103 CMR 460.00 — Transfer procedures for the Massachusetts Treatment Center

103 CMR: DEPARTMENT OF CORRECTION

103 CMR 460.00: TRANSFER PROCEDURES FOR THE MASSACHUSETTS TREATMENT

CEN TER Section

103 CMR 460.00 Transfer procedures for the Massachusetts Treatment Center

460.01 Purpose

460.01: Purpose

460.02 Statutory Authorization

460.02: Statutory Authorization

460.03 Cancellation

460.03: Cancellation

460.04 Applicability

460.04: Applicability

460.05 Access to 103 CMR 460.00

460.05: Access to 103 CMR 460.00

460.06 Definitions

460.06: Definitions

460.07 Criteria for Transfer

460.07: Criteria for Transfer

460.08 Transfer Board Process

460.08: Transfer Board Process

460.09 Subsequent Transfer Board Hearings

460.09: Subsequent Transfer Board Hearings

460.10 Tracking of Transferred Treatment Center Residents

460.10: Tracking of Transferred Treatment Center Residents

460.11 Return of Transferred Residents to the Treatment Center

460.11: Return of Transferred Residents to the Treatment Center

460.12 Time Limits

460.12: Time Limits 460:13: Status of Transferred Residents

460.14 Emergency

460.14: Emergency

460.15 Responsible Staff

460.15: Responsible Staff

460.16 Annual Review

460.16: Annual Review

460.17 Severability

460.17: Severability

460.01 Purpose

460.01: Purpose The purpose of 103 CMR 460.00 is to establish rules and procedures governing the transfer of sexually dangerous persons who have also been sentenced for a criminal offense and whose sentences have not expired between the Massachusetts Treatment Center and other correctional institutions designated by the Commissioner of Correction.

460.02 Statutory Authorization

460.02: Statutory Authorization 103 CMR 460.00 is issued pursuant to M.G.L. c. 123A, §§ 2 and 2A; M.G.L. c. 124, § 1 (b), (c), (f) and (q); and M.G.L. c. 127, §§ 20, 49A, 97 and 97A.

460.03 Cancellation

460.03: Cancellation 103 CMR 460.00 cancels all previous institution policy statements, bulletins, directives, orders, notices, rules and regulations regarding transfer which are inconsistent with this policy.

460.04 Applicability

460.04: Applicability 103 CMR 460.00 applies to all Department employees and to all inmates at state, county and federal correctional institutions who are serving a sentence imposed by the Commonwealth of Massachusetts and to residents housed at the Treatment Center located in Bridgewater, Massachusetts who have also been sentenced for a criminal offense and whose sentences have not expired.

460.05 Access to 103 CMR 460.00

460.05: Access to 103 CMR 460.00 103 CMR 460.00 shall be maintained within the Central Policy File of the Department of Correction and will be accessible to all Department employees. A copy this policy will also be maintained at each Superintendent's Central Policy File and at each resident or inmate library.

460.06 Definitions

460.06: Definitions Behavior Review Committee (BRC) - A committee of Treatment Center staff which determines the validity of any report of inappropriate behavior or a violation of any institutional rules, Department regulations, or laws of the Commonwealth or the United States committed by any Treatment Center resident and, upon a finding that such a report is valid, may impose sanctions upon a Treatment Center resident.

103 CMR: DEPARTMENT OF CORRECTION

460.06 continued

460.06: continued Business Day - Monday through Friday, exclusive of state or federal holidays.

Classification Board - As defined in 103 CMR 420.00, a committee of institutional or departmental

employees which makes recommendations to the superintendent concerning an inmate's program

participation or placement within the Department of Correction.

Clinical Director of Treatment - The Treatment Center staff person responsible for the development,

implementation and review of the clinical components at the Massachusetts Treatment Center.

Commissioner - Commissioner of Correction.

Community Access Board (CAB) - A board established pursuant to M.G.L. c. 123A, § 6A and

consisting of five members appointed by the Commissioner, whose function is to consider a person's placement within a community access program and conduct an annual review of Treatment Center residents' sexual dangerousness. Correctional Institution - A state, county or contract correctional facility located within Massachusetts. Department - The Department of Correction Director of Classification - The Superintendent's designee who is responsible for overseeing and coordinating the classification and transfer board processes at the Treatment Center. Emergency - A threat to the safety, security or orderly administration of the Treatment Center or to the safety or security of staff, residents, or other persons. Resident - A person committed to the Treatment Center pursuant to M.G.L. c. 123A as a Sexually Dangerous Person.

