80 FR 43367 - Drug Abuse Treatment Program

DEPARTMENT OF JUSTICE
Bureau of Prisons

Federal Register Volume 80, Issue 140 (July 22, 2015)

In this document, the Bureau of Prisons (Bureau) proposes revisions to the Residential Drug Abuse Treatment Program (RDAP) regulations to allow greater inmate participation in the program and positively impact recidivism rates.

[Federal Register Volume 80, Number 140 (Wednesday, July 22, 2015)]
[Proposed Rules]
[Pages 43367-43370]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-17707]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 550

[BOP-1168-P]
RIN 1120-AB68


Drug Abuse Treatment Program

AGENCY: Bureau of Prisons, Justice.

ACTION: Proposed rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) proposes 
revisions to the Residential Drug Abuse Treatment Program (RDAP) 
regulations to allow greater inmate participation in the program and 
positively impact recidivism rates.

DATES: Comments are due by September 21, 2015.

ADDRESSES: The public is encouraged to submit comments on this proposed 
rule using the www.regulations.gov comment form. Written comments may 
also be submitted to the Rules Unit, Office of General Counsel, Bureau 
of Prisons, 320 First Street NW., Washington, DC 20534. You may view an 
electronic version of this regulation at www.regulations.gov. When 
submitting comments electronically you must include the BOP Docket 
Number in the subject box.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General 
Counsel, Bureau of Prisons, phone (202) 307-2105.

SUPPLEMENTARY INFORMATION: 

Posting of Public Comments

    Please note that all comments received are considered part of the 
public record and made available for public inspection online at 
www.regulations.gov. Such information includes personal identifying 
information (such as your name, address, etc.) voluntarily submitted by 
the commenter.
    If you want to submit personal identifying information (such as 
your name, address, etc.) as part of your comment, but do not want it 
to be posted online, you must include the phrase ``PERSONAL IDENTIFYING 
INFORMATION'' in the first paragraph of your comment. You must also 
locate all the personal identifying information you do not want posted 
online in the first paragraph of your comment and identify what 
information you want redacted.
    If you want to submit confidential business information as part of 
your comment but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You must also prominently identify confidential 
business information to be redacted within the comment. If a comment 
has so much confidential business information that it cannot be 
effectively redacted, all or part of that comment may not be posted on 
www.regulations.gov.
    Personal identifying information identified and located as set 
forth above will be placed in the agency's public docket file, but not 
posted online. Confidential business information identified and located 
as set forth above will not be placed in the public docket file. If you 
wish to inspect the agency's public docket file in person by 
appointment, please see the For Further Information Contact paragraph.

Discussion

    In this document, the Bureau proposes revisions to the Residential 
Drug Abuse Treatment Program (RDAP) regulations in four areas to allow 
greater inmate participation in the program and positively impact 
recidivism rates. Specifically, the Bureau proposes to (1) remove the 
regulatory requirement for RDAP written testing because it is more 
appropriate to assess an inmate's progress through clinical evaluation 
of behavior change (the written test is no longer used in practice); 
(2) remove existing regulatory provisions which automatically expel 
inmates who have committed certain acts (e.g., abuse of drugs or 
alcohol, violence, attempted escape); (3) limit the time frame for 
review of prior offenses for early release eligibility purposes to ten 
years before the date of federal imprisonment; and (4) lessen 
restrictions relating to early release eligibility.
    Community Treatment Services. Currently, the Bureau's regulations 
contain the term ``Transitional drug abuse treatment (TDAT)'' in 28 CFR 
550.53(a)(3) and in the title and paragraphs (a) and (b) of Sec.  
550.56. We propose to replace this phrase because the name of this 
program has been changed to ``Community Treatment Services (CTS).'' 
This is a minor change to more accurately reflect the nature of the 
treatment program.
    Sec.  550.50 Purpose and scope. We propose changes to this 
regulation to more accurately describe the purpose of the subpart and 
to reflect the source of drug treatment services within the Bureau of 
Prisons. The current regulation states that Bureau facilities have drug 
abuse treatment specialists who are supervised by a Coordinator and 
that facilities with residential drug abuse treatment programs (RDAP) 
should have additional specialists for treatment in the RDAP unit. This 
is inaccurate. We propose to change the regulation to explain that the 
Bureau's drug abuse treatment programs, which include drug abuse 
education, RDAP and non-residential drug abuse treatment services, are 
provided by the Psychology Services Department.
    We likewise propose to make a minor corresponding change in Sec.  
550.53(a)(1), which also refers inaccurately to the Drug Abuse Program 
Coordinator, when instead the course of activities referenced in that 
regulation is provided by the Psychology Services Department.
    Sec.  550.53 Residential Drug Abuse Treatment Program (RDAP)(f)(2). 
The Bureau proposes to remove subparagraph (f)(2) of Sec.  550.53, 
which requires inmates to pass RDAP testing procedures and refers to an 
RDAP exam. The RDAP program no longer includes written testing as a 
requirement for completion of the program. Instead, RDAP uses clinical 
observation and clinical evaluation of inmate behavior change to assess 
readiness for completion. Therefore, the current language is inaccurate 
and imposes a requirement upon inmates that no longer exists.
    In 2010, the Bureau converted the Residential Drug Abuse Treatment 
Programs to the Modified Therapeutic Community Model of treatment 
(MTC). This evidenced-based model is designed to assess progress 
through treatment as determined by the participants' completion of 
treatment goals and activities on their individualized treatment plan, 
and demonstrated behavior change. Each participant jointly works with 
their treatment specialist to create the content of their treatment 
plan. Every three months, or more often if necessary, each participant 
meets with their clinical team (four or more treatment staff) to review 
their progress in treatment. Progress in treatment is determined 
through assessing the accomplishment of their treatment goals and 
activities, along with demonstrated behavior change, such as improved 
personal and social conduct, no disciplinary incidents, etc. 
Unsatisfactory progress is evident when the participant does not 
accomplish

