referral is received but defer making a final determination until the treatment program is satisfactorily completed and the department receives data/information pertaining to the offender's treatment completion and/or release plan that was unavailable for inclusion in the referral when made.

(9) An offender paroled from prison on condition of satisfactory completion of a pre-release program is not eligible for rental voucher assistance because pre-release is a residential program and participants are required to be gainfully employed and to save money for re-entry during their pre-release program participation.

(10) For purposes of this rule, "suitable housing" or "suitable living arrangements" means housing appropriate for long-term or permanent occupancy by a lessee having an arm's length relationship with a lessor. A sober living home may constitute "suitable housing" for a reentering offender diagnosed with a substance use disorder notwithstanding that the sober living home is operated as a membership organization and payment due from residents is termed a membership fee rather than rent. The terms "suitable housing" or "suitable living arrangements" do not include temporary respite housing such as homeless shelters, hotels, motels, or the home of a reentering offender's family member if the family member does not regularly rent the subject premises to non-relatives in arm's length transactions. An offender who is ineligible for rental voucher assistance due to the temporary nature of housing as described herein may qualify for transitional assistance. Transitional assistance differs from rental voucher assistance and is outside the scope of this rule.

(11) Rental vouchers shall be issued by the department directly to an eligible reentering offender's landlord on behalf of the offender. Rental vouchers may not be issued in advance, i.e., no more than one rental voucher for one month's rent may be issued and outstanding at any given time. The three-month maximum rental voucher benefit under 46-23-1041, MCA, is not a guarantee of three months' rent to the offender or to the landlord. An offender may become ineligible during the three-month period following re-entry by reason of revocation of the offender's community supervision or other circumstances. No landlord-tenant relationship or any other contractual relationship exists between the department and the landlord arising from issuance of rental vouchers on behalf of eligible offenders reentering the community. No agency relationship exists between the department and an eligible offender on whose behalf the department issues rental vouchers to landlords. The department is not liable for any delinquent rent, property damage, condition or cleanliness of the unit upon being vacated by an offender, theft of property, or other claims or demands of the landlord against the offender tenant. The department shall provide a written notice to prospective landlords on a form prescribed by the department containing information about the rental voucher program including the relevant parameters stated herein.

(12) Rental voucher payments made by the department on behalf of an eligible offender shall only be made upon the department's receipt of an invoice or statement clearly identifying the offender, the address of the offender's rental unit, and the landlord-lessor's mailing address to which rental vouchers shall be mailed.

(13) The rental voucher program applies only to the initial housing secured by an offender upon reentry to the community from prison or from a treatment program as provided in this rule, unless:

(a) the offender moves to a second housing unit before the three-month maximum voucher benefit period has been exhausted;

(b) there has been no gap between vacating the first housing unit and taking possession of the second; and

History

Authorizing statute(s): 46-23-1002, MCA
Implementing statute(s): 46-23-1002, 46-23-1041, MCA
History: NEW, 2020 MAR p. 577, Eff. 3/28/20.

Chapter 20.15 Clinical Services

Subchapter 20.15.1 Payment of Provider Claims at Medicaid Rate for Patients in Department of Corrections Custody

Mont. Admin. R. 20.15.101 Purpose

(1) The purpose of these rules is to implement 53-6-1312, MCA, which establishes the Medicaid schedule of rates as the reimbursement rates that the State of Montana (State) pays for health care services provided to an individual who does not qualify for Medicaid, Medicare, a health insurer, or another private or governmental program that pays for health care costs and is:

(a) in the custody of the Department of Corrections; or

(b) a resident, by commitment or otherwise, of the Montana State Hospital, the Montana Mental Health Nursing Care Center, the Montana Chemical Dependency Center, or the Montana Developmental Center.

(2) The State will process these health care claims through the Department of Public Health and Human Services' Medicaid claims processing agent.

History

Authorizing statute(s): 53-1-203, 53-6-1318, MCA
Implementing statute(s): 53-6-1312, MCA
History: NEW, 2016 MAR p. 313, Eff. 2/20/16.

Mont. Admin. R. 20.15.102 A Provider Must Enroll in Medicaid and Accept the Medicaid Reimbursement Rate to Receive Payment by State

(1) To receive payment from the State for health care services provided to an individual identified in 53-6-1312, MCA, a provider must:

(a) be enrolled as a Montana Medicaid provider;

(b) accept the Montana Medicaid rates as full payment for all health care services; and

(2) A provider who accepts an individual identified in 53-6-1312, MCA, as a patient is agreeing to accept the Medicaid rate as payment in full.

(3) In service settings where an individual identified in 53-6-1312, MCA, is accepted as a patient by a provider who arranges for services by other providers, all providers performing services are deemed to have accepted reimbursement from the State at the Montana Medicaid rates.

(4) A provider may not "balance bill" or seek payment in addition to, or in lieu of, the payment by the State. "Balance bill" means a provider bills the patient, or responsible party, the difference between the amount the state reimburses for services and what the provider chooses to charge.

History

Authorizing statute(s): 53-1-203, 53-6-1318, MCA
Implementing statute(s): 53-6-1312, MCA
History: NEW, 2016 MAR p. 313, Eff. 2/20/16.

Mont. Admin. R. 20.15.103 Provider Requirements

(1) Except for the administrative rules listed in (2), the provider requirements of ARM Title 37, chapter 85, subchapter 4, "Provider Requirements," apply to the delivery of health care services provided to an individual identified in 53-6-1312, MCA. For the purposes of this subchapter, a reference to "Montana Medicaid" or "Medicaid" in ARM Title 37, chapter 85, subchapter 4 is understood to mean payments made under 53-6-1312, MCA.

(2) The following administrative rules do not apply to providers receiving payment for services provided to an individual identified in 53-6-1312, MCA:

(a) ARM 37.85.407, Third Party Liability;

(b) ARM 37.85.411, Provider Rights;

(d) ARM 37.85.416, Statistical Sampling Audits.

(3) A provider who disputes a payment is entitled to an administrative hearing on the matter according to the procedures of the department responsible for payment. A provider who is aggrieved by a final written decision is entitled to a judicial review of the decision.

History

Authorizing statute(s): 53-1-203, 53-6-1318, MCA
Implementing statute(s): 53-6-1312, MCA
History: NEW, 2016 MAR p. 313, Eff. 2/20/16.

Mont. Admin. R. 20.15.104 Cost Sharing Does Not Apply

(1) The cost sharing requirements of ARM 37.84.108 and 37.85.204 do not apply to the individuals identified in 53-6-1312, MCA. An individual identified in 53-6-1312, MCA, is neither a member nor a program participant as defined at 53-6-1302, MCA.

History

Authorizing statute(s): 53-1-203, 53-6-1318, MCA
Implementing statute(s): 53-6-1312, MCA
History: NEW, 2016 MAR p. 313, Eff. 2/20/16.

Chapter 20.25 Board of Pardons and Parole

Subchapter 20.25.1 Organization

Mont. Admin. R. 20.25.101 Organization of the Board

(1) The board is a quasi-judicial body for the purpose of 2-15-124, MCA, except that board members are full-time employees and are compensated in accordance with 46-23-104 and 46-23-111, MCA. Terms of board members are staggered in accordance with 2-15-2405, MCA, and the provisions of 2-15-124(1), MCA do not apply to the board. The board is allocated to the Department of Corrections for administrative purposes only under 2-15-121 and 2-15-2305, MCA.

(2) The board chair is specifically designated by the Governor in accordance with 2-15-124, MCA. The governor may designate a different presiding officer at any time and the former presiding officer will continue to serve as a board member unless removed for cause pursuant to 2-15-124(6), MCA. The chair may designate another board member to assume the duties of the chair when the chair is not present.

(3) Individual board members shall, prior to hearing a case, disclose any conflict of interest and recuse themselves in cases in which it has been determined that a conflict of interest is clearly identified.

(4) The board will conduct hearings weekly and transact business daily. The board may conduct meetings and hearings at any location suitable for that purpose.

(5) The board chair or designee, in consultation with the board members:

(a) assigns hearing panels to conduct parole hearings, revocation hearings, rescission hearings, administrative parole reviews, reconsideration of previous parole decisions, and to make recommendations in matters of executive clemency;

(b) requests out-of-state adult correctional releasing authorities to conduct courtesy hearings on behalf of the board; and

(6) The vote of at least a majority of all members of the board is required to adopt any change in established rule, policy, and/or procedure, unless otherwise provided by law.

(7) The board will set hearing and meeting dates suitably in advance and publish them on the board's official web site, but the dates are subject to change.

(8) The board chair, in consultation with the board, will maintain, review, and update at least annually a written description and an organizational chart that accurately reflects the structure of authority, responsibility, and accountability within the board.

History

Authorizing statute(s): 46-23-218, MCA
Implementing statute(s): 2-15-121, 2-15-124, 2-15-2302, 2-15-2405, 46-23-104, 46-23-111, MCA
History: Eff. 12/31/72; AMD, 1978 MAR p. 1552, Eff. 12/1/78; AMD, 1993 MAR p. 297, Eff. 2/26/93; AMD, 1994 MAR p. 168, Eff. 1/28/94; AMD, 1999 MAR p. 290, Eff. 2/12/99; AMD, 2010 MAR p. 2816, Eff. 12/10/10; AMD, 2012 MAR p. 1619, Eff. 8/10/12; AMD, 2016 MAR p. 139, Eff. 1/23/16; AMD, 2022 MAR p. 1194, Eff. 7/9/22.

Mont. Admin. R. 20.25.102 Board Training

(1) All board members shall receive training in accordance with 46-23-218, MCA, that addresses the disproportionate representation of American Indians in the legal custody of the department.

(2) Board members may attend nationally recognized correctional training or a comparable program for parole board members.

(3) Before participating on a hearing panel, a new board member must receive orientation from board staff or board member regarding:

(a) state and federal law and rules pertinent to board operations;

(b) offender pathology, treatment, and supervision including American Indian issues as related to each; and

(4) The board will develop, evaluate, and update training curricula annually based on the board's needs.

History

Authorizing statute(s): 46-23-218, MCA
Implementing statute(s): 46-23-218, MCA
History: NEW, 2004 MAR p. 1621, Eff. 7/23/04; AMD, 2010 MAR p. 2816, Eff. 12/10/10; AMD, 2022 MAR p. 1194, Eff. 7/9/22.

Mont. Admin. R. 20.25.103 Dissemination of Information

(1) The department and board shall keep a record of the board's acts and decisions in accordance with 46-23-110 and 46-23-1025, MCA. A recording may not personally identify the victim without the victim's consent.

(2) Members of the public may request a copy of the public records of the board as provided in 2-6-1003, 2-6-1006, 2-6-1007, and 46-23-110, MCA. The board may assert an individual's privacy interest on their behalf relating to content that implicates personal privacy or safety interests that clearly exceed the merits of public disclosure. The information will not be released.

(3) The board may limit the time and place that records may be inspected or copied in accordance with 46-23-110, MCA.

(4) The board may not withhold from public scrutiny any more information than is required to protect an individual privacy interest.

(5) Whenever a crime victim asserts an individual privacy interest, the board may not disseminate to the public the name, address, telephone number, or place of employment of the victim or a member of the victim's family unless otherwise required by law.

(6) The board may not disseminate to the public any information directly or indirectly identifying the victim of the following sex crimes:

(a) 45-5-502, MCA (Sexual Assault);

(b) 45-5-503, MCA (Sexual Intercourse Without Consent);

(d) 45-5-507, MCA (Incest);

(e) 45-5-702, MCA (Trafficking);

(f) 45-5-703, MCA (Involuntary Servitude);

(g) 45-5-704, MCA (Sexual Servitude); or

(h) 45-5-705, MCA (Patronizing Victim of Sexual Servitude).

(7) When releasing board records the board chair will consult with board legal counsel as necessary.

(8) An offender may request to view his/her individual parole file by making a request in writing. Board staff will provide the offender an opportunity to inspect the file except for information deemed confidential. An offender may not request to view his/her file any more frequently than annually unless extenuating circumstances exist. If the offender making the request has previously reviewed his/her file, only the information added to the file since the previous review will be provided unless the offender presents circumstances that justify a complete review.

History

Authorizing statute(s): 46-23-218, MCA
Implementing statute(s): 2-6-1003, 2-6-1006, 2-6-1007, 44-5-311, 46-18-243, 46-23-110, 46-23-218, 46-23-1025, MCA
History: NEW, 2010 MAR p. 2816, Eff. 12/10/10; AMD, 2012 MAR p. 1619, Eff. 8/10/12; AMD, 2022 MAR p. 1194, Eff. 7/9/22.

Subchapter 20.25.2 Objectives of Release

Mont. Admin. R. 20.25.201 Objectives

(1) The principal objective of the board is to affect the release from confinement of appropriate eligible offenders before the completion of the full term of commitment while still fully protecting society. A hearing panel may only grant a release when, in the panel's opinion, there is a reasonable probability it can release the offender without detriment to the offender or the community. When a hearing panel grants a release the offender is subject to the conditions imposed by the panel and the supervision authorized by governing statutes, rules, and policies of the department. The board will conduct business fairly and consistently and the board's hearing panels will base decisions on public safety concerns, successful offender reentry, and sensible use of state resources.

(2) An offender must serve the statutorily or court-imposed amount of time before the board may consider the offender for release. Release before the offender serves the entire sentence is a privilege, not a right. A hearing panel may only grant a release for the best interest of society and when the panel believes the offender is able and willing to fulfill the obligations of a law-abiding citizen and not as an award of clemency or a reduction of sentence or pardon.

(3) The board's primary responsibility in making decisions about parole is public safety. The board applies Montana law in affording offenders with impartial hearings, respecting offender rights, and considering the safety of victims and the public.

(4) Board members and designated staff will participate in federal, state, and regional criminal justice planning efforts and meet periodically with relevant criminal justice personnel.

History

Authorizing statute(s): 46-23-218, MCA
Implementing statute(s): 46-23-201, MCA
History: Eff. 12/31/72; AMD, 1978 MAR p. 1552, Eff. 12/1/78; AMD, 1993 MAR p. 297, Eff. 2/26/93; AMD, 1994 MAR p. 168, Eff. 1/28/94; AMD, 1999 MAR p. 290, Eff. 2/12/99; AMD, 2010 MAR p. 2816, Eff. 12/10/10; AMD, 2012 MAR p. 1619, Eff. 8/10/12; AMD, 2022 MAR p. 1194, Eff. 7/9/22.

Subchapter 20.25.3 Eligibility for Parole Consideration

Mont. Admin. R. 20.25.305 Eligibility

(1) An offender in a state prison, the state hospital, the Montana Developmental Center, or the Montana Mental Health Nursing Care Center, or an offender who is sentenced to the state prison or committed to the department and who has been transferred from the prison to a prerelease center, or a youth who was sentenced to prison pursuant to 41-5-206, MCA, and is confined in a youth correctional facility is eligible for parole unless the offender is under a sentence of death, the sentencing court has made the offender ineligible for parole, or the offender is ineligible for parole by operation of statute. The department shall receive parole eligibility dates for eligible offenders as calculated by the department pursuant to statutory and court-imposed criteria.

(a) An offender committed to the department and placed in prison temporarily for assessment or medical treatment is not eligible for parole.

(b) An offender against whom a detainer or hold is filed is eligible for parole.

(c) An offender committed to the director of the Department of Public Health and Human Services pursuant to 46-14-312, MCA, is only eligible for parole when the offender is placed at the Montana State Hospital or in a prison.