Sexually Dangerous Person - As defined in M.G.L. c. 123A, § 1: any person who has been:

(a) convicted of or adjudicated as a delinquent juvenile or youthful offender by reason of a sexual offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in sexual offenses if not confined to a secure facility; (b) charged with a sexual offense and was determined to be incompetent to stand trial and who suffers from a mental abnormality or personality disorder with makes such person likely to engage in sexual offenses if not confined to a secure facility; or (c) previously adjudicated as such by a court of the commonwealth and whose misconduct in sexual matters indicates a general lack of power to control his sexual impulses, as evidenced by repetitive or compulsive sexual misconduct by either violence against any victim, or aggression against any victim under the age of 16 years, and who, as a result, is likely to attack or otherwise inflict injury on such victims because of his uncontrolled or uncontrollable desires. Superintendent - The chief administrative officer of the Treatment Center. Transfer - The act of moving a Treatment Center resident from the Treatment Center to another correctional facility within Massachusetts upon approval of the Commissioner or a designee. Transfer Board - The board established pursuant to M.G.L. c. 123A, § 2A whose function is to make recommendations for the transfer of a Treatment Center resident from the Treatment Center to another correctional institution designated by the Commissioner. Treatment C enter - As created by M.G.L. c. 123A, § 2 the correctional institution for the care, custody, treatment, and rehabilitation of persons adjudicated as being sexually dangerous.

103 CMR: DEPARTMENT OF CORRECTION

460.07 Criteria for Transfer

460.07: Criteria for Transfer (1) The resident may be transferred based upon any one of the criteria listed in 103 CMR 460.07(1)(a) through (e): (a) Unamenability to treatment; or (b) Unwillingness to follow treatment recommendations; or (c) Lack of progress in treatment. For purposes of 103 CMR 450.07(1)(a ) through 460.07(1)(c) the criteria pertaining to treatment failure will be met if, in the judgment of the Clinical Director of Treatment, the resident has failed appreciably to participate in treatment or to achieve treatment goals during the previous six month period. (d) The danger posed by the resident to other residents or to staff at the Treatment Center; or (e) The degree of security necessary to protect the public. For the purpose of 103 CMR 460.07(1)(d), the criteria relating to security will be met if the resident poses a danger of physical harm to himself or others as manifested through threats or assaults, escape, attempted escape, or a serious risk of escape. (2) The resident may request to be transferred voluntarily upon a written request to the clinical director.

460.08 Transfer Board Process

460.08: Transfer Board Process (1) Applicability - OnlyTreatment Center residents who are civilly committed to the Treatment Center who have also been sentenced for a criminal offense and whose sentences have not expired, may be referred to the transfer board for consideration of possible transfer. (2) Referral - The Superintendent, the Clinical Director of Treatment, the Community Access Board, or the Behavior Review Committee may refer the resident to the transfer board to make recommendations regarding the transfer ofa resident fromthe Treatment Center to another correctional institution. All re fe rra ls to the transfer board shall be in writing on a form approved by the Superintendent. The written referral shall include a statement explaining the basis for the referral. A copy of the written referral shall be provided to the resident within 48 hours from the date that the referral is signed by the referring party. A resident may be referred to the transfer board upon a reasonable belief that he meets the transfer criteria as set forth in 103 CMR 460.07. (3) Initial Transfer Board Hearing - Upon referral of a resident to the transfer board, the transfer board shallconvene to make a recommendation concerning a Treatment Center resident's transfer from the Treatment Center to another correctional institution. The following standards shall be adhered to regarding the initial transfer board hearing: (a) Board Composition - The transfer board shall be comprised of the director of classification or a designee, the clinical director of treatment or a designee, and the director of security or a designee. One board member shall be designated by the Superintendent to act as Chairperson, and shall be responsible for the overall quality of the review process and complying with M.G.L. c. 123A, § 2A. All transfer board decisions require a simple majority vote. (b) Notice of Hearing - The Treatment Center resident shall be provided with 30 days advance written notice prior to his transfer board. Such notice may be waived by the resident in writing. The written notice shall also inform the resident of the purpose of the hearing, the reasons for the hearing, the procedures to be followed at the hearing, and a listing of the date, time, and place of the hearing. Within ten days of the hearing date, the resident shall be provided with the names of any witnesses to appear before the transfer board and copies of documents to be considered by the transfer board or a list of such documents if the documents a re o therwise available to the resident (e.g. the resident's Treatment Center record). Within one day of the hearing date, the resident shall be provided a list of the board members who will preside over the hearing. (c) Representation - The resident may be represente d b y a n a tto rney or law student at the hearing. It is the resident's responsibility to secure such representation and the Department shall afford him the opportunity to do so. The Department shall reschedule the he a ring once at the request of the attorney or law student. The Department may, but is under no obligation to, reschedule a hearing a second time to accommodate the legal representative's schedule.