[[Page 43368]]

their treatment goals and does not demonstrate mastery of skill 
development.
    There are several studies about the effectiveness of the MTC model 
of treatment. The most seminal study pertaining to this topic is titled 
``Outcome Evaluation of A Prison Therapeutic Community for Substance 
Abuse Treatment.'' \1\
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    \1\ Wexler, H., Falkin, G., Lipton, D., (1990). Outcome 
Evaluation of A Prison Therapeutic Community for Substance Abuse 
Treatment. Criminal Justice and Behavior, vol.17 No.1, March 1990 
71-92, 1990 American Association for Correctional Psychology.
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    This behavioral form of assessing progress is a much more powerful 
form of assessment than assessing the results of a written test. The 
written test assesses knowledge, but knowledge does not necessarily 
demonstrate whether the program has positively affected an individual's 
behavior or addictive lifestyle.
    All of the treatment specialists in the Bureau have a doctorate 
degree in psychology. They are well qualified to use their knowledge of 
treatment and the behavior of individuals suffering from substance 
abuse to objectively determine if a participant is ready to complete 
the program. There are three decades of evaluation research that 
support the efficacy of the therapeutic community model of treatment. 
The most comprehensive source of program description, theory, and 
summary of research associated with this model of treatment is found in 
the book entitled The Therapeutic Community: Theory, Model, and Method. 
New York: Springer Publishing Company, Inc. (De Leon, G. (2000).
    Sec.  550.53(g) Expulsion from RDAP. We propose to remove Sec.  
550.53(g)(3), which requires Discipline Hearing Officers (DHOs) to 
remove an inmate automatically from RDAP if there is a finding that the 
inmate has committed a prohibited act involving alcohol, drugs, 
violence, escape, or any 100-level series incident.
    Removing the language would give the Bureau more latitude and 
clinical discretion when determining which inmates should be expelled 
from the program. If the language is deleted, inmates will then only be 
expelled from RDAP according to criteria in Sec.  550.53(g)(1) which 
allows inmates to be removed from the program by the Drug Abuse Program 
Coordinator because of disruptive behavior related to the program or 
unsatisfactory progress in treatment, and requires at least one formal 
warning before removal, unless there is documented lack of compliance 
and the inmate's continued presence would present an immediate problem 
for staff and other inmates.
    Removing paragraph (g)(3) removes the automatic expulsion of 
inmates committing the listed prohibited acts and allows for greater 
possibility of continuance of the program for inmates with discipline 
problems.
    Sec.  550.55(b) Inmates not eligible for early release. We propose 
to make two changes to Sec.  550.55(b). The first is to modify the 
current language of (b)(4), which precludes inmates from consideration 
for early release if they have a prior felony or misdemeanor conviction 
for homicide, forcible rape, robbery, aggravated assault, arson, 
kidnaping, or an offense that involves sexual abuse of minors. The 
Bureau proposes to modify the language of (b)(4) to clarify that we 
intend to limit consideration of ``prior felony or misdemeanor'' 
convictions to those which were imposed within the ten years prior to 
the date of sentencing for the inmate's current commitment. By making 
this change, the Bureau clarifies that it will not preclude from early 
release eligibility those inmates whose prior felony or misdemeanor 
convictions were imposed longer than ten years before the date of 
sentencing for the inmate's current commitment.
    Title 18 U.S.C. 3621(e) provides the Director of the Bureau of 
Prisons the discretion to grant an early release of up to one year upon 
the successful completion of a residential drug abuse treatment 
program. In exercising the Director's statutory discretion, we 
considered the crimes of homicide, rape, robbery, aggravated assault, 
arson, and kidnaping. In the FBI's Uniform Crime Reporting (UCR) 
Program, violent crime is composed of four offenses: Murder and 
nonnegligent manslaughter, rape, robbery, and aggravated assault. 
Violent crimes are defined in the UCR Program as those offenses which 
involve force or threat of force. The Director exercised his 
discretion, therefore, to include these categories of violent crimes 
and also expanded the list to include arson and kidnaping, as they also 
are crimes of an inherently violent nature and particular dangerousness 
to the public.
    The Director exercises discretion to deny early release eligibility 
to inmates who have a prior felony or misdemeanor conviction for theses 
offenses because commission of such offenses rationally reflects the 
view that such inmates displayed readiness to endanger the public. The 
UCR explained that ``because of the variances in punishment for the 
same offenses in different state codes, no distinction between felony 
and misdemeanor crimes was possible.''
    The application of national standards to the numerous local, state, 
tribal, and federal prior convictions promotes uniformity, but creates 
unique issues since each separate entity will have its own criminal 
statutory schemes in which offenses may be categorized as either 
misdemeanors or felonies. Limiting the Bureau to an analysis of how an 
offense is categorized in local, state, tribal, or federal criminal 
codes, rather than to an analysis of the nature of the prior offense, 
would effectively prevent the Director from exercising the discretion 
authorized by 18 U.S.C. 3621(e). Furthermore, eliminating the analysis 
of prior violent misdemeanor convictions would allow inmates to receive 
the benefit of early release merely because of the manner in which the 
prior convictions were categorized.
    Additionally, 28 CFR 550.55(b)(6) provides that inmates who have 
been convicted of an attempt, conspiracy, or other offense which 
involved certain underlying offenses are also precluded from early 
release eligibility. Many state statutes provide that ``attempt'' 
convictions are to be categorized as one degree lower than the 
underlying offense (e.g., Alaska Statutes sec. 11.31.100(d), N.C. Gen 
Stat. sec. 14-2.5, Tex. Penal Code sec. 15.01(d), and Wash. Rev. Code 
sec. 9A.28.020(3)). Therefore, eliminating the analysis of prior 
misdemeanor convictions may result in offenders convicted of attempting 
to commit a precluding offense being found eligible for early release, 
despite the provisions of 28 CFR 550.55(b)(6).
    Further, based on a random sampling of inmates who participated in 
RDAP but were precluded from RDAP early release eligibility, the Bureau 
estimates that of the 856 inmates precluded in the year 2014 based only 
on convictions for prior offense, at least half that number would have 
been eligible for early release if the Bureau had not considered prior 
offenses greater than 10 years old. The Fiscal Year 2015 estimated 
annual marginal rate to incarcerate an inmate in the Bureau of Prisons 
is $11,324 per inmate. Based on an estimate of 400 inmates released up 
to a year early if this proposed rule change is made, that could equate 
to a cost avoidance of over $4.5 million per year.
    We also propose to narrow the language in Sec.  550.55(b)(6) 
relating to early release eligibility. In Sec.  550.55(b), the Director 
exercises his discretion to disallow particular categories of inmates 
from eligibility for early release, including, in (b)(6), those who 
were convicted of an attempt, conspiracy, or