(2) If the offender receives a consecutive sentence after reception at prison, but before a hearing panel makes an initial ruling on the offender's parole on the original sentence, parole eligibility is determined on the statutory or court-imposed criteria based on the aggregate sum of the original sentence and the consecutive sentence.

(3) If the offender receives a consecutive sentence after reception at prison and after a hearing panel makes an initial ruling on the offender's parole on the original sentence, the offender will not be eligible for parole on the consecutive sentence until the offender discharges the original sentence, unless a hearing panel orders otherwise. However, the offender remains eligible for parole consideration in regard to the original sentence. A hearing panel may allow commencement of the consecutive term for purposes of calculating parole eligibility. If a hearing panel allows commencement of the consecutive term, it only changes the parole eligibility calculation, but does not shorten the consecutive term.

(4) An offender who waives his/her parole hearing will have a mandatory parole hearing within six months unless an extended period is necessary as determined by facility staff and approved by board staff, for a period not to exceed one year. The hearing month will be automatically set and the offender will come before a regularly scheduled hearing panel, unless the offender requests a hearing prior to this date and provides at least 30 days written notice to the board. The board, through its staff, will review all waivers for legitimacy and may accept or reject any waiver. An offender may voluntarily waive two consecutive parole hearings for up to 12 months each time.

(5) Unless a hearing panel otherwise orders, before an offender in a community-based program appears before the board, the offender must have at least 90 days free of severe (Class 100) or major (Class 200) disciplinary violations. An offender in a secure facility must have 120 days free of major disciplinary violations.

(6) Unless a hearing panel otherwise orders, an offender incarcerated at a prison must be classified and have been living in an assigned housing unit for a minimum of 60 days before the offender may appear for parole consideration.

History

Authorizing statute(s): 46-23-218, MCA
Implementing statute(s): 46-23-201, 46-23-218, MCA
History: NEW, 2010 MAR p. 2816, Eff. 12/10/10; AMD, 2012 MAR p. 1619, Eff. 8/10/12.

Mont. Admin. R. 20.25.306 Parole Plan

(1) The board through its pre-parole program, will make available to offenders a copy of a packet outlining the parole process and the recommended parole release plan.

(2) Each offender who applies for a grant of parole should prepare a comprehensive release plan for the panel's consideration. The parole plan should include the following:

(a) the offender's proposed living situation;

(b) the offender's proposed gainful employment or other suitable means of support, or a training or schooling program;

(d) the offender's proposed budget for payment of court-ordered fines, fees, restitution, and other financial obligations including child support.

(3) Substantial changes in the parole plan that is submitted at the time of the parole hearing must be reviewed and approved by the hearing panel.

History

Authorizing statute(s): 46-23-218, MCA
Implementing statute(s): 46-23-215, 46-23-216, MCA
History: Eff. 12/31/72; AMD, 1978 MAR p. 1552, Eff. 12/1/78; AMD, 1993 MAR p. 297, Eff. 2/26/93; AMD, 1999 MAR p. 290, Eff. 2/12/99; TRANS & AMD, from 20.25.302, 2010 MAR p. 2816, Eff. 12/10/10; AMD, 2012 MAR p. 1619, Eff. 8/10/12; AMD, 2022 MAR p. 1194, Eff. 7/9/22.

Mont. Admin. R. 20.25.307 Medical Parole

(1) Except for an offender under sentence of death or of life imprisonment without the possibility of parole, a hearing panel may release an offender on medical parole in accordance with 46-23-210, MCA.

(2) An offender or other party specified in 46-23-210, MCA, may submit an application for the offender's medical parole. The application must include the information required in 46-23-210, MCA.

(3) The diagnosis must be reviewed and accepted by the department's medical director or designee before a hearing panel may hear the case for medical parole.

(4) In order to grant a medical parole a hearing panel must find:

(a) release of the offender is unlikely to pose a detriment to the offender, victim, or community; and

(b) the offender has a medical condition that requires extensive medical attention or the offender suffers from a medical condition that will likely cause his/her death within six months or less.

(5) In considering whether an offender is likely to pose a detriment to the victim or community, a hearing panel may consider:

(a) whether the offender's medical condition renders him/her unable to engage in criminal activity;

(b) any statement submitted by the victim of the offense for which the offender is currently incarcerated;

(d) the offender's conduct, employment, and attitude in prison;

(e) reports of any physical and mental examinations that have been made;

(f) the offender's previous social and criminal record; and

(g) the circumstances of the offense for which the offender is incarcerated.

(6) In determining whether to grant or deny an application for medical parole, a hearing panel may consider whether:

(a) there is support or opposition from the community including the victim or victim's family, the court, or law enforcement;

(b) the offender suffered from the medical condition at the time the offender committed the offense or was sentenced for the offense for which the offender is presently incarcerated and if so, whether the medical condition has progressed to such a degree that it is unlikely that the offender is able to engage in criminal activity;

(c) the care and supervision that the offender requires can be provided in a more medically appropriate or cost-effective manner than by the department;

(d) the offender is incapacitated to an extent that incarceration does not impose significant additional restrictions on the offender;

(e) the offender is likely to continue to suffer from the medical condition throughout the entire period of parole or to die while the offender is on medical parole and there is no reasonable expectation that the offender's medical condition will improve noticeably; and

(f) an appropriate discharge plan has been formulated that addresses basic life domains of the offender, including care coordination, housing, eligibility for public benefits and health care including necessary medication.

(7) Prior to the medical parole hearing, the board shall gather for a hearing panel's deliberations, all pertinent information on the offender, including but not limited to the nature of the offense, social history, criminal history, institutional performance, and any medical and mental examinations which may have been made while in custody.

(8) Upon receiving notification from the department that a medical parolee is eligible for nonmedical parole, a hearing panel may consider the offender for nonmedical parole according to the rules established for nonmedical parole consideration.

(9) A grant or denial of medical parole does not affect an offender's eligibility for nonmedical parole. The board will first consider an offender for nonmedical parole if the offender has reached parole eligibility.

(10) If a hearing panel denies the application, the department may not accept another application regarding the same offender, unless the offender's medical condition has deteriorated to such a degree that the factors previously considered by the hearing panel are affected.

(11) Revocation procedures for medical parole are the same as those for nonmedical parole and statutory provisions for nonmedical parole apply to medical parole.

(12) By submitting an application for medical parole, the offender waives any right to privacy in his/her medical information.

History

Authorizing statute(s): 46-23-218, MCA
Implementing statute(s): 46-23-210, MCA
History: NEW, 1993 MAR p. 297, Eff. 2/26/93; AMD, 1994 MAR p. 168, Eff. 1/28/94; AMD, 1999 MAR p. 290, Eff. 2/12/99; TRANS & AMD, from 20.25.302A, 2010 MAR p. 2816, Eff. 12/10/10; AMD, 2012 MAR p. 1619, Eff. 8/10/12; AMD, 2022 MAR p. 1194, Eff. 7/9/22.

Subchapter 20.25.4 Release Hearings

Mont. Admin. R. 20.25.401 Hearing Procedure

(1) The presiding hearing panel member shall conduct hearings informally and shall have discretion to allow or not allow any proposed witness statements on recognized legal grounds. The board staff shall make a recording of all hearings in accordance with 46-23-110, MCA.

(2) Interested persons who wish to appear before the hearing panel must comply with board requirements as posted on its website including:

(a) notify the board staff not less than ten working days prior to the regularly scheduled hearing; and

(b) inform the board staff of the reason they wish to appear before the hearing panel and the relationship of the person to the offender at whose hearing the person intends to appear.

(3) Criminal justice authorities or any other interested persons may submit written comments about an offender's possible parole to board staff at any time before the hearing.

(4) A victim may present a statement regarding the effects of the crime on the victim. A victim's statement may also include but is not limited to:

(a) the manner in which the crime was committed;

(b) the circumstances surrounding the crime; and

(5) At the presiding hearing panel member's discretion, the victim's statement and testimony will be kept confidential if the presiding member finds the victim's privacy interest outweighs the public's right to know. A recording of the hearing will not personally identify the victim without the victim's written consent.

(6) The presiding hearing panel member may close a hearing to hear or consider confidential information.

(a) Information is confidential when the presiding member finds a person's privacy interest outweighs the public's right to know.

(b) When the hearing panel has finished hearing or discussing the confidential information, it shall reopen the meeting and complete the hearing in public.

(7) When the hearing panel denies an offender parole, it must give the offender written notification of the decision and include reason(s) for the decision and when the offender may reapply for parole consideration.

(8) A hearing panel will consider an eligible offender for parole release even if the offender does not submit an application for parole. A hearing panel will render a decision based on the written record and on the fact the offender did not apply for parole.

(9) A hearing panel may conduct hearings via two-way interactive video teleconferencing and may conduct administrative reviews by means of telephone conference.

(10) Board hearings are open to the public; however, all persons attending hearings that take place in a secure facility must gain approval to enter the facility from the facility's chief of security or designee as required by the facility's policy. While at the facility, persons must comply with the facility's policies including applicable security policies. The facility may exclude or escort from the facility any person who fails to gain approval to enter the facility or fails to comply with the facility's policies. At the discretion of the hearing panel additional witnesses may be heard outside of the secure facility.

(11) Offenders who appear for parole hearings may have a representative, including an attorney, present with them.

(12) At the conclusion of the hearing, the hearing panel will either notify the offender of the panel's decision and the reasons for the decision or the hearing panel may take the decision under advisement.

History

Authorizing statute(s): 46-23-218, MCA
Implementing statute(s): 46-23-202, 46-23-203, 46-23-204, MCA
History: Eff. 12/31/72; AMD, 1978 MAR p. 1552, Eff. 12/1/78; AMD, 1993 MAR p. 297, Eff. 2/26/93; AMD, 1994 MAR p. 168, Eff. 1/28/94; AMD, 1999 MAR p. 290, Eff. 2/12/99; AMD, 2010 MAR p. 2816, Eff.12/10/10; AMD, 2012 MAR p. 1619, Eff. 8/10/12; AMD, 2016 MAR p. 139, Eff. 1/23/16; AMD, 2022 MAR p. 1194, Eff. 7/9/22.

Mont. Admin. R. 20.25.402 Administrative Review and Reappearance

(1) If the hearing panel does not grant parole at the initial parole hearing, the hearing panel shall set either a reappearance or an administrative review in accordance with 46-23-201(5), MCA. If an administrative review is set, it will be conducted in accordance with the following:

(a) The purpose of administrative review is to consider any significant developments or changes in the offender's status that may have occurred subsequent to the last parole consideration; it is not a hearing, but is a review based on the record.

(b) For the administrative review, prison staff will prepare and submit to the board, a report outlining the offender's developments, including the offender's progress and conduct since the last consideration.

(2) Following an administrative review, the hearing panel in its sole discretion may order no change in the previous parole decision, may schedule the offender to reappear before a hearing panel for a parole hearing, may modify or rescind a previously granted parole, or may grant a parole. If the panel grants a parole, board staff must inform any registered victim.

(3) A hearing panel may not grant a parole upon administrative review to a sexual or violent offender, an offender with a history of felony sexual or violent convictions, or an offender for whom criminal justice authorities or victims have previously objected to parole.

History

Authorizing statute(s): 46-23-201, 46-23-218, MCA
Implementing statute(s): 46-23-201, 46-23-218, 46-24-212, MCA
History: NEW, 2010 MAR p. 2816, Eff. 12/10/10; AMD, 2012 MAR p. 1619, Eff. 8/10/12; AMD, 2022 MAR p. 1194, Eff. 7/9/22.

Mont. Admin. R. 20.25.403 Early Consideration

(1) Whenever an offender's next scheduled administrative review is more than one year away, the offender may submit to the board a request for early consideration stating new information or change in circumstances that bears on their suitability for parole. An offender may not submit more than one request for early consideration annually.

(2) The passage of time alone is not considered new information.

(3) The board will screen the request to confirm that one of the following criteria for early consideration is met:

(a) a change in the offender's status since the last parole consideration tending to demonstrate the offender's ability and willingness to fulfill the obligations of a law-abiding member of the public;

(b) the offender has completed treatment or an educational program;

(c) the offender has fulfilled other conditions ordered by the hearing panel or has been unable to fulfill them due to factors outside the offender's control;

(d) the hearing panel's previous disposition was based on erroneous information or misinformation;

(e) the offender has developed a suitable release plan or there has been a substantial change in the offender's previous release plan to warrant reconsideration;

(f) the victim or community no longer objects to the offender's release; or

(g) correctional staff has made a recommendation for earlier administrative review or reappearance.

(4) If the offender meets one of the criteria in (3) the board will exercise its discretion to determine whether to grant early consideration.

(5) If the request is denied, the notice to the offender will state the reasons for the denial. If the request is granted, the notice will state the date on which the administrative review will be conducted.

History

Authorizing statute(s): 46-23-201, 46-23-218, MCA
Implementing statute(s): 46-23-201, 46-23-218, 46-24-212, MCA
History: NEW, 2022 MAR p. 1194, Eff. 7/9/22.

Subchapter 20.25.5 Hearing Panel Decisions

Mont. Admin. R. 20.25.501 Decision and Reconsideration

(1) A final decision of the hearing panel must be by a majority vote, must be in writing, and must be signed by at least two panel members.

(2) Following the parole hearing, the hearing panel may make any of the following dispositions:

(a) grant parole;

(b) grant conditional parole, subject to approval and verification of the parole plan;

(c) grant conditional parole to occur within a specified time period or upon completion of a contingency, including but not limited to completion of treatment or prerelease, completion of additional clear conduct, or completion of a specific amount of time on the sentence;

(d) continue the offender to a subsequent reconsideration hearing consistent with ARM 20.25.402 or 20.25.403;

(e) schedule an administrative review; and

(f) pass the offender to discharge in accordance with the schedule listed in 46-23-201, MCA, or if the offender has requested to serve to discharge.

(3) If the hearing panel denies the offender parole, the disposition must state the reasons for denial.

(4) The decision of the hearing panel, including reasons for such, will be delivered to the offender and any victims who have requested the board's decision within 21 calendar days of the hearing.

(5) Board staff will post information regarding hearing panel decisions on individual cases on its web site within 21 calendar days of the hearing panel's decision.

(6) If the offender can present evidence that the hearing panel's decision was based on erroneous or false information, or that a hearing was not conducted according to board procedure, a newly appointed hearing panel may reconsider the decision.

(a) The offender must submit a written request for reconsideration to the board chair or designee within 60 days following the delivery of the written disposition.

(b) If the offender presents sufficient evidence the chair or designee will forward the case to a hearing panel for its consideration.

(7) A duly constituted hearing panel will make the following administrative decisions after panel members have reviewed the offender's case record. These decisions do not require the approval of the members who made the most recent parole determination:

(a) revocation of parole if the offender has waived the hearing;

(b) rescission of previously granted parole;

(d) requests for supervision fee waivers;

(e) requests for conditional discharges from supervision; and

(f) a change or modification of a previous hearing panel decision that does not reverse a parole denial or a parole grant decision.

History

Authorizing statute(s): 46-23-218, MCA
Implementing statute(s): 46-23-104, 46-23-201, 46-24-212, MCA
History: Eff. 12/31/72; AMD, 1978 MAR p. 1552, Eff. 12/1/78; AMD, 1993 MAR p. 297, Eff. 2/26/93; AMD, 1999 MAR p. 290, Eff. 2/12/99; AMD, 2010 MAR p. 2816, Eff. 12/10/10; AMD, 2012 MAR p. 1619, Eff. 8/10/12; AMD, 2022 MAR p. 1194, Eff. 7/9/22.

Mont. Admin. R. 20.25.504 Investigation

(1) Before a hearing panel considers an offender for release on parole, the board shall consider, at a minimum, the information provided by the department pursuant to 46-23-203, MCA, and outlined in 46-23-208(4), MCA.