103 CMR: DEPARTMENT OF CORRECTION

460.08 continued

460.08: continued (d) Request for Witnesses and Evidence - At least ten days before the hearing date, the resident shall make a written request to the Chairp e rso n fo r a ny witnesses or any evidence which the resident wishes to present on his own behalf. The request shall include a brief summary of the expected testimony of any proposed witness. The Chairperson may rule on the resident's request either prior to the hearing or at the hearing. The Chairperson shall allow the resident to call such witnesses or to present such witnesses when permitting him to do so will not be unduly hazardous to personal or institutional safety. The factors the Chairperson may consider when ruling on a resident's request to call witnesses, question witnesses or present other documentary or physical evidence shall include, but not be limited to, the following:

1. Relevance;
2. Whether the evidence is cumulative or repetitive;
3. Whether the presence of the witness is likely to create an imminent threat of physical harm;
4. Unavailability of a staff person for a prolonged period of time due to illness, vacation or other authorized absence, or for other good cause;
5. Failure of the resident to provide a brief summary of the expected testimony of a proposed witness. (e) Case Presentation - The party referring the resident to the transfer board may make an oral and/or written presentation to the transfer board relevant to the applicable criteria for transfer set forth in 103 CMR 460.07. The referring party may designate another Treatment Center staff member to make the written and/or oral presentations. If the BRC or the CAB is the referring party, the Chairperson of the referring party may designate a member of the referringbody to make the oral and/or written presentations. (f) Cross-examination - Subject to the criteria set forth in 103 CMR 460.08(3)(d), the resident or his representative shall be afforded the opportunity to cross-examine any witnesses appearing before the transfer board. (g) Resident Presentation - Following the referring party's presentation, the Treatment Center resident scheduled for review may present any information relevant to the question of the resident's transfer. Transfer board members may direct questions to the resident. A legal representative may be allowed to make a presentation at the hearing to the transfer board members for their consideration. In the event the resident is unwilling to attend the transfer board hearing, the Chairperson of the board may proceed with the hearing. (h) Transfer Board Decision- The board shall base its decision on the preponderance of evidence presented during the hearing. The board’s decision shall be determined by a majority vote no later than 48 hours following the case and resident presentations. After the board votes, the chairperson of the board or a designee shall orally notify the resident of the board’s decision. The board may take the following actions.
6. The board may determine that the resident should not be transferred from the Treatment Center. In such case, the determination of the board shall be final. The board shall issue a written decision. Nothing, however, shall preclude a subsequent referral of the resident to the transfer board, based upon the criteria set forth in 103 CMR 460.07.
7. The board may delay its recommendation concerning the resident's transfer to another correctional facility. If the b oard delays its recommendation, the members of the board considering the resident's case shall set a date to reconvene. The date may not be longer than six months from the date of the initial transfer board hearing. The resident shall be notified orally of this date following the board's vote. At that date, the same board members shall reconvene to make a recommendation regarding the resident's transfer. The board may not delay its recommendation a second time. The reconvened hearing shall proceed in accordance with 103 CMR 460.08(3)(c) and (d) and (f) through (k).
8. The board may recommend the resident's transfer to another correctional facility if it finds that the criteria set forth in 103 CMR 460.07 have been met. The board's recommendation, and reasons for a minority vote shall be recorded in the Chairperson's written summary report.

103 CMR: DEPARTMENT OF CORRECTION

460.08 continued

460.08: continued (i) The Transfer Bo a rd Summary - If at the end of the transfer board hearing, the board recommends the resident's transfer to another correctional institution, a written summary of the board' s recommendation shall be prepared by the Chairperson or another board member designated by the Chairperson. All summaries of board recommendations must be signed by the board Chairperson. A copy of the summary presented to the resident shall serve as written notice of the board's decision and the written summary shall indicate the date a copy was presented to the resident. A copy of the summary, photocopies of documents the board relied upon in arriving at its recommendation, and other related material shall be submitted to the Superintendent or a designee within ten business days of the close of the hearing. The summary shall contain, but shall not be limited to:

1. The date the resident's criminal sentence(s) are scheduled to expire;
2. The board's findings with regard to the criteria for transfer set forth in 103 CMR 460.07;
3. The minimum conditions and criteria for consideration of the resident's future return to the Treatment Center; and
4. The reasons for a minority vote, if there was one; and
5. A recommendation as to the appropriate classification and placement of the resident within the Department of Correction. (j) Superintendent's Review - If the transfer board recommends the resident's transfer to another correctional facility, the transfer board Chairperson shall submit to the Superintendent copies of the transfer board's written summary of the board's recommendation for transfer, classification and placement, and all accompanying documentation, as set forth in 103 CMR 460.08(3)(i). If the Superintendent referred the resident to the transfer board pursuant to 103 CMR 460.08(2), the Superintendent shall designate an impartial Treatment Center staff member to review the transfer board's recommendation. Within ten business days after receipt of the transfer board's recommendation concerning the resident's transfer, the Superintendent or a designee shall render a written decision concerning the resident's transfer, classification and placement. (k) Resident Appeal - Where a Treatment Center resident disagrees with any recommendation of the transfer board, the resident may submit a written appeal of the transfer board's recommendation to the Superintendent within five business days of written no tification of the board's recommendation. If the Superintendent referred the resident to the transfer board pursuant to 103 CMR 460.08(2), the Superintendent shall designate an impartial Treatment Center staff member to review the resident's appeal. The Superintendent or designee shallrespond inwritingto the resident within ten business days, noting the result of the appeal. (l) The Commissioner's Decision - To finalize the transfer process, the Superintendent's decision concerning the resident's transfer, classification and placement shall be submitted for approval to the Commissioner or a designee. (m) Emergency Transfers.
6. Whenever a resident is referred to the transfer board for reasons set forth in 103 CMR 460.07(2)(d) and (e) the Superintendent or a designee may transfer a resident to another correctional institution prior to the resident' s transfer board hearing if the Superintendent determines that the resident: a. poses an imminent threat of serious physical harm to other residents or staff, or poses an imminent threat of escape, or needs to be transferred for his own safety; or b. that reasons of security or considerations pertinent to an ongoing investigation preclude the resident's housing in any unit of the Treatment Center pending the transfe r board hearing.
7. A transfer board hearing shall be held within 20 business days of such an emergency transfer. However, where a BRC investigation hearing or any investigation is pending, the transfer board hearing shall initially consist only of the resident's security requirements; specifically whether or not he continues to require residency outside of the Treatment Center. Within ten business days of completion of the BRC hearing and/or compilation of any investigation, a full hearing shall be held in accordance with the procedure set forth in 103 CMR 420.08(3)(a) through (l). At the discretion of the Superintendent, the hearing can he held either at the Treatment Center or at the site of the resident's confinement.

103 CMR: DEPARTMENT OF CORRECTION

460.09 Subsequent Transfer Board Hearings

460.09: Subsequent Transfer Board Hearings (1) Subsequent transfer board hearings serve to determine whether to recommend that transferred Treatment Center residents should be returned to the Treatment Center. Subsequent boards willassess the transferred Treatment Center resident's appropriateness for return to the Treatment Center, based upon: (a) the resident's compliance with such criteria and conditions established by the initial transfer board pursuant to 103 CMR 460.08(3)(i)3., and (b) the resident's behavioral and programmatic record at the correctional institution(s) where the resident has been housed. (2) The Treatment Center Superintendent, Treatment Center Clinical Director of Treatment, the CAB, or a classification board may refer any transferred Treatment Center resident to the transfer board to determine whether the transferred resident should be recommended to be returned to the Treatment Center. Such a review shall be conducted in accordance with 103 CMR 460.08(3)(a) through (l). (3) Once every six months any transferred Treatment Center resident may submit a written request for review by the transfer board. The resident shall present the request in writing to the Treatment Center S up e rinte ndent who shall refer the transferred resident's request to the transfer board Chairperson. The resident shall bear the burden of submitting sufficient information to show that he has complied with the criteria and conditions established by the transfer board pursuant to 103 CMR 460.08(3)(i)3. Upon determination by the transfer board that the resident has met his burden of submission, the transfer board process shall proceed in accordance with 103 CMR 460.08(3)(a) through (l). The Chairperson may convene the transfer board either at the Treatment Center or at the correctional institution where the resident resides.