[[Page 43369]]

other offense which involved an underlying offense listed in paragraph 
(b)(4) and/or (b)(5) of Sec.  550.55.
    We propose to narrow the language of Sec.  550.55(b)(6) to preclude 
only those inmates whose prior conviction involved direct knowledge of 
the underlying criminal activity and who either participated in or 
directed the underlying criminal activity. The proposed change would 
more precisely tailor the regulation to the congressional intent to 
exclude from early release consideration only those inmates who have 
been convicted of a violent offense. Furthermore, the changed language 
would potentially expand early release benefits to more inmates.
    Beginning in 1991, in coordination with the National Institute on 
Drug Abuse, the Bureau conducted a 3-year outcome study of the RDAP. 
Federal Bureau of Prisons (2000). TRIAD Drug Treatment Evaluation 
Project Final Report of Three-Year Outcomes: Part I. (``TRIAD Study''). 
The study evaluated the effect of treatment on both male and female 
inmates (1,842 men and 473 women). This study demonstrates that the 
Bureau's RDAP makes a positive difference in the lives of inmates and 
improves public safety.
    The TRIAD study showed that the RDAP program is effective in 
reducing recidivism. Male participants were 16 percent less likely to 
recidivate and 15 percent less likely to relapse than similarly 
situated inmates who do not participate in residential drug abuse 
treatment for up to 3 years after release. The analysis also found that 
female inmates who participate in RDAP are 18 percent less likely to 
recidivate than similarly situated female inmates who do not 
participate in treatment.
    The TRIAD study defined criminal recidivism was defined two ways: 
(1) An arrest for a new offense or (2) an arrest for a new offense or 
supervision revocation. Revocation was defined as occurring only when 
the revocation was