(2) If a hearing panel grants a parole the panel shall request an officer of the department's probation and parole bureau or an out-of-state supervising authority investigate the offender's release plan including victim concerns and give board staff a summary and recommendation concerning the plan.

History

Authorizing statute(s): 46-23-218, MCA
Implementing statute(s): 46-23-107, 46-23-203, 46-23-208, MCA
History: Eff. 12/31/72; AMD, 1978 MAR p. 1552, Eff. 12/1/78; AMD, 1993 MAR p. 297, Eff. 2/26/93; AMD, 1994 MAR p. 168, Eff. 1/28/94; AMD, 1999 MAR p. 290, Eff. 2/12/99; AMD, 2010 MAR p. 2816, Eff. 12/10/10; AMD, 2022 MAR p. 1194, Eff. 7/9/22.

Mont. Admin. R. 20.25.506 Furlough

(1) When a hearing panel has granted an offender a parole, the panel or the board chair or designee may grant the offender a furlough for the sole purpose of finding employment, making suitable living arrangements, or fulfilling any other hearing panel condition that is difficult to fulfill while incarcerated.

(2) Furlough is for ten days, but board staff may grant an extension of up to another consecutive ten-day period to allow the offender to fulfill the furlough purposes.

(3) While on furlough the offender remains in the legal custody of the department and is subject to the department's furlough program rules, standard parole conditions, and any other special conditions recited by the hearing panel. If the offender fails to report as directed or fails to return to custody, the offender may be charged with a violation of 45-7-306, MCA.

(4) The offender may be immediately returned to the institution from which the furlough was granted if the offender violates the furlough program rules, any of the standard parole rules, any of the panel's special conditions, or if the offender is unable to fulfill the employment, housing, or other furlough conditions.

(5) If the offender violates any of the conditions listed in (4) it is considered a major disciplinary violation and is handled in accordance with the department's disciplinary policy and ARM 20.25.601 concerning rescission.

(6) If the offender successfully fulfills the furlough conditions, the offender must sign the rules of parole and the board will issue a parole certificate. The offender is not officially on parole until the rules are signed and the certificate is issued.

History

Authorizing statute(s): 46-23-218, MCA
Implementing statute(s): 46-23-215, MCA
History: NEW, 2010 MAR p. 2816, Eff. 12/10/10; AMD, 2012 MAR p. 1619, Eff. 8/10/12.

Mont. Admin. R. 20.25.507 Parole Guidelines

(1) The purpose of the parole guidelines is to structure and guide parole release decisions and decisions relating to imposition of release conditions. Guidelines are a tool that ensure that members of the Board of Pardons and Parole (board) consider the identified factors when reviewing individual cases. Guidelines are not, in themselves, dispositive of the board's decisions. They provide a framework to facilitate reasonable consistency in paroling decisions.

(2) The board will consider in its guidelines the following factors in decreasing order of importance:

(a) The resulting score contained in a validated risk and needs assessment instrument administered to the offender by trained and certified corrections personnel and provided to the board for parole purposes. The resulting score on the risk and needs assessment is based on a point-range of 0 to 6 with 0 being low risk and 6 being very high or high risk, depending on the assessment instrument used. The board will review the department’s validated risk and needs assessments and secondary assessments. Sub-population or specialized assessments are reviewed if they are made available to the board. Sex-offender assessments are administered by a sex offender treatment therapist meeting the qualification standards set in ARM Title 20, chapter 7, subchapter 3. If both a general assessment instrument and a sub-population specific instrument (stable/static) are administered to an offender, the higher of the two scores will take precedence.

(b) Risk reduction program and treatment completion, scored as follows:

(i) 0 points for completion of all required programming, no programs recommended, or sentence did not allow sufficient time for completion;

(ii) 1 point for current enrollment in risk reduction programming;

(iii) 2 points for being on the waitlist for risk reduction programming; or

(iv) 5 points for refusal to participate in or having been terminated from risk reduction programming.

(i) 0 points for having no infractions in the past 6 months;

(ii) 2 points for having major infractions but no highest severity infractions within the past 6 months; or

(iii) 3 points for having any highest severity major infraction in the past 6 months.

(d) Revocation of supervision, scored as follows:

(i) 0 points for no revocation in last 5 years;

(ii) 2 points for 1 revocation of supervision in last 5 years; or

(iii) 3 points for 2 or more revocations in the past 5 years.

(e) Severity of the offense currently being served by a parole-eligible offender under 46-23-201, MCA, scored as follows:

(i) 0 points for non-violent; or

(ii) 2 points for a violent offense or a sex offense as those terms are defined in 46-18-104, MCA.

(3) Generally, an aggregate score of 0 to 8 points under (2)(a) through (e) weighs in favor of the offender and an aggregate score of 9 or more points under (2)(a) through (e) weighs against the offender. The board is not bound to grant or deny parole based solely on the aggregate score.

(4) For purposes of applying the parole guidelines set out in (2)(c), the board adopts the list of institutional infractions and the characterizations of their severity currently used in "state prisons" as that term is defined in 53-30-101, MCA. The current list will be maintained by the board on its website https://bopp.mt.gov/ at all times.

(5) Board decisions concerning imposition of parole release conditions are based in part upon the domains evaluated by the risk and needs instruments. These include, but are not limited to: Education, Employment and Social Support; Substance Abuse and Mental Health; Criminal Attitudes and Behavioral Patterns and upon indicated treatment recommendations contained therein.

(6) The board may develop one or more forms to use in applying the guidelines.

History

Authorizing statute(s): 46-23-218, MCA
Implementing statute(s): 46-23-208, 46-23-218, MCA
History: NEW, 2020 MAR p. 2401, Eff. 12/25/20; AMD, 2026 MAR, Notice No. 2026-850, Eff. 6/6/26.

Subchapter 20.25.6 Rescission of Parole

Mont. Admin. R. 20.25.601 Rescission Hearing

(1) A hearing panel may conduct a hearing and rescind a previously granted parole if the offender has not left confinement or is on furlough status and the panel finds one of the following has occurred:

(a) the offender has committed disciplinary violations;

(b) there is a substantial change in the approved release plan; or

(2) The panel will make its decision regarding rescission after it has considered all relevant information including the offender's own testimony regarding extenuation or mitigation.

(3) The presiding hearing panel member will conduct the rescission hearing informally and will make an audio and video record of it. The offender has the right to be present at the hearing, but may waive that right and admit the allegations are true.

(4) In lieu of scheduling a rescission hearing the board may delay the offender's release from confinement for up to 120 days for the reasons listed in (1).

(5) Unless a hearing panel otherwise orders, before an offender leaves prison confinement on parole, the offender must be clear of major disciplinary misconduct for a minimum of 120 days. If the offender is a resident of a community-based program, the offender must be clear of Class 100 and 200 disciplinary violations for at least 90 days.

History

Authorizing statute(s): 46-23-218, MCA
Implementing statute(s): 46-23-218, MCA
History: Eff. 12/31/72; AMD, 1978 MAR p. 1552, Eff. 12/1/78; AMD, 1993 MAR p. 297, Eff. 2/26/93; AMD, 1994 MAR p. 168, Eff. 1/28/94; AMD, 2010 MAR p. 2816, Eff. 12/10/10; AMD, 2012 MAR p. 1619, Eff. 8/10/12; AMD, 2016 MAR p. 139, Eff. 1/23/16; AMD, 2022 MAR p. 1194, Eff. 7/9/22.

Subchapter 20.25.7 Release on Supervision

Mont. Admin. R. 20.25.701 Release

(1) The board, through its staff, may delay a release that has been granted and not scheduled for rescission, up to 120 days as a result of improper conduct or new evidence or information. The staff shall notify the board of any delay and reason for it.

(2) Parole is not effective until the conditions are signed by the offender and the board issues the parole certificate. If a violation is established, a hearing panel may continue or rescind the parole, or enter such other order as it may see fit. The determination of further release shall be consistent with the rules adopted for release hearings.

(3) While on parole release an offender on nonmedical or medical parole is serving the sentence of imprisonment or commitment imposed by the court until the sentence is discharged. The offender must remain under supervision or in custody until the sentence is discharged unless the offender is granted a conditional discharge from supervision pursuant to ARM 20.25.704.

(4) An offender granted a parole is subject to revocation of the release for violation of the law or of any of the conditions of the supervision agreement including conditions imposed by the hearing panel.

History

Authorizing statute(s): 46-23-218, MCA
Implementing statute(s): 46-23-215, 46-23-216, MCA
History: Eff. 12/31/72; AMD, 1978 MAR p. 1552, Eff. 12/1/78; AMD, 1993 MAR p. 297, Eff. 2/26/93; AMD, 1994 MAR p. 168, Eff. 1/28/94; AMD, 1999 MAR p. 290, Eff. 2/12/99; AMD, 2010 MAR p. 2816, Eff. 12/10/10; AMD, 2012 MAR p. 1619, Eff. 8/10/12.

Mont. Admin. R. 20.25.702 Conditions of Supervision

(1) When a hearing panel orders an offender paroled, the offender is subject to the following standard rules unless otherwise ordered by the panel:

(a) The offender must obtain prior approval from his/her supervising officer before taking up residence in any location. The offender shall not change his/her place of residence without first obtaining written permission from his/her supervising officer or the officer's designee. The offender must make the residence open and available to an officer for a home visit or for a search upon reasonable suspicion. The offender will not own dangerous or vicious animals and will not use any device that would hinder an officer from visiting or searching the residence.

(b) The offender must obtain permission from his/her supervising officer or the officer's designee before leaving his/her assigned district.

(c) The offender must seek and maintain employment or maintain a program approved by the Board of Pardons and Parole or the supervising officer. Unless otherwise directed by his/her supervising officer, the offender must inform his/her employer and any other person or entity, as determined by the supervising officer, of his/her status on probation, parole, or other community supervision.

(d) Unless otherwise directed, the offender must submit written monthly reports to his/her supervising officer on forms provided by the probation and parole bureau. The offender must personally contact his/her supervising officer or designee when directed by the officer.

(e) The offender is prohibited from using, owning, possessing, transferring, or controlling any firearm, ammunition (including black powder), weapon, or chemical agent such as oleoresin capsicum or pepper spray.

(f) The offender must obtain permission from his/her supervising officer before engaging in a business, purchasing real or personal property, or purchasing an automobile, or incurring a debt.

(g) Upon reasonable suspicion that the offender has violated the conditions of supervision, a probation and parole officer may search the person, vehicle, and residence of the offender, and the offender must submit to such search. A probation and parole officer may authorize a law enforcement agency to conduct a search, provided the probation and parole officer determines reasonable suspicion exists that the offender has violated the conditions of supervision.

(h) The offender must comply with all municipal, county, state, and federal laws and ordinances and shall conduct himself/herself as a good citizen. The offender is required, within 72 hours, to report any arrest or contact with law enforcement to his/her supervising officer or designee. The offender must be cooperative and truthful in all communications and dealings with any probation and parole officer and with any law enforcement agency.

(i) The offender is prohibited from using or possessing alcoholic beverages and all intoxicants or mind altering chemicals. The offender is required to submit to bodily fluid testing for intoxicants or mind altering chemicals on a random or routine basis and without reasonable suspicion.

(j) The offender is prohibited from gambling.

(k) The offender must pay all fines, fees, and restitution ordered by the sentencing court.

(2) A parolee shall pay a supervision fee in accordance with 46-23-1021, MCA.

(3) A hearing panel may order additional special conditions. Additionally, a hearing panel shall consider Department of Corrections' requests for special conditions. Any special conditions imposed by the department must be approved by a hearing panel. Special conditions must not be unrealistic or vague and must be reasonably related to the offender's crime, public safety, or the circumstances and rehabilitation of the offender.

(4) All rules and conditions must be stated in writing and must be made a part of any agreement signed by the offender.

(5) Any conditions of medical parole ordered by a hearing panel are considered parole special conditions.

History

Authorizing statute(s): 46-23-218, MCA
Implementing statute(s): 46-23-215, 46-23-1021, MCA
History: Eff. 12/31/72; AMD, 1978 MAR p. 1552, Eff. 12/1/78; AMD, 1993 MAR p. 297, Eff. 2/26/93; AMD, 1994 MAR p. 168, Eff. 1/28/94; AMD, 1999 MAR p. 290, Eff. 2/12/99; AMD, 2010 MAR p. 2816, Eff. 12/10/10; AMD, 2012 MAR p. 1619, Eff. 8/10/12; AMD, 2022 MAR p. 1194, Eff. 7/9/22.

Mont. Admin. R. 20.25.704 Conditional Discharge from Supervision

(1) Upon recommendation of the supervising parole officer, a hearing panel may conditionally discharge a parolee from parole supervision before the expiration of the sentence, if the panel determines that such conditional discharge is in the best interests of the parolee and society, and will not present an unreasonable risk of danger to society or the victim of the offense.

(2) During a conditional discharge the following apply:

(a) the parolee is not supervised by the department;

(b) the parolee will not pay supervision fees; and

(c) if the parolee becomes a resident of another state, the parolee's sentence is discharged, but the parolee can be revoked as in (7).

(3) After the parolee has served one year of active supervision, the parole officer will review the parolee's file and may recommend a parolee for conditional discharge.

(4) When a hearing panel considers granting a conditional discharge from supervision, it will consider the following criteria:

(a) supervision compliance:

(i) no positive drug or alcohol tests or any drug or alcohol use admissions in the last six months;

(ii) free of non-compliance violations during the required supervision time; and

(iii) has been accountable for working on and meeting goals established in case plan or through supervision with parole officer;

(b) residential stability:

(i) has a permanent residence and is self-sufficient regarding housing costs with or without public assistance and is not homeless or at risk of homelessness;

(i) currently employed and has been employed for majority of time while under parole supervision; or

(ii) has demonstrated the ability to be financially self-sufficient; and

(iii) has fulfilled court-ordered restitution obligation;

(d) engagement in treatment:

(i) successful completion of all board-ordered and court-ordered treatment and programming;

(e) other factors indicative of adequate reentry stability; and

(f) the achievement credits the parolee has accrued pursuant to 46-23-1027, MCA.

(5) If a hearing panel grants a conditional discharge from supervision it may order the parolee to submit written reports to the board in January of each year, reporting the parolee's address and any contacts the parolee has had with law enforcement.

(6) A hearing panel may revoke a conditional discharge from supervision and return a parolee to active supervision or amend the conditions of the conditional discharge from supervision if, in the opinion of a hearing panel, this action is in the best interest of society.

History

Authorizing statute(s): 46-23-218, MCA
Implementing statute(s): 46-23-215, 46-23-1020, 46-23-1021, MCA
History: NEW, 1993 MAR p. 297, Eff. 2/26/93; AMD, 1999 MAR p. 290, Eff. 2/12/99; AMD, 2010 MAR p. 2816, Eff. 12/10/10; AMD, 2012 MAR p. 1619, Eff. 8/10/12; AMD, 2020 MAR p. 2401, Eff. 12/25/20.

Mont. Admin. R. 20.25.705 Final Discharge

(1) When a parolee has completed the full term of imprisonment or commitment, the board will issue a final discharge certificate.

History

Authorizing statute(s): 46-23-218, MCA
Implementing statute(s): 46-23-215, MCA
History: NEW, 1993 MAR p. 297, Eff. 2/26/93; AMD, 1994 MAR p. 168, Eff. 1/28/94; AMD, 2010 MAR p. 2816, Eff. 12/10/10.