460.10 Tracking of Transferred Treatment Center Residents

460.10: Tracking of Transferred Treatment Center Residents In order to facilitate the centralized control, monitoring and evaluation of transferred Treatment Center residents, the Department shall develop, institute, and maintain a record keeping system at the Treatment Center that will record each correctional institution at which a transferred Treatment Center resident resides. These records will be kept for the following purposes: (1) The Treatment Center Superintendent or a designee shall endeavor to obtain from each correctional institution to which a transferred Treatment Center resident is transferred copies of any records or documents relevant to such a resident's sexual dangerousness, treatment, rehabilitation, disciplinary actions, and security concerns. The Treatment Center Superintendent or a designee shall endeavor to include such records in a transferred resident's treatment and administrative files maintained at the Treatment Center. (2) The Treatment Center's Clinical Director of Treatment or a designee shall conduct annual reviews of all transferred Treatment Center residents. Suc h re vie ws may include but are not limited to interviews of the resident, review of the residents’ records from other correctional institutions, and interviews with the staff of other correctional institutions. Any reports of such periodic reviews shall be included in the transferred residents’ Treatment Center files and records. (3) Pursuant to M.G.L. c. 123A, §§ 2A & 6A, the Community Access Board ("CAB") shall continue to conduct annualreviews of and prepare reports on the current sexual dangerousness of all transferred residents. The CAB may also conduct a review in order to update an annual review in preparation for a transferred resident's M.G.L. c. 123A, § 9 hearing. Reviews may include but are not limited to personal interviews of the resident, interviews with the staff of other correctional institutions, and to all of the resident's records at the Treatment Center and any other correctional institution.

460.11 Return of Transferred Residents to the Treatment Center

460.11: Return of Transferred Residents to the Treatment Center A transferred resident shall only be returned to the Treatment Center if:

103 CMR: DEPARTMENT OF CORRECTION

460.11 continued

460.11: continued (1) Following the transfer process in 103 CMR 460.09, the Commissioner or a designee approves of a transferred Treatment Center resident's return to the Treatment Center; or (2) A resident's criminal sentence expires and he has not been discharged from his M.G.L. c. 123A commitment.

460.12 Time Limits

460.12: Time Limits All procedural time limits set forth in 103 CMR 460.00 are directory and may be waived by the Superintendent or the Commissioner or their designees.

460.13 Status of Transferred Residents

460.13: Status of Transferred Residents Any resident transferred pursuant to 103 CMR 460.00 from the Treatment Center to another correctional institution of the Department of Correction shall be deemed a state prisoner fully subject to all Department rules, regulations and policies governing prisoners at the receiving correctional institution, including, but not limited to, 103 CMR 420.00 and 103 CMR 430.00. Except as provided in 103 CMR 460.00, rules, regulations and policies adopted solely for operation within the Treatment Center shall not apply to transferred residents.

460.14 Emergency

460.14: Emergency Whenever in the opinion of the Commissioner or a designee or the Superintendent of any state correctional institution, an emergency exists which requires suspension of all or part of 103 CMR 460.00, the Commissioner or a designee or the Superintendent of any state correctional institution may authorize such suspension provided that any suspension lasting more than 48 hours must be approved by the Commissioner.

460.15 Responsible Staff

460.15: Responsible Staff The Assistant Deputy Commissioner responsible for the Treatment Center shall be responsible for monitoring 103 CMR 460.00 throughout the Department. The Superintendent of each correctional institution shall be responsible for the implementation of this policy within the institution and for the development of any and all necessary and appropriate policies and procedures within the parameter of 103 CMR 460.00.

460.16 Annual Review

460.16: Annual Review 103 CMR 460.00 shall be reviewed annually by the Assistant Deputy Commissioner responsible for the Treatment Center. The party or parties conducting the review shall submit a memorandum to the Commissioner with a copy to the Central Policy File, indicating that review has been completed. Recommendations for revisions, additions, or deletions shall be included.

460.17 Severability

460.17: Severability If any article, section, subsection, clause, or phrase of 103 CMR 460.00 is for any reason held to be unconstitutional, contrary to statute, in excess of the authority of the Commissioner, or otherwise inoperative, suchdecisions shallnot affect the validity of any other article, section, subsection, sentence, clause, phrase of 103 CMR 460.00. REGULATO RY AUTHO RITY 103 CMR 460.00: M.G.L. c. 123A, §§ 2 and 2A; c. 124, § 1(c), (f) and (q) and c. 127, §§ 20, 49A, 97 and 97A.

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