Subchapter 20.25.8 Revocation of Parole

Mont. Admin. R. 20.25.801 On-Site Hearing and Revocation of Parole

(1) If an officer of the department has reason to believe a parolee has violated any of the conditions of the parolee's release, the department must conduct an on-site hearing unless the parolee waives the right to an on-site hearing or pursuant to (3), no on-site hearing is necessary.

(2) In order to waive the right to an on-site hearing the parolee must sign a waiver that clearly specifies the rights the parolee is relinquishing and admit to at least one of the violations as outlined in the report of violation.

(3) No on-site hearing is necessary if the parolee is convicted of a felony offense during the period of supervision, or if the parolee is arrested in a state in which the parolee had no permission to travel or reside. If no on-site hearing is necessary the hearing panel may utilize the court judgment and conviction or out-of-state arrest documents in lieu of the on-site hearing summary.

(4) For an on-site hearing the parole officer shall serve the parolee with a report of violation and notice of on-site hearing.

(5) The on-site hearing must be held at or reasonably near the site of the alleged violation within a reasonable time after the service of the report of violation to the parolee. If the parolee is arrested out-of-state, the hearing will be conducted by the state tasked with supervision of the parolee or upon return to Montana custody.

(6) The parolee may have witnesses attend the on-site hearing, but only if the witnesses have relevant testimony to present concerning whether the parolee did or did not violate the conditions of release on parole, and only if the witnesses can qualify to enter the correctional facility if the hearing is held in a secure facility.

(7) A hearing officer of the department will preside over the on-site hearing. If the hearing officer finds there is probable cause to hold the parolee for the final decision of the board, the parole officer will notify the board and submit a summary of the hearing to the board.

(8) The parolee may be held in a state prison pending an on-site hearing or after a hearing officer has determined there is probable cause to hold the parolee for a final decision of the board.

(9) The board staff will deliver a copy of the board's written decision to the offender within 21 days of the decision. The written decision will include reasons for the decision and disposition, and a summary of the evidence upon which the board relied.

(10) If a hearing panel determines that the offender has violated the provisions of release, the hearing panel, at its sole discretion, will determine the amount of time, if any, that will be counted as time served while the parolee was in violation of the provisions of release.

(11) A parole violation warrant will remain active until the parolee is in Montana custody and may not be quashed without the approval of a board hearing panel. If the parolee's sentence expiration date is reached, a hearing panel will review the case to determine if keeping the warrant active is in the interests of justice. If the panel decides to keep the warrant active after the parole discharge date, not including dead time, a panel will review the parolee's status annually.

(12) If the parolee waives the revocation hearing the parolee must sign a waiver that clearly specifies the rights the parolee is relinquishing. Once the hearing is scheduled, the parolee may request a continuance and board staff may grant the continuance if the parolee has shown good and substantial cause for the continuance.

(13) At the revocation hearing the parolee may be represented by counsel at the parolee's expense, and may present witness testimony if the testimony relates to the violations. An indigent parolee may request appointed counsel if difficult or complex issues are present and if the parolee is unable to articulate the issues. A decision on the request for appointed counsel will be rendered by a board hearing panel after due consideration of the request.

(14) A parolee who contests parole revocation or the parolee's counsel shall, at least 20 days before the revocation hearing, present to the board staff:

(a) any requests for information from the parolee's file that the parolee needs for the hearing;

(b) a list of witnesses and exhibits the parolee intends to present at the revocation hearing;

(d) any requests for subpoenas the parolee wants the board to issue. The board will only issue subpoenas for extraordinary reasons and in cases where the board considers a person's testimony is crucial to a determination of the issue of revocation.

(15) The presiding hearing panel member will conduct the revocation hearing and will make an audio or video record of the hearing. Violations warranting a revocation decision must have been established by a preponderance of the evidence. The board may consider:

(a) reports of the supervising officer;

(b) the report of the on-site hearing, if one was conducted; and

(16) When conducting on-site hearings and other activities preparatory to a parole revocation hearing, probation and parole officers remain the employees of and under the supervision of the Montana Department of Corrections and not of the Board of Pardons and Parole.

History

Authorizing statute(s): 46-23-218, MCA
Implementing statute(s): 46-23-215, 46-23-1024, 46-23-1025, MCA
History: Eff. 12/31/72; AMD, 1978 MAR p. 1552, Eff. 12/1/78; AMD, 1993 MAR p. 297, Eff. 2/26/93; AMD, 1994 MAR p. 168, Eff. 1/28/94; AMD, 1999 MAR p. 290, Eff. 2/12/99; AMD, 2010 MAR p. 2816, Eff. 12/10/10; AMD, 2012 MAR p. 1619, Eff. 8/10/12; AMD, 2016 MAR p. 139, Eff. 1/23/16; AMD, 2022 MAR p. 1194, Eff. 7/9/22.

Mont. Admin. R. 20.25.804 Board Responses to Parole Violations

(1) Upon receipt of a report of violation from the department pursuant to 46-23-1024 and 46-23-1025, MCA, the board will:

(a) review the report and any supporting documentation;

(b) promptly schedule a revocation hearing;

(d) for any established violation, determine the type of violation, either compliance or non-compliance.

(2) For established compliance violation(s), the board will determine whether the Montana incentives and interventions grid (MIIG) was exhausted and, if not, refer the matter back to the department.

(3) For established compliance and non-compliance violations, the board will issue a disposition in accordance with the appropriate subsection(s) of 46-23-1025, MCA or other appropriate order.

History

Authorizing statute(s): 46-23-201, 46-23-218, MCA
Implementing statute(s): 46-23-1028, MCA
History: NEW, 2022 MAR p. 1194, Eff. 7/9/22.

Subchapter 20.25.9 Executive Clemency

Mont. Admin. R. 20.25.901 Applications for Clemency

(1) Application forms for executive clemency may be obtained at the board's main office in Deer Lodge, Montana or from the board's web site.

(2) Applications must be in writing, signed by the applicant, notarized, and filed with the board's Deer Lodge office. Applications may be filed only by the offender convicted of the crime, by the offender's attorney acting on the offender's behalf and with his/her consent, or by a court-appointed next friend, guardian, or conservator acting on the offender's behalf.

(a) The applications shall state the type of executive clemency requested; pardon, commutation, respite, or remission of fines or forfeitures.

(b) The application for clemency must include:

(i) a certified copy of all court documents relating to the particulars of the crime and sentencing;

(ii) details concerning the circumstances relating to the social conditions of the applicant prior to the commission of the crime, at the time the offense was committed, and at the time of the application;

(iii) three letters of support from reputable persons;

(iv) psychological reports that are available at the time of application;

(v) verification that supports the reasons for the applicant's request for executive clemency; and

(vi) a signed waiver of confidentiality.

(3) An offender whose application has been denied may not reapply for executive clemency unless the offender submits evidence of substantial change in circumstances since the last application. A hearing panel will screen reapplications for clemency and if the offender has submitted evidence of substantial change of circumstances, it will determine if it will order an investigation and hearing pursuant to ARM 20.25.902. Clemency applications that have been submitted and denied prior to October 1, 2015, may be resubmitted to the board for additional consideration, subject to the applicable provisions of the administrative rules.

(4) In cases in which the death penalty has been imposed, the application for executive clemency must be received at the board's Deer Lodge office no later than ten days after the district court sets a date of execution.

(5) Any person convicted of a crime after July 1, 1973, will automatically have restored, upon completion of custody and supervision, all civil rights that were lost with the conviction. The person need not apply for executive clemency to have the person's civil rights restored.

History

Authorizing statute(s): 46-23-218, MCA
Implementing statute(s): 46-23-301, MCA
History: Eff. 12/31/72; AMD, 1978 MAR p. 1552, Eff. 12/1/78; AMD, 1993 MAR p. 297, Eff. 2/26/93; AMD, 1994 MAR p. 168, Eff. 1/28/94; AMD, 1999 MAR p. 290, Eff. 2/12/99; AMD, 2010 MAR p. 2816, Eff. 12/10/10; AMD, 2012 MAR p. 1619, Eff. 8/10/12; AMD, 2016 MAR p. 139, Eff. 1/23/16; AMD, 2022 MAR p. 1194, Eff. 7/9/22.

Mont. Admin. R. 20.25.901A EXECUTIVE CLEMENCY CRITERIA

20.25.901A EXECUTIVE CLEMENCY CRITERIA

(1) Pardon is a declaration of record that an individual is to be relieved of all legal consequences of a prior conviction. An individual may not apply for a pardon unless the offense for which he/she seeks a pardon has been commuted or discharged. A hearing panel may recommend a pardon for an individual who:

(a) can satisfactorily prove innocence of a crime for which the individual has served time;

(b) has demonstrated an extended period of exemplary performance;

(d) can satisfactorily prove extraordinary mitigating or extenuating circumstances exist.

(2) Commutation involves the mitigation of a criminal punishment through the substitution of a lesser sentence for a greater one. A hearing panel may recommend commutation for an individual who:

(a) can prove by overwhelming evidence the individual is innocent of a crime for which the individual was convicted;

(b) has demonstrated an extended period of exemplary performance;

(c) submits evidence discovered subsequent to the conviction that clearly shows the individual was completely justified in committing the crime; or

(d) can satisfactorily prove that further incarceration would be grossly unfair, that a death penalty should be avoided, or extraordinary mitigating or extenuating circumstances exist.

(3) A hearing panel may also recommend to the governor that a respite or a remission of fines or forfeitures be granted.

(4) When considering an application for executive clemency the hearing panel shall consider the nature of the crime, the comments of the sentencing judge, the prosecuting attorney, the community, and the victims and victims' family regarding clemency for the applicant, and whether release would pose a threat to the public safety.

History

Authorizing statute(s): 46-23-218, MCA
Implementing statute(s): 46-23-301, MCA
History: NEW, 1993 MAR p. 297, Eff. 2/26/93; AMD, 1999 MAR p. 290, Eff. 2/12/99; AMD, 2010 MAR p. 2816, Eff. 12/10/10; AMD, 2012 MAR p. 1619, Eff. 8/10/12.

Mont. Admin. R. 20.25.902 Investigations for Clemency and Order for Hearing

(1) In cases in which the death penalty has not been imposed, a hearing panel of the board shall conduct a preliminary review of the application for clemency.

(2) The hearing panel may request a psychological evaluation of the applicant, a background check of the applicant, and any other reports the panel deems necessary as part of the preliminary review.

(3) After preliminary review, a hearing panel shall consider whether to hold a hearing on the application pursuant to 46-23-301, MCA.

(4) Pursuant to 46-23-302, 46-23-303, and 46-23-305, MCA, if in the opinion of the hearing panel sufficient cause appears to conduct a hearing on the application, the panel shall initiate an investigation and sign an order indicating the following:

(a) the date on which the hearing will be held;

(b) that all persons having an interest in the matter who desire to be heard should be present on the date set for the hearing;

(c) that the order must be printed and published in a newspaper of general circulation in the county where the crime was committed once each week for two weeks; and

(d) that a copy of the order must be sent to the district judge, the county attorney, the sheriff of the county where the crime was committed, and to the applicant.

(5) If the board receives an application for clemency for an inmate for whom the death penalty has been imposed, the board will set a date for a hearing on the application. The board will give notice of the hearing date, as prescribed by law, and as described in (4).

History

Authorizing statute(s): 46-23-218, MCA
Implementing statute(s): 46-23-301, 46-23-302, MCA
History: Eff. 12/31/72; AMD, 1978 MAR p. 1552, Eff. 12/1/78; AMD, 1993 MAR p. 297, Eff. 2/26/93; AMD, 1994 MAR p. 168, Eff. 1/28/94; AMD, 1999 MAR p. 290, Eff. 2/12/99; AMD, 2010 MAR p. 2816, Eff. 12/10/10; AMD, 2012 MAR p. 1619, Eff. 8/10/12; AMD, 2016 MAR p. 139, Eff. 1/23/16; AMD, 2022 MAR p. 1194, Eff. 7/9/22.

Mont. Admin. R. 20.25.903 Hearing Procedure for Clemency

(1) A hearing panel of the board will, after having ordered a hearing and after appropriate notice has been given, conduct a public nonadversarial hearing.

(a) In cases in which the death penalty has not been imposed the hearing panel may hold the hearing via interactive video-conference or telephone conference.

(b) If the hearing takes place in a secure facility, all persons who wish to attend must gain approval to attend from the facility's chief of security or designee as required by facility policy and while at the facility must comply with the facility's policies including applicable security policies. The facility may exclude or escort from the facility any person who fails to comply with the facility's policies. The board has the discretion to hear testimony outside the facility.

(2) The hearing panel that conducts the hearing will hear all relevant facts and information of the petitioner, petitioner's counsel and witnesses, as well as any opponents to the petition, and will make an audio and video recording of the hearing including proof of publication of the order for hearing.

(3) Unless a majority of the hearing panel otherwise orders, procedures for the hearing on an accepted application for executive clemency are as follows:

(a) Before the hearing, the presiding hearing panel member will determine an appropriate amount of time for proponents and opponents to present their individual cases and to present closing arguments.

(b) Hearsay is allowed.

(c) The presiding hearing panel member may allow cross examination if he/she finds extraordinary circumstances are present. Hearing panel members may question witnesses in all cases.

(4) Applicants may be represented by counsel at their own expense.

(5) Opponents and proponents of the application may submit written testimony, but it must be received by the board no later than 21 days prior to the scheduled hearing. The hearing panel may request submissions from proponents or opponents.

History

Authorizing statute(s): 46-23-218, MCA
Implementing statute(s): 46-23-301, 46-23-306, MCA
History: Eff. 12/31/72; AMD, 1978 MAR p. 1552, Eff. 12/1/78; AMD, 1993 MAR p. 297, Eff. 2/26/93; AMD, 1999 MAR p. 290, Eff. 2/12/99; AMD, 2010 MAR p. 2816, Eff. 12/10/10; AMD, 2016 MAR p. 139, Eff. 1/23/16; AMD, 2022 MAR p. 1194, Eff. 7/9/22.

Mont. Admin. R. 20.25.904 Recommendation Concerning Clemency

(1) Upon completion of its preliminary review or hearing, the hearing panel shall transmit within 30 days to the Governor, the application or reapplication along with its recommendation to grant or deny clemency, together with relevant documentation.

(2) If a hearing was held, the hearing panel may take the entire case under advisement or may issue an immediate recommendation.

(3) In cases in which the death penalty has been imposed, the hearing panel will, immediately after making its decision, forward all relevant documents and a recommendation to grant or deny clemency to the Governor for the Governor's final determination.

(4) The board shall also give notice to the applicant of its recommended disposition and the reasons for its recommendation to deny or approve the application or reapplication.

(5) The board shall post its recommended disposition on the board's website within 21 calendar days of its recommendation.

(6) If the Governor grants executive clemency, the signed executive order will be sent to the Secretary of State. The Secretary of State will file the attested order and return the attested order to the board for dissemination to the applicant, the Department of Corrections, the Department of Justice, and the Federal Bureau of Investigation ID bureau for appropriate action.

History

Authorizing statute(s): 46-23-218, MCA
Implementing statute(s): 46-23-301, 46-23-307, MCA
History: Eff. 12/31/72; AMD, 1978 MAR p. 1552, Eff. 12/1/78; AMD, 1993 MAR p. 297, Eff. 2/26/93; AMD, 1994 MAR p. 168, Eff. 1/28/94; AMD, 2010 MAR p. 2816, Eff. 12/10/10; AMD, 2012 MAR p. 1619, Eff. 8/10/12; AMD, 2016 MAR p. 139, Eff. 1/23/16; AMD, 2022 MAR p. 1194, Eff. 7/9/22.

Chapter 20.26 Education of Exonerated Persons

Subchapter 20.26.1 Education Expenses for Exonerated Persons

Mont. Admin. R. 20.26.101 Definitions

For the purposes of this chapter, the following definitions apply:

(1) "Department" means the Department of Corrections as authorized in 2-15-2301, MCA.

(2) "Exonerated person" means a person who was convicted of a felony offense in the state of Montana; was incarcerated in a state prison for the felony offense; and whose felony offense was overturned or later dismissed based on the results of postconviction forensic DNA testing that exonerated the person of the crime for which the person was convicted and incarcerated.

History

Authorizing statute(s): 53-1-214, MCA
Implementing statute(s): 53-1-214, MCA
History: NEW, 2012 MAR p. 1632, Eff. 8/10/12.

Mont. Admin. R. 20.26.102 Program and Eligibility

(1) There is a program that may pay education expenses for exonerated persons. The department may pay educational expenses for an exonerated person as described in these rules. Educational reimbursement is contingent upon legislative appropriation of funds for this purpose.

(2) To be eligible for educational reimbursement the exonerated person must have:

(a) been convicted of a felony criminal offense in the state of Montana;

(b) been imprisoned in a state prison as described in 53-30-101, MCA, or in a prison out-of-state as a result of transfer through the interstate compact as a result of the conviction;

(c) had the felony criminal offense for which the exonerated person was imprisoned overturned or dismissed by a court of competent jurisdiction; and

(d) had the conviction overturned or dismissed as a result of postconviction forensic DNA testing.

(3) An exonerated person is eligible to receive benefits under these rules for ten years after the exonerated person's release from incarceration.

History

Authorizing statute(s): 53-1-214, MCA
Implementing statute(s): 53-1-214, MCA
History: NEW, 2012 MAR p. 1632, Eff. 8/10/12.

Mont. Admin. R. 20.26.103 Application and Designation

(1) For an exonerated person to receive educational aid the person must submit an application to the department's main office in Helena, Montana on a form made available at the department's main office or on the department's web site. The main office address is: Department of Corrections, 5 South Last Chance Gulch, Helena, Montana, 59620.

(2) The application must be received by the department 30 days before the person incurs the expense for which the person requests payment.

(3) The exonerated person must submit the following items along with the completed application:

(a) the exonerated person's judgment of imprisonment or commitment to the Department of Corrections;

(b) a certified copy of the document that overturned or dismissed the conviction for which the person was incarcerated; and

(4) If the application meets the criteria listed in ARM 20.26.102(2), the department will approve the application. After the application has been approved, the department will send the exonerated person a letter stating the exonerated person is designated as an exonerated person eligible to receive aid at the institutions and for the expenses listed in these rules.

(5) The designation of exonerated person entitles the exonerated person to receive benefits for up to five years from the time the exonerated person begins an educational program that is reimbursed under these rules, but in no instance will the department reimburse the exonerated person beyond the time the exonerated person attains a degree or ten years after the exonerated person was released from incarceration.

History

Authorizing statute(s): 53-1-214, MCA
Implementing statute(s): 53-1-214, MCA
History: NEW, 2012 MAR p. 1632, Eff. 8/10/12.

Mont. Admin. R. 20.26.104 Approved Educational Institutions and Expenses

(1) The department will pay an eligible exonerated person's expenses associated with the following educational institutions that are designated as approved educational institutions:

(a) a Montana community college;

(b) a unit of the Montana university system, as described in 20-25-201, MCA; or

(2) The department will pay an eligible exonerated person's expenses associated with:

(a) efforts to meet admission standards or requirements for admission at one of the above listed educational institutions including:

(i) a course of study to satisfy requirements for a certificate of equivalency of completion of secondary education (GED); and

(ii) assistance in completing any adult education program or courses.

(3) Upon proper proof and documentation as outlined in ARM 20.26.105, the department will pay the eligible exonerated person's expenses for tuition, fees, books, and room and board.

History

Authorizing statute(s): 53-1-214, MCA
Implementing statute(s): 53-1-214, MCA
History: NEW, 2012 MAR p. 1632, Eff. 8/10/12.

Mont. Admin. R. 20.26.105 Procedure to Receive Benefits

(1) To receive benefits the exonerated person, on a form provided by the department, must establish and show proof of admission to an educational institution listed in ARM 20.26.104 and current enrollment or enrollment in a program of preparation for admission to an approved educational institution.

(2) Upon establishment of admission or enrollment, the department will establish a payment plan with the exonerated person.

(a) The department will pay the costs for tuition, fees, and room and board directly to the educational institution or program.

(b) The department will maintain a form for the exonerated person to estimate expenses for books. Expenses for books will be paid to the exonerated person with presentation of the appropriately executed form that outlines the necessary books and their costs.

(c) If the exonerated person does not live on campus during the period of enrollment in an educational program, the department will pay the exonerated person the average amount of room and board charged at a unit of the Montana university system for the duration of active enrollment.

(3) The exonerated person must furnish proof of enrollment for each new educational period, the beginning of each semester, or the beginning of each educational course in preparation for college admission.

History

Authorizing statute(s): 53-1-214, MCA
Implementing statute(s): 53-1-214, MCA
History: NEW, 2012 MAR p. 1632, Eff. 8/10/12.

Chapter 20.27 Private Correctional Facilities

Subchapter 20.27.1 Siting and Construction Standards

Mont. Admin. R. 20.27.101 Definitions

For purposes of this chapter, the following definitions apply:

(1) "Department" means Department of Corrections.

(2) "Private correctional facility" means a correctional facility that is either privately operated or privately owned and operated.

(a) The term does not include a private detention center or a regional jail governed by Title 7, chapter 32, part 22, MCA.

(3) "Airport and landing field" means any area of land owned, leased, controlled, operated or maintained by the United States, the state of Montana, or any county or municipality or any of the authorized agencies or branches of a county or municipality within the state of Montana that is used or is made available for the landing and takeoff of aircraft.

(4) "Proposers" means entities submitting a response to the department's request for proposal.

(5) "Hospital" means an accredited hospital, including an emergency room, recognized and licensed by the state.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1998 MAR p. 172, Eff. 1/16/98; AMD, 2005 MAR p. 1393, Eff. 7/29/05.

Mont. Admin. R. 20.27.102 Site Selection of Private Correctional Facilities

(1) Private correctional facilities must be sited pursuant to American Correctional Association standards.

(2) Private correctional facilities must be sited near a civilian population center with at least the following services:

(a) within 30 minutes emergency response time of a hospital;

(b) within 30 minutes emergency response time of a full-time or volunteer fire department;

(c) within one hour driving time of scheduled public or private transportation services that provide regular travel to and from the area of the private correctional facility; and

(d) within one hour driving time of an airport and landing field:

(i) suitable for landing and take-off of charter-type aircraft; and

(ii) listed on the state system plan of airports as maintained by the Montana Department of Transportation, Aeronautics Division.

(3) Proposed sites for private correctional facilities must accommodate:

(a) a secure facility;

(b) a facility size, as determined by the department, with expansion capability;

(d) the contour of the land, building design, distance, or a vegetative buffer zone or terrain features that mitigate local concern for the appearance of a prison in the area;

(e) necessary support services;

(f) utilities;

(g) secure access;

(h) unobstructed surveillance capabilities; and

(i) safety of the public.

(4) Access roads to the site must be capable of supporting vehicular traffic during both the construction and operational periods.

(5) Proposed sites for private correctional facilities must follow all applicable state statutes, rules and regulations including, but not limited to, site planning, environmental, construction, and permitting statutes, rules and regulations.

(6) Proposed sites for private correctional facilities must be located above a 100-year flood plain.

(7) Proposed sites for private correctional facilities must be qualified for site development as a prison in conformance with applicable local zoning ordinances.

(8) If a private correctional facility will be connected to existing public utilities, or will be providing an acceptable alternative, the facility shall:

(a) be connected to both an approved waste water treatment system and an approved water supply system;

(b) provide proof that the existing water and sewer systems have the capability to handle the increased usage; and

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1998 MAR p. 172, Eff. 1/16/98; AMD, 2005 MAR p. 1393, Eff. 7/29/05.

Mont. Admin. R. 20.27.103 Location of Private Correctional Facilities in Proximity to Schools

(1) The closest property boundary of the private correctional facility must be at least one air mile from the closest property boundary of a public or nonpublic school.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-607, MCA
History: NEW, 1998 MAR p. 172, Eff. 1/16/98.

Mont. Admin. R. 20.27.104 Obtaining Public Support for Proposed Private Correctional Facility Sites

(1) Proposed sites for private correctional facilities must have community support. Proposers must obtain approval of the location of the private correctional facility from the local governing body or bodies.

(2) To gain public support and input into the siting process for private correctional facilities, proposers shall hold at least two public hearings in the county of the proposed site.

(a) If the nearest municipality to the proposed site is also the county seat, the public hearings shall be held in the municipality.

(b) If the nearest municipality to the proposed site is not the county seat, a hearing shall be held in the municipality, and a hearing shall be held in the county seat.

(3) If the proposed site is located within a municipality, the governing body of the municipality and the governing body of the county shall approve the location of the facility.

(4) If the proposed site is not located within a municipality, the county governing body shall approve the location of the facility.

(5) If the proposed site is located within seven and one-half air miles of an adjacent county, the proposers shall also hold a third public hearing in the municipality of the adjacent county that is located within closest proximity of the proposed site.

(6) Hearings must be held at a time convenient for the public to attend.

(7) The proposer shall provide adequate public notice of the hearings, which shall, at a minimum, meet the following criteria:

(a) if the proposed site is located in a rural area, the proposer shall publish notice of the public hearing in a local weekly newspaper as well as in the nearest daily newspaper;

(b) if the proposed site is located in or near a major municipality, the proposer shall publish notice of the hearing in at least one major newspaper of general circulation in the proposed site area;

(d) notices must also be published on the date of hearing, if the newspaper is published on that date; and

(e) notices must include:

(i) the date, time, and place of public hearing; and

(ii) the name and phone number of the entity responsible for requesting the hearing.

(8) In addition to the public notices, the proposer shall also provide specific notice to:

(a) state legislators in the county of the proposed site and all counties immediately adjacent to the proposed site;

(b) county and municipal elected officials in the county of the proposed site;

(d) the district school board(s) or superintendent(s) in the nearest municipality of the proposed site;

(e) county governing boards and county elected officials in each county immediately adjacent to the county of the proposed site; and

(f) all municipal governing bodies of municipalities located within 50 air miles of the proposed site.

(9) The entity holding the public hearing shall make reasonable accommodations for persons with disabilities who wish to participate in the hearing(s).

(10) The entity holding the public hearing shall ensure minutes are taken during the hearing, and:

(a) a copy of the minutes be transcribed;

(b) a copy of any written information received from hearing participants must be attached to the minutes; and

(11) The governing body may conduct the public hearings required herein.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-607, MCA
History: NEW, 1998 MAR p. 172, Eff. 1/16/98.

Mont. Admin. R. 20.27.105 Letters in Support of Proposed Sites for Private Correctional Facilities

(1) The proposer shall obtain evidence of approval by the local governing entity or entities of the political subdivision in which the proposed facility is to be located.

(2) If the governing entity or entities approve the proposed facility, proposers shall obtain letters of support and/or concern regarding the proposed facility from:

(a) the local school board(s) or superintendent(s) in the nearest municipality;

(b) the hospital board(s) or administrator(s) in the nearest municipality;

(d) the chief of police in the nearest municipality;

(e) each area state legislator in the county of the proposed site;

(f) each state district court judge or chief judge of the district, justice court judge, and city and/or municipal court judge in the nearest municipality and county of the proposed site; and

(g) the city attorney and county attorney in the nearest municipality and the county of the proposed site.

(3) If the proposed site is located within seven and one-half air miles of an adjacent county, proposers shall also obtain letters of support and/or concern from the officials listed in (2)(a) through (g) in the adjacent county.

(4) If the governing body adopts a resolution in support of the proposed facility, proposers shall provide supporting documentation of its intent to site a correctional facility to the director of the Montana Department of Corrections.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-607, MCA
History: NEW, 1998 MAR p. 1175, Eff. 1/16/98.

Mont. Admin. R. 20.27.106 Design and Construction of Private Correctional Facilities

(1) Design and construction of private correctional facilities must conform to applicable American Correctional Association standards for prisons.

(2) Prior to initiating facility construction, design and construction of private correctional facilities must be reviewed and approved by the Montana Department of Administration Architectural and Engineering Division (A&E), and the department.

(3) Prior to commencing operations, the prevailing proposer must obtain letters of approval from A&E and the department.

(4) Design and construction of private correctional facilities must conform to all applicable federal, state, and local codes.

(a) Compliance must be documented by the authority having jurisdiction.

(b) Successful proposers shall provide the department and A&E with copies of all building and occupancy permits.

(5) Any contractor or subcontractor performing construction of any type on private correctional facilities shall perform work in accordance with all state and local laws, rules and ordinances.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, 53-30-606, MCA
History: NEW, 1998 MAR p. 172, Eff. 1/16/98.

Subchapter 20.27.2 Licensing

Mont. Admin. R. 20.27.201 Purpose

(1) These rules establish the licensing requirements for the operation, security, and physical condition, as well as for the safety, health, treatment and discipline of persons confined in a private correctional facility within the state of Montana pursuant to 53-30-604 , MCA, providing that a private correctional facility conforms to applicable American Correctional Association (ACA), and National Commission of Correctional Health Care (NCCHC) standards, and providing that a facility achieves accreditation from ACA and NCCHC within three years of the date it begins operation, and maintains ACA and NCCHC accreditation thereafter.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.202 Definitions

(1) "Department" means the Department of Corrections provided for in 2-15-2301 , MCA.

(2) "Licensing agent" means the department employee designated to conduct site visits, conduct licensing studies and perform all other duties regarding the licensing of private prisons pursuant to these rules.

(3) "Private correctional facility" means a correctional facility that is either privately operated or privately owned and operated. The term does not include a private detention center or a regional jail governed by Title 7, chapter 32, part 22, MCA.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.203 Facility License

(1) Each private correctional facility within the state of Montana must be licensed by the department. The facility's current license must be prominently displayed in the general administration area of the facility.

(2) The department shall issue a one-year private prison license to any private correctional facility that has fulfilled the requirements of law, these rules, and the private prison siting and construction standards contained in ARM Title 20, chapter 27, subchapter 1.

(3) The department shall renew the license annually on the expiration date of the previous year's license if the facility continues to meet the requirements of law and these rules.

(4) The department shall issue a provisional license for up to six months to any license applicant which:

(a) has met all applicable requirements for fire, life safety and health standards; and

(b) has agreed in writing to comply fully with all requirements established by these rules within the time period covered by the provisional license.

(5) The department may renew a provisional license if the license applicant shows good cause for failure to comply fully with all of the requirements within the time period covered by the prior provisional license. The total time period covered by the initial provisional license and renewals may not exceed one year.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, 53-30-606, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.206 Licensing Procedures

(1) A private correctional facility must apply to the department for its initial license at least 90 days prior to the date it intends to be open for operation.

(2) The facility must apply in writing with a letter requesting a licensing review and a completed licensing application on a form provided by the department.

(3) A facility that has a current license under these rules and needs a yearly renewal license must send the request for a renewal licensing review to the department licensing agent at least 60 days prior to the date its current license expires on the renewal form provided by the department.

(4) Upon receipt of an application for license or renewal license, the department must conduct a licensing review to determine if the applicant meets the applicable licensing requirements established in the law and these rules. A licensing review or renewal licensing review must include an on-site visit, as well as interviews with inmates and correctional staff.

(5) The department's licensing agent may make periodic visits between licensing reviews to ensure the facility is remaining compliant with these rules. The scope of these visits is the same as for a licensing review.

(6) The facility must permit the department licensing agent:

(a) unlimited and immediate access to all areas of the facility at all times; and

(b) to inspect all written and electronic records related to the operation of the facility.

(7) If the licensing agent determines that the facility is not in compliance with these rules, the licensing agent shall notify the warden or superintendent in writing of the:

(a) exact nature of the licensing violations;

(b) action necessary to come into compliance with the rules; and

(8) In no case may the time allowed for the facility to attain compliance exceed one year.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, 53-30-606, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.207 License Revocation and Denial

(1) The department, after written notice to the applicant or licensee, may deny, suspend, restrict, revoke or reduce to provisional status a license upon finding that the facility:

(a) is not in substantial compliance with the licensing requirements established by these rules;

(b) has made any misrepresentations to the department, either negligent or intentional, regarding any aspect of its management or operation of the facility;

(c) has failed to comply with its plan to correct areas of noncompliance identified by a license review as required in ARM 20.27.204 within the allotted time;

(d) has failed to remedy practices or procedures identified by the department which continue to place the public, staff or offenders in imminent risk of escape, serious bodily harm or property damage;

(e) has failed to become accredited by both ACA and NCCHC within the first three years of operation;

(f) is in default of the contract with the state under which it is operating the facility; or

(g) has failed to comply with the provisions of 53-30-601 , et seq., MCA.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, 53-30-606, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.208 Hearing

(1) Any applicant or licensee who wishes to contest the department's licensing action refusing to grant a license, restricting, suspending, reducing to provisional, or revoking a license may request a contested case hearing as provided in 2-4-601 , MCA.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.210 Purpose and Mission

(1) The facility must have a written policy and procedure manual, approved by the department, which establishes the facility's mission, goals, objectives and standard operating procedures, and establishes a system of regular review of policies and procedures.

(2) To receive a license under these rules, the owner or operator of a private correctional facility must have a current contract with the department to operate the facility which complies with 53-30-608 , MCA.

(3) The facility must have a written mission statement that delineates the facility's mission within the context of the Montana correctional system.

(4) The facility may not house a person charged or convicted in another state or charged or convicted in federal court in another state.

(5) The facility must obtain accreditation by both ACA and NCCHC by the expiration of the third year of the facility's operation, and maintain ACA and NCCHC accreditation thereafter.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, 53-30-606, 53-30-608, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.212 Facility Warden

(1) The facility must be headed by a warden who is in charge of all inmates, personnel, volunteers, programs and activities connected with the facility.

(2) The qualifications for the position of warden are at a minimum, the following:

(a) bachelor's degree in an appropriate discipline; and

(b) demonstrated administrative ability and leadership.

(3) The degree requirement may be satisfied by completion of a career development program that includes work-related experience, training, or college credits at a level of achievement equivalent to a bachelor's degree.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.213 Facility Organization

(1) The facility must have a written document describing its organization. This description must include an organizational chart.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.214 Policy and Procedure Manual

(1) Policies and procedures for operating the facility must be:

(a) approved by the department; and

(b) contained in a manual that is accessible to all employees and the department.

(2) The facility must update and review this manual annually.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.216 Media Access

(1) The facility must have written policy, procedure and practice which:

(a) allow representatives of the media access to the facility consistent with preserving inmates' right to privacy and maintaining order and security; and

(b) provide for the dissemination of information about the facility to the public, governmental agencies, and the media.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, 53-30-606, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.217 Inmate Funds

(1) The facility must control inmate personal funds held by the facility in accordance with accepted accounting procedures.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.218 Staffing Requirements

(1) Facility staffing requirements for all categories of personnel must be determined on an ongoing basis to ensure that inmates have access to staff, programs and services.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.219 Background/Criminal Record Check

(1) The facility must obtain a background investigation criminal record check on all new employees in accordance with department requirements to detect any criminal convictions that relate specifically to job performance.

(2) The facility may not hire any person with a prior felony conviction without department approval.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.221 Drug-Free Workplace

(1) The facility must have written policy and procedure that support a drug-free workplace for all employees. The policy must:

(a) require that all potential employees pass a drug and alcohol test prior to beginning work at a facility; and

(b) include pre-employment testing and ongoing drug testing in conformity with state law.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.222 Personnel Files

(1) The facility must maintain on the premises a current, accurate, and confidential personnel record on each employee.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.223 Training and Staff Development

(1) The facility must provide staff training and development in accordance with state law.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.225 Inmate Population Movement (count)

(1) The facility must have a strict accountability system to physically count every inmate.

(2) The facility must have a written plan to control inmate movement within and outside the facility that is approved by the department.

(3) The facility must have written policy and procedures governing the transportation of inmates outside the facility.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, 53-30-610, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.227 Building and Safety Codes

(1) The facility must comply with all applicable federal, state and/or local building codes and fire safety codes.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, 53-30-606, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.229 Inmate Housing

(1) Inmate housing areas must conform to applicable ACA standards as to size, space, furnishings, toilets, and showers.

(2) Handicapped inmates must be housed in a manner that provides for their safety and security.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.230 Exercise and Recreation

(1) General population inmates must be provided access to at least one hour daily of indoor or outdoor exercise.

(2) The facility must provide adequate space for inmates to exercise in accordance with ACA standards.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.231 Visiting Areas

(1) The facility must provide sufficient space for inmates to receive visits from approved visitors.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.232 Fire and Life Safety

(1) The facility must have a written fire and life safety plan that is in accordance with the department policy on fire and life safety.

(2) All employees must be trained to this plan.

(3) The facility must have written policy, procedure and practice which:

(a) specify the facility's fire prevention regulations and practices; and

(b) provide for a comprehensive and thorough monthly inspection of the facility by a qualified fire and life safety officer.

(4) Facility specifications for the selection and purchase of facility furnishings must indicate the fire safety performance requirements of the materials selected.

(5) Facility policy must provide that the facility does not allow smoking or any tobacco products on premises.

(6) Facility policy must provide for:

(a) separate containers for combustible refuse at accessible locations throughout the facility;

(b) special containers for flammable liquids and rags used with flammable liquids, which containers are emptied and cleaned daily; and

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.233 Emergency Response Plan

(1) The facility must have a written emergency response plan that complies with the department's emergency preparedness plan. The plan must provide:

(a) that all personnel are trained in the implementation of the plan; and

(b) for a written evacuation plan to be used in the event of fire or major emergency which includes:

(i) location of building/room floor plans;

(ii) use of exit signs and directional arrows for traffic flow;

(iii) location of a publicly posted plan;

(iv) at least quarterly drills in all facility locations, including administrative areas; and

(v) provisions for the release of inmates from locked areas.

(2) Facility policy must provide that any work stoppage or riot plans are communicated only to appropriate supervisory personnel or other personnel directly involved in the implementation of those plans.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.235 Use of Force, Restraints, and Chemical Agents

(1) The facility must have use of force, use of restraints, and use of chemical agent policies that are approved by the department.

(2) The facility must have written policy and procedure governing the use of firearms which is approved by the department.

(3) Facility policy must provide that instruments of restraint such as handcuffs, leg irons or belly chains are never applied as punishment.

(4) Facility policy must provide that 4-point restraint is only applied with the approval of the warden.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.237 Security Manual

(1) The facility must maintain a written manual containing procedures for facility security and control, with detailed instructions for implementing these procedures. The manual must be approved by the department and available to all facility staff.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.238 Control of Contraband

(1) The facility must have written policy, procedure and practice to provide for search of the facility and inmates to control contraband and provide for its disposition which is approved by the department.

(2) Facility policy, procedure and practice must require that all pat searches, frisk searches, strip searches and body cavity searches are performed in accordance with ACA standards.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.239 Key and Tool Control

(1) The facility must have written policy, procedure and practice controlling the use of keys, tools, culinary and medical equipment.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.241 Injuries Incurred in a Facility Incident

(1) The facility must have written policy, procedure and practice to provide that all persons involved in an incident where chemical agents are used must receive immediate medical examination and treatment.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.242 Facility Security Threats, Escapes

(1) The facility must have written plans that specify procedures to be followed in situations that threaten facility security. Such situations include but are not limited to riots, hunger strikes, disturbances, escapes, and taking of hostages. These plans must be made available to all applicable personnel and reviewed annually and updated as needed.

(2) The facility must have on file written mutual aid agreements with the cooperating agencies in its area.

(3) The facility must have written policy, procedure and practice to ensure that pedestrians and vehicles leave and enter the facility at designated points in the perimeter.

(4) The facility's perimeter must be controlled by appropriate means to:

(a) provide that inmates remain within the perimeter; and

(b) prevent access by the general public without proper authorization.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, 53-30-606, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.243 Rules and Discipline

(1) The facility must have written policy, procedure and practice regarding disciplinary actions, approved by the department which:

(a) define in writing the rules of conduct, sanctions and procedures for violations;

(b) must be communicated to all inmates and staff; and

(c) provide that when an inmate allegedly commits an act covered by criminal law, the case is referred to appropriate court or law enforcement officials for consideration for prosecution.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.245 Special Management

(1) The facility must have written policy and procedure, approved by the department, to provide for removal from general population of inmates who threaten the secure and orderly management of the facility or persons that must be protected from harm by other inmates by placement in special units.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.246 Inmate Classification

(1) The facility must have written policy and procedure, approved by the department, for the objective classification of inmates remanded to its custody.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, 53-30-608, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.248 Inmate Rights

(1) The facility must have written policy, procedure and practice to ensure the right of inmates to have:

(a) access to courts and legal counsel;

(b) access to a law library, or a person trained in the law;

(c) reasonable access with media subject to limitations necessary to maintain order and security and protect inmates' privacy; and

(d) protection from unreasonable searches.

(2) The facility must have written policy, procedure and practice that protect inmates from personal abuse, corporal punishment, personal injury, disease, property damage, and harassment.

(3) The facility must have a written inmate grievance procedure that is made available to all inmates. The procedure must include at least one level of appeal.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, 53-30-606, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.250 Admission

(1) The facility must have written policy and procedure that govern the admission of inmates to the system approved by the department.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.251 Personal Property

(1) The facility must have written policy and procedure governing the control of inmate personal property and funds.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.252 Menu, Diets, Food Service

(1) The facility's dietary allowances and plan must be reviewed at least annually by a qualified nutritionist or dietician to ensure that it meets the nationally recommended dietary allowances for males age 25-50 years as provided by the National Research Council Food and Nutrition Board.

(2) The facility must have written policy, procedure and practice that:

(a) require food service staff take into consideration food flavor, texture, temperature, appearance and palatability; and

(b) provide for special diets as prescribed by appropriate medical or dental personnel.

(3) The facility must obtain documentation by an independent, outside source that food service facilities and equipment meet established state and local health and safety codes.

(4) The facility must have written policy, procedure and practice for adequate health protection for all inmates and staff in the facility, and inmates and other persons working in the food service, including the following:

(a) when the facility's food services are provided by an outside source, the facility must have written verification that the outside provider complies with state and local regulations regarding food service;

(b) all food handlers must be instructed to wash their hands upon reporting to duty and after using toilet facilities; and

(c) the director of food service or designee must monitor inmates and other persons working in food service each day for health and cleanliness.

(5) The facility must have written policy, procedure and practice requiring weekly inspections of all food service areas, including dining and food preparation areas and equipment, by administrative, medical or dietary personnel. These may include the person supervising food service operations or designee. Administrative, medical or dietary personnel must check refrigerator and water temperatures daily.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.253 Sanitation and Hygiene

(1) The facility must have written policy, procedure and practice requiring the following inspections:

(a) weekly sanitation inspections of all facility areas by a qualified staff member;

(b) comprehensive and thorough monthly inspections by a safety/sanitation specialist; and

(2) The facility's potable water source and supply, whether owned and operated by the public water department or the facility, must be certified by an independent source outside the facility to be in compliance with state and local law.

(3) The facility must provide for a waste disposal system in accordance with an approved plan by the appropriate regulatory agency.

(4) The facility must provide for the control of vermin and pests.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.254 Health Care

(1) The facility must have written policy, procedure and practice providing that all medical, psychiatric, and dental matters involving medical judgment are the sole province of the responsible physician, mental health provider, and dentist, respectively.

(2) The facility must ensure that:

(a) personnel who provide health care services to inmates have attained the appropriate state and federal licensure, certification, or registration requirements;

(b) the duties and responsibilities of such personnel are governed by written job descriptions approved by the health authority; and

(3) The facility must ensure that all treatment to inmates by health care personnel other than a physician, dentist, psychologist, optometrist, podiatrist, or other independent provider is performed pursuant to written or direct orders by personnel authorized by law to give such orders. Nurse practitioners and physician's assistants may practice within the limits of applicable laws and regulations.

(4) The facility must have written policy, procedure and practice that provide for emergency care and meet or exceed the ACA standards for adult correctional facilities.

(5) The facility must have written policy and practice that prohibit the use of inmates for medical, pharmaceutical, or cosmetic purposes. Policy may not preclude individual treatment of an inmate based on his or her need for a specific medical procedure that is not generally available.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.255 Pharmaceuticals

(1) The facility must have written policy, procedure and practice approved by the department which provide for the proper management of pharmaceuticals and address the following subjects:

(a) a formulary developed for the facility;

(b) prescription practices, including requirements that:

(i) psychotropic medications are prescribed only when clinically indicated as one facet of a program of therapy;

(ii) "stop order" time periods are required for all medications; and

(iii) the prescribing provider reevaluates a prescription prior to its renewal;

(d) maximum security storage and periodic inventory of all controlled substances, syringes and needles;

(e) dispensing of medicine in conformance with appropriate federal and state law;

(f) administration of medication by persons properly trained and under the supervision of the health authority and facility administrator or designee; and

(g) accountability for administering or distributing medications in a timely manner, according to physician orders.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.256 Health Screening

(1) The facility must have written policy, procedure and practice requiring medical, dental and mental health screening to be performed pursuant to ACA standards for adult correctional facilities.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, 53-30-606, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.258 Inmate Work Programs

(1) The facility must have written policy, procedure and practice that:

(a) require all able-bodied inmates to work unless assigned to an approved education or training program; and

(b) provide that inmates receive pay comparable to that received by inmates in the department's adult correctional facilities.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-132, 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.260 Mail, Telephone, Visiting

(1) The facility must have written policy and procedure governing the following:

(a) inmate correspondence;

(b) postage allowance for indigent inmates;

(d) inspection of incoming and outgoing inmate mail; and

(e) inspection for and disposition of contraband.

(2) The facility must have written policy, procedure and practice providing for:

(a) inmate access to telephones; and

(b) inmate visitation.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Mont. Admin. R. 20.27.261 Religious Programs

(1) The facility must have written policy, procedure and practice that provide for inmates to have the opportunity to participate in practices of their religious faith deemed essential by the faith's governing body, limited only by documentation showing threat to the safety of persons involved in such activity or that the activity itself disrupts order in the facility.

History

Authorizing statute(s): 53-30-604, MCA
Implementing statute(s): 53-30-604, MCA
History: NEW, 1999 MAR p. 2629, Eff. 9/10/99.

Chapter 20.28 Regional Correctional Facilities

Subchapter 20.28.1 Establishment of New Regional Correctional Facilities

Mont. Admin. R. 20.28.101 Definitions

As used in this subchapter, the following definitions apply:

(1) "ACA standards" means the most recent edition of the "American Correctional Association Standards for Adult Correctional Institutions" published by the American Correctional Association, 4380 Forbes Boulevard, Lanham, MD 20706-4322.

(2) "Actual prisoner days" means the sum of the number of inmates housed at the facility each day of the fiscal year, July 1 through June 30.

(3) "Allocated direct costs" means the costs that are common to more than one unit within the facility, such as food and utility costs. An allocated direct cost is divided between the departments within the facility using an appropriate ratio.

(4) "Allocation" means the assignment of costs, or a group of costs, to one or more areas in a reasonable and realistic proportion to the benefit each area receives.

(5) "Average daily population (ADP)" means the total number of inmates housed for the year divided by the number of days in the year and can reflect the average population for the state portion of the facility, the county portion of the facility, or the total facility average population.

(6) "Average population ratio" means the average daily state inmate population as a percentage of the total facility average daily population.

(7) "Bed ratio" means the number of contracted state prison beds as a percentage of total identified facility beds.

(8) "Capital costs" means the costs of the buildings, major improvements, and equipment (over $5,000) reduced by the actual amount of any federal and Montana Department of Corrections capital improvement grants.

(9) "Chart of accounts" means a listing of specific accounts utilizing the state/county budget, accounting, and reporting system (BARS) to categorize expenditure types in accordance with the Montana Department of Corrections per diem worksheet.

(10) "Department" means the Montana Department of Corrections (MDOC) established in 2-15-2301, MCA.

(11) "Depreciation" means an accounting method of recovering a capital cost expenditure.

(12) "Facility" means a regional correctional facility.

(13) "NCCHC standards" means the most recent edition of the "National Commission of Correctional Health Care Standards for Adult Correctional Institutions" published by the National Commission on Correctional Health Care, P.O. Box 11117, Chicago, IL 60611.

(14) "Operating costs" means expenditures excluding personal services that relate to the operation of the facility and directly benefit state inmates.

(15) "Per diem rate" means the cost per inmate per day that the department pays to the operator of the regional correctional facility and reflects both the direct and indirect costs of the operation.

(16) "Per diem worksheet" means the MDOC Per Diem Calculation Worksheet for Regional Correctional Facilities that the regional correctional facility and the department must use to calculate the regional correctional facility per diem rate.

(17) "Shared or common areas" means areas of the facility that are used by, or for the benefit of, both state prisoners and other facility inmates.

(18) "Square footage ratio" means the square footage of the state portion of the facility compared to the square footage of the whole facility and is expressed as a percentage.

(19) "State portion" means that part of the regional correctional facility that is utilized for the confinement or benefit of state prisoners over which the department has responsibility for custody.

(20) "Unallowable costs" means programs and services that do not have a direct benefit to persons confined in a regional correctional facility.

(21) "Volume ratio" means the cubic footage of the state portion of the facility compared to the cubic footage of the whole facility and is expressed as a percentage.

History

Authorizing statute(s): 53-30-507, MCA
Implementing statute(s): 53-30-503, 53-30-504, 53-30-505, 53-30-506, MCA
History: NEW, 2007 MAR p. 36, Eff. 1/12/07.

Mont. Admin. R. 20.28.104 Application to Establish a Regional Correctional Facility

(1) A local government entity, individual, corporation, partnership, association, or other private organization or entity may not construct or operate a regional correctional facility without the authorization of the department.

(2) A public or private entity that wishes to establish a regional correctional facility must first submit an application to the department for the department's initial approval.

(3) The application must provide substantiation and documentary evidence of the following criteria:

(a) the need for a regional correctional facility in the area;

(b) the financial ability and, in the case of a public entity, an appropriate resolution by its governing body authorizing the entity to enter into a long-term contract with the department; and

(c) the availability of rehabilitative services for inmates, including but not limited to providers of mental health and chemical dependency treatment, job, career, and vocational programming.

(4) A private entity must submit a resolution by the applicable local governmental governing body in which the local government states its approval for and willingness to have a regional correctional facility operated by a private entity within its jurisdiction.

(5) The department may not authorize a corporation to construct or operate a regional correctional facility unless it has first published a request for proposal for a regional correctional facility and it has selected the corporation using the competitive proposal process.

History

Authorizing statute(s): 53-30-507, MCA
Implementing statute(s): 53-30-504, 53-30-507, MCA
History: NEW, 2007 MAR p. 36, Eff. 1/12/07.

Mont. Admin. R. 20.28.107 Siting a Regional Correctional Facility

(1) A local government entity, individual, corporation, partnership, association, or other private organization or entity that wishes to construct or operate a regional correctional facility must submit siting information to the department for its approval of the site. The siting information must document and show how the site conforms to the requirements listed below.

(2) The department will approve the site if the local government entity, individual, corporation, partnership, association, or other private organization or entity that wishes to construct or operate a regional correctional facility obtains a resolution from the governing body of the community authorizing the site. The community governing body must document to the department that the selected site:

(a) can accommodate a secure facility;

(b) can support unobstructed surveillance of the facility;

(d) will conform to all applicable state statutes, rules and regulations, and applicable local zoning ordinances;

(e) is within 30 minutes emergency response time of an accredited hospital licensed by the state;

(f) is within 30 minutes emergency response time of a fulltime or volunteer fire department;

(g) is within one hour driving time of scheduled public or private transportation services that provide regular travel to and from the area of the facility;

(h) is within one hour driving time of an airport and landing field suitable for landing and take-off of charter-type aircraft and listed on the state system plan of airports as maintained by the Montana Department of Transportation, Aeronautics Division; and

(i) is located above a 100-year flood plain.

History

Authorizing statute(s): 53-30-507, MCA
Implementing statute(s): 53-30-507, MCA
History: NEW, 2007 MAR p. 36, Eff. 1/12/07.

Mont. Admin. R. 20.28.110 Construction Requirements for a Regional Correctional Facility

(1) The facility shall be a secure facility and have controlled access to and from the facility and other appropriate security measures so as to prevent unauthorized access to and from the facility.

(2) The facility must comply with all applicable federal, state, and local building and fire safety codes.

(3) The facility must be constructed according to ACA standards for secure facilities.

(4) The facility must have mutual aid agreements in place with applicable local agencies.

(5) A regional correctional facility must obtain accreditation by both the ACA and the NCCHC within three years of the date the facility accepts state inmates and must maintain the accreditation thereafter.

(6) This rule applies only to facilities constructed after the effective date of these rules.

History

Authorizing statute(s): 53-30-507, MCA
Implementing statute(s): 53-30-504, 53-30-507, MCA
History: NEW, 2007 MAR p. 36, Eff. 1/12/07.

Mont. Admin. R. 20.28.113 Policies, Procedures, Practices

(1) The regional correctional facility must maintain appropriate written policies and procedures contained in a manual that is accessible to all employees and the department.

(2) The facility shall establish policies, procedures, and practices for the operation, security, and physical condition of the facility, as well as policies, procedures, and practices for the safety, health, treatment, and discipline of persons confined in the state correctional facility portion of the regional prison.

(3) The department will determine which department policies, procedures, and practices the facility must adopt.

(4) The policies, procedures, and practices must conform to ACA and NCCHC standards.

(5) The facility must gain the department's initial approval of its policies and procedures before the department may allow the facility to begin to accept inmates into the facility.

(6) The facility must review and update its policies and gain the department's approval yearly after the initial approval.

(7) The facility must pass a pre-occupational compliance review conducted by the department and shall maintain at least a 90% compliance rating on all future department compliance reviews.

(8) The policies and procedures must address the following areas:

(a) media access, confidentiality, and dissemination of information;

(b) inmate issues including:

(i) inmate funds and accounting;

(ii) inmate housing;

(iii) inmate exercise and recreation;

(iv) inmate visiting, telephone access, and mail;

(v) inmate work, religious, vocational, and treatment programs;

(vi) inmate personal property;

(vii) inmate legal assistance; and

(viii) inmate sanitation and hygiene;

(i) background/criminal record check;

(ii) personnel files; and

(iii) training and staff development;

(d) safety and security issues including:

(i) inmate movement and count;

(ii) building and safety codes;

(iii) fire and life safety;

(iv) disaster and emergency response plan;

(v) use of force, restraints, and chemical agents;

(vi) facility security;

(vii) control of contraband, keys, and tools; and

(viii) facility security threats and escapes;

(e) inmate discipline, special management, and classification;

(f) inmate food service; and

(g) inmate health care, screening, and pharmaceuticals.

(9) This rule does not apply to facilities that are operational on the effective date of these rules.

History

Authorizing statute(s): 53-30-507, MCA
Implementing statute(s): 53-30-504, 53-30-507, MCA
History: NEW, 2007 MAR p. 36, Eff. 1/12/07.

Mont. Admin. R. 20.28.116 Licensing

(1) A regional correctional facility constructed or operated by an individual, corporation, partnership, association, or other private organization or entity must be licensed by the department in order to operate.

(2) The facility must prominently display its license in the general administration area of the facility.

(3) A license is not transferable.

(4) The facility must renew its license annually on the expiration date of the previous year's license.

(a) The department may renew the facility's license only if the department determines the facility shows it is in at least 90% compliance with the department's applicable policies, procedures, and practices and with ACA and NCCHC standards as determined on the department's compliance reviews.

(5) The department may deny, suspend, restrict, revoke, or reduce to provisional status a facility's license if it determines:

(a) the facility is not in at least 90% compliance with the department's applicable policies and procedures and with ACA and NCCHC standards;

(b) the facility has made material misrepresentations to the department regarding the facility's management or operation;

(c) the facility has failed to comply with a plan of correction designed to correct deficiencies in the facility's management or operation; or

(d) the facility has failed to become accredited by the ACA or NCCHC within its first three years or has failed to maintain its accreditation.

(6) A regional correctional facility constructed or operated by an individual, corporation, partnership, association, or other private organization or entity must apply to the department in writing for its initial license at least 90 days before the date it accepts state inmates, and must apply in writing at least 60 days prior to its license expiration to renew a current license.

(7) This rule does not apply to facilities that are operational on the effective date of these rules.

History

Authorizing statute(s): 53-30-507, MCA
Implementing statute(s): 53-30-504, 53-30-507, MCA
History: NEW, 2007 MAR p. 36, Eff. 1/12/07.

Mont. Admin. R. 20.28.119 Calculation of a Per Diem Rate-General Principles

(1) A per diem rate will be determined based on information provided by the regional correctional facility in accordance with the MDOC per diem calculation worksheet. The per diem rate will reflect actual allowable and allocable direct and indirect costs associated with the operation of the regional correctional facility that benefits state inmates. The rate represents the true cost of housing state inmates and is neither more than or less than the actual costs the regional correctional facility incurs because it houses state inmates. It reflects that neither the state nor the regional correctional facility subsidizes the operations of the other.

(2) The per diem rate the department pays the regional correctional facility will include payment for all the contractual provisions outlined in the contract between the facility and the department.

(3) The per diem rate will be calculated based on the information the regional correctional facility provides on the MDOC Per Diem Calculation Worksheet for Regional Correctional Facilities. The MDOC Per Diem Calculation Worksheet for Regional Correctional Facilities and instructions for completing it can be found on the department's web site at www.cor.mt.gov.

(a) The regional correctional facility's governing body must submit information to the department to document the calculation:

(i) the documentation must be provided in the required format; and

(ii) it must be included in the governing body's published comprehensive annual financial report (CAFR).

(4) The per diem rate will be based on effective management and services that are substantially equivalent to the management and services provided by the department and are based on ACA standards. The per diem rate will not include costs for services or items the facility added without the mutual agreement of the department and the regional correctional facility governing body. Approval will not be unreasonably withheld.

History

Authorizing statute(s): 53-30-507, MCA
Implementing statute(s): 53-30-507, MCA
History: NEW, 2007 MAR p. 36, Eff. 1/12/07.

Mont. Admin. R. 20.28.122 General Cost Principles Used for Calculating Per Diem

(1) To be allowable, costs must be reasonable, ordinary, necessary, and to some degree, benefit inmates housed in the state portion of the facility.

(2) Allowable costs must be:

(a) accounted for in accordance with generally accepted accounting principles;

(b) net of all applicable credits;

(d) calculated in accordance with the United States Office of Management and Budget (OMB) Circular A-87, Cost Principles for State, Local, and Indian Tribal Governments. Copies of OMB Circular A-87 can be obtained from the federal government or found on the U.S. Management and Budget web site at http://www.usdoj.gov/marshals/prisoner/omb87.pdf .

(3) Costs that do not benefit state inmates cannot be claimed on the MDOC Per Diem Calculation Worksheet for Regional Correctional Facilities.

(4) Costs may be direct if they have a direct benefit to state inmates or indirect if they only indirectly accrue to the benefit of state inmates. An example of a direct cost is the cost of prescription medication for state inmates. An example of an indirect cost is the cost for legal services, insurance, accounting, payroll, and human resources.

(5) Direct costs are further divided into costs that are shared and costs that are unshared. An example of a shared cost is the salary of the warden or administrator who spends some of his or her time managing the entire facility, both local and state portions. An example of an unshared cost is the case manager's salary who works only in the state portion of the facility.

History

Authorizing statute(s): 53-30-507, MCA
Implementing statute(s): 53-30-507, MCA
History: NEW, 2007 MAR p. 36, Eff. 1/12/07.

Mont. Admin. R. 20.28.125 Completing the Per Diem Worksheet Data Summary

(1) Section I-General Information: enter the name, telephone number, and physical address of the regional correctional facility, and the name of the facility administrator.

(2) Section II-Financial Data Summary: on line A enter the most recently concluded fiscal year that corresponds to the accounting period of the cost submission.

(a) The form will automatically populate lines B through H with the totals from Schedules B through G.

(b) The form will automatically compute the total operating costs by adding the totals of Schedules B through G represented on lines B through H.

(c) The form will automatically calculate the actual operating per diem based on the costs divided by the number of actual prisoner days.

(3) Section III-Inmate Population Information: Inmate population data must be submitted for the same accounting period as the cost data submitted. Enter the total daily inmate capacity, total actual annual prisoner days, and the average daily population of the regional correctional facility by prisoner type in the appropriate blocks. The average daily prisoner population data should be verifiable to daily count logs or similar control documents. If the facility houses local prisoners elsewhere for a fee, related costs of such an arrangement are not allowable for this rate computation and, therefore, those prisoners must be excluded from the prisoner population data.

(4) Section IV-Per Diem: enter the requested per diem rate for housing state inmates and the per diem rate the federal government pays to house federal inmates at the facility if applicable.

(5) Section V-Governing Body Contract: enter the name or names of the individuals authorized to represent and to act for the government body in per diem rate negotiations.

(6) Section VI-Certification Statement: the MDOC Per Diem Calculation Worksheet for Regional Correctional Facilities form may be prepared by an individual who has knowledge of, and access to, the budget and accounting records for which the cost data are based; however, the form must be signed by the chief financial officer of the governing body or the equivalent officer.

History

Authorizing statute(s): 53-30-507, MCA
Implementing statute(s): 53-30-507, MCA
History: NEW, 2007 MAR p. 36, Eff. 1/12/07.

Mont. Admin. R. 20.28.128 Completing Schedule B Part I-Personnel Salaries

(1) Regular and overtime salaries of personnel by position that work at the regional correctional facility on a full-time and part-time basis are allowable as direct operation costs. A list of these employees including name, title, and salary must be submitted to support Schedule B.

(2) The facility may list on Schedule B, Part I all personnel that work at or support the state portion of the facility, as long as the personnel's services in some way accrues to the benefit of state inmates and are listed on the staffing pattern attached to the contract. The facility shall use a bed ratio for shared direct personnel costs.

(3) Full-time and part-time salaries for the following personnel are usually allowable:

(a) regional correctional facility management officials;

(b) administrative support personnel;

(c) detention officers and other uniformed personnel assigned to the state portion of the regional correctional facility;

(d) maintenance personnel;

(e) cooks and aides;

(f) training officers;

(g) on-site medical personnel; and

(h) treatment counselors.

(4) Salaries of personnel who perform services that do not benefit state prisoners are not allowable. Examples are as follows:

(a) appointed and elected officials; e.g., the mayor, county attorney, county commissioners, state district court judges, justices of the peace, and city court judges;

(b) public defenders, probation and parole officers, other inmate attorneys, and other local court personnel; and

(c) law enforcement personnel assigned to nondetention functions; e.g., patrol officers, detectives, and investigators. (History: 53-30-507, MCA; IMP , 53-30-507, MCA; NEW , 2007 MAR p. 36, Eff. 1/12/07.)

(1) Generally, all related paid personnel benefit costs are allowable in the same ratio as the allocation in Part I.

(2) The following are types of personnel benefits that are allowable:

(a) retirement plan costs;

(b) FICA payroll taxes;

(d) workers' compensation insurance; and

(e) employee uniforms, including shoes, if not claimed as a direct operating cost under Schedule D.

History

Authorizing statute(s): 53-30-507, MCA
Implementing statute(s): 53-30-507, MCA
History: NEW, 2007 MAR p. 36, Eff. 1/12/07.

Mont. Admin. R. 20.28.131 Completing Schedule B Part Ii - Personnel Benefits

(1) Generally, all related paid personnel benefit costs are allowable in the same ratio as the allocation in Part I.

(2) The following are types of personnel benefits that are allowable:

(a) retirement plan costs;

(b) FICA payroll taxes;

(d) workers' compensation insurance; and

(e) employee uniforms, including shoes, if not claimed as a direct operating cost under Schedule D.

History

Authorizing statute(s): 53-30-507, MCA
Implementing statute(s): 53-30-507, MCA
History: NEW, 2007 MAR p. 36, Eff. 1/12/07.

Mont. Admin. R. 20.28.134 Completing Schedule C-Consultants and Contract Services

(1) Costs for consultant and contract services are allowable and can be included on Schedule C to the extent that they benefit state inmates and are required by contract.

(2) The following contract services are usually allowable either fully or using a bed ratio if only a portion of the cost benefits state inmates:

(a) in-house medical, dental, and mental health care. Medical co-payments paid by inmates must be offset against any claimed medical costs;

(b) custodial and maintenance;

(d) GED and other educational or treatment programs; and

(e) food service.

(3) The following types of contract costs are usually not allowable:

(a) prescription/pharmacy, if the state is billed separately for such medication; and

(b) electronic monitoring of inmates and home detention programs.

History

Authorizing statute(s): 53-30-507, MCA
Implementing statute(s): 53-30-507, MCA
History: NEW, 2007 MAR p. 36, Eff. 1/12/07.

Mont. Admin. R. 20.28.137 Completing Schedule D-Other Direct Operating Costs

(1) To be claimed on the MDOC per diem calculation worksheet, all direct costs must be reasonable and allowable under OMB Circular A-87 guidelines and supported by paid invoices, transactions listings, or general ledger entries. The following are examples of cost categories that can be claimed on the MDOC per diem calculation worksheet and the way in which they may be calculated:

(a) inmate compensation (calculated as actual cost);

(b) food and kitchen supplies (prorated using the bed ratio);

(d) prescriptions (calculated as actual cost);

(e) medical care supplies (prorated using the bed ratio);

(f) bedding and linens (calculated as actual cost or prorated using the bed ratio);

(g) toiletries (calculated as actual cost or prorated using the bed ratio);

(h) employee uniforms, including shoes (only for facility staff, not including subcontractors and only if not included as a personnel benefit and prorated using the bed ratio);

(i) safety and sanitation supplies and services (prorated using the bed ratio);

(j) maintenance supplies (prorated using the bed ratio);

(k) office supplies and postage (calculated as actual cost or prorated using the bed ratio);

(l) minor tools and equipment. Current year purchases of equipment costing less than $5,000 (prorated using the bed ratio if applicable). The cost of equipment claimed here cannot be included on Schedule F-Equipment Cost for the purpose of computing allowable depreciation charges;

(m) recreation and education supplies. If any costs are reimbursed by the Inmate Welfare Fund, the reimbursement must be offset against the claimed cost (calculated as actual cost or prorated using the bed ratio);

(n) telephone and communication supplies (calculated as actual cost or prorated using the bed ratio);

(o) property insurance (prorated using the square footage ratio);

(p) employee training, education, conferences, and subscriptions related to the operation of the state portion of the facility;

(q) travel expenses (based on the regional correctional facility's per diem expense schedule or the state's schedule);

(r) interest (prorated using the bed ratio). Debt services (principle) is unallowable and any earnings on debt service reserve funds and interest earned on the borrowed funds pending payment of expenses must be offset against the claimed cost; and

(s) utilities (prorated using the square footage or volume ratio).

(2) Any amounts incurred in support of local court and/or law enforcement activities are not allowable. The following direct costs are not allowable:

(a) fees paid to other local governments for the housing of local prisoners;

(b) off-site hospital and medical care for state inmates if billed and paid separately by the state;

(d) costs for transporting and producing local inmates at local court proceedings;

(e) contributions to a contingency reserve or any similar provision, such as for future vehicle or equipment purchases, or for any other events the occurrence of which cannot be foretold with certainty as to time, or intensity, or with an assurance of their happening;

(f) contributions and donations, including cash, property, and services regardless of the recipient;

(g) membership fees in organizations engaged in lobbying;

(h) legal expenses for prosecution of claims against the state and those incurred in connection with any criminal, civil, or administrative proceedings commenced by the state;

(i) fines, penalties, damages, and other settlements resulting from violations (or alleged violations) of, or failure of the governmental unit to comply with federal, state, local, or Indian tribal laws and regulations, except when incurred as a result of compliance with specific provisions of the contract between the state and the regional correctional facility;

(j) costs for entertainment, including amusement, diversion, and social activities and any costs directly associated with purchase of tickets to shows or sporting events, meals, lodging, rentals, transportation, and gratuities;

(k) required repayments of unused grant monies to grantors; and

(l) costs directly associated with any federal or state grants awarded to the regional correctional facility.

(3) All revenue generated from the regional correctional facility's operation must be offset against the direct costs claimed on the MDOC Per Diem Calculation Worksheet for Regional Correctional Facilities, Schedule D. Examples of credits that must be reported are:

(a) insurance rebates, recoveries, or indemnities on losses;

(b) employee meal program charges; and

History

Authorizing statute(s): 53-30-507, MCA
Implementing statute(s): 53-30-507, MCA
History: NEW, 2007 MAR p. 36, Eff. 1/12/07.

Mont. Admin. R. 20.28.140 Completing Schedule E-Cost Allocation Plans/Indirect Cost Proposals

(1) Other local units of the governing body provide certain services to the state portion of the regional correctional facility on a centralized basis. In order for the costs of those units of the governing body to be included in the per diem rate computation, a central service cost allocation plan is needed to identify and assign part of those costs to the state portion of the regional correctional facility's operation on a reasonable and consistent basis. All costs and other data used to distribute the cost included in the plan should be supported by formal accounting and other records that support the propriety of the cost assignments. To include indirect costs in the per diem rate computation:

(a) cost allocation plans must be submitted to the department over the signature of the governing body's chief financial officer or equivalent officer. The department will certify the plan if the documentation reflects accurate financial information and is completed in accordance with guidelines in OMB Circular A-87;

(b) the costs must benefit both the state and other local governing body activities, must be distributed to all activities in reasonable proportions to the benefits received, and must be supported by subsidiary records that allow confirmation of the accuracy of the distributions;

(c) similar or identical costs cannot be charged as direct costs on the per diem worksheet. The following categories require scrutiny to ensure duplicate or unallowable claims are not made: travel expenses, legal expenses, conferences, professional services, and miscellaneous expenses; and

(d) the pre-allocation cost basis of each category claimed must be verifiable.

(2) The following are examples of categories of indirect costs, a portion of which may be assigned to the detention facility for inclusion in the per diem rate computation provided they have not already been included as a direct cost:

(a) motor pool operations, fuel, and maintenance provided that vehicle expense is not included as a separate line item on the per diem worksheet;

(b) procurement, personnel, administrative, financial, and accounting support provided by staff of the governing body and/or the nondetention operations of the police/sheriff department.

(3) The governing body's operating costs not related to the detention facility's operation cannot be included for per diem rate computation purposes. For example, costs of a water treatment facility would not be allowed if the regional correctional facility is not served by the facility.

(4) If the governing body does not calculate and submit to the department an indirect cost plan which reflects accurate financial information and is completed in accordance with guidelines in OMB Circular A-87, then the allowable rate for indirect costs is 8% of the governing body's direct operating costs.

History

Authorizing statute(s): 53-30-507, MCA
Implementing statute(s): 53-30-507, MCA
History: NEW, 2007 MAR p. 36, Eff. 1/12/07.

Mont. Admin. R. 20.28.143 Completing Schedule F-Equipment Cost

(1) Equipment is an article of nonexpendable, tangible personal property having a useful life of more than one year and an acquisition cost of more than $5,000. Cost allowances relating to the use of fixed assets on hand may be made through depreciation or a use-allowance.

(2) If the depreciation method is used, records indicating the amount of depreciation taken each period must be maintained. For either method, charges must be supported by adequate property records, and physical inventories must be taken at least every two years (a statistical sampling approach is acceptable) to ensure that assets exist and are in use.

(3) Without a formalized equipment depreciation policy at the local level, a use-allowance of 6 2/3% with a 15-year write-off period is to be used to compute allowable equipment use-allowance charges.

(4) The following are allowable when computing equipment depreciation or use-allowance charges allocable to the state portion of the regional correctional facility:

(a) equipment meeting the governing body's established capitalization criteria;

(b) equipment used in the general operation of the regional correctional facility; and

(5) The following are not allowable when computing equipment depreciation or use-allowance charges allocable on the MDOC Per Diem Calculation Worksheet for Regional Correctional Facilities:

(a) payments to cash reserves for acquisitions made or planned after the accounting period of the cost submission;

(b) the cost of equipment received from the state government through the state surplus property program or similar programs or purchased with funds received from the state government specifically for the purchase of the identified piece of equipment;

(c) the cost of equipment contributed by or for the governing body, or a related donor organization, in satisfaction of a matching requirement;

(d) the cost of vehicles used for inmate transportation if the facility does not provide the state inmate transportation services;

(e) the cost of surplus, idle, fully depreciated, or inappropriate equipment items;

(f) the cost of equipment below the established capitalization threshold; and

(g) the cost of equipment in use in programs in which state inmates do not participate.

History

Authorizing statute(s): 53-30-507, MCA
Implementing statute(s): 53-30-507, MCA
History: NEW, 2007 MAR p. 36, Eff. 1/12/07.

Mont. Admin. R. 20.28.146 Completing Schedule G-Building Depreciation

(1) A depreciation or use-allowance charge is allowed for all buildings utilized in the performance of the contract with the state. Without a formal building depreciation policy at the local level, a use-allowance not exceeding 2% of acquisition costs should be used to compute the allowable building use-allowance charge.

(2) The original construction cost must be reduced by the amount of any department or federal grants used for the construction.

(3) The following are allowable when computing building depreciation or use-allowance charges allocable to the contract with the department:

(a) the cost of building additions, renovations, and improvements; and

(b) the cost of land improvements, such as paved parking areas, fences, and sidewalks.

(4) The following are not allowable when computing building depreciation or use allowance charges allocable to the contract with the state:

(a) the cost of land;

(b) any portion of the cost of buildings borne by or donated by the federal or state government;

(c) any portion of the cost of buildings contributed by or for the governing body unit, or a related donor organization, in satisfaction of a matching requirement; and

(d) cost assignable to space occupied by nondetention functions of the governing body.

(5) Debt service is unallowable and any earning on debt service reserve funds and interest earned on the borrowed funds pending payment of expenses must be offset against the claimed cost.

History

Authorizing statute(s): 53-30-507, MCA
Implementing statute(s): 53-30-507, MCA
History: NEW, 2007 MAR p. 36, Eff. 1/12/07.

Mont. Admin. R. 20.28.149 Review and Revision of Per Diem Rate

(1) The current year per diem rate will be calculated using the previous fiscal year's actual expenditures and adjustments for expected costs over the biennium.

(a) Appropriate adjustments will be mutually agreed upon by the governing body and the department.

(b) Examples of appropriate adjustments are: expected pay increases from union negotiations, food costs, utility increases, and other items that can change due to inflation.

(2) In the second year of a per diem calculation period, the governing body will receive adjustments to reflect actual costs incurred.

(a) The governing body must submit financial information to document actual expenditures.

(b) The DOC will reimburse the governing body in a lump sum for expenditures that were more than calculated.

(c) If the expenditures were less than the per diem calculation assumed, the governing body will reimburse the department.

(3) The per diem rate for the second year of a per diem period will be calculated based on the first year's per diem and adjustments in the cost allocation plan and indirect cost plan based on actual expenditure information submitted to the department.

(4) The per diem rate calculation and determination will respect the budget process timeframes of the state and the facility governing bodies.

(5) Thirty days before a per diem rate change goes into effect, the department will publish on its web site the calculation data for each facility and will send the data to interested persons. The department will accept public comment on the rate change for 20 days after it is published on the web site. The department will publish on the web site its responses to the comments.

History

Authorizing statute(s): 53-30-507, MCA
Implementing statute(s): 53-30-504, 53-30-507, MCA
History: NEW, 2007 MAR p. 36, Eff. 1/12/07.

Mont. Admin. R. 20.28.152 Billing and Department Payment

(1) For billing, facilities must submit a vendor invoice to the department monthly. The invoice must contain the following data for the preceding month:

(a) for each inmate incarcerated in the facility:

(i) the name and adult offender number of each inmate that was incarcerated in the facility the preceding month;

(ii) the date each inmate's incarceration began and if applicable, the date it ended; and

(iii) based on the dates of incarceration including the first day, but not the last, the total number of days each inmate spent incarcerated in the facility; and

(b) the amount due the facility based on the number of inmate days times the fixed rate per inmate per day.

(2) The department shall pay each correctly submitted invoice within 30 days of receipt. The department will make reasonable efforts to pay the governing body by wire transfer in accordance with the governing body's written instructions.

History

Authorizing statute(s): 53-30-507, MCA
Implementing statute(s): 53-30-504, 53-30-507, MCA
History: NEW, 2007 MAR p. 36, Eff. 1/12/07.

Mont. Admin. R. 20.28.155 Dispute Resolution

(1) There will be a dispute resolution process for per diem calculation issues covered under these rules.

(2) In the event that the department and the operator of a regional correctional facility cannot reach agreement on any issue covered under these rules, either party may request mediation.

(3) The mediator shall be selected by mutual agreement of the department and operator of the facility from a list of settlement masters maintained by the district court of the first judicial district court.

(4) The cost of the mediator shall be equally divided by the parties who engage in the mediation. Each party shall bear its own costs for participation in and presentation to the mediator.

(5) If this dispute resolution process does not resolve the dispute, either party is free to pursue other appropriate remedies.

(6) This dispute resolution process is not available for disputes over contract matters. The parties must use the dispute resolution provisions outlined in the contract to resolve contract disputes.

History

Authorizing statute(s): 53-30-507, MCA
Implementing statute(s): 53-30-504, 53-30-507, MCA
History: NEW, 2007 MAR p. 36, Eff. 1/12/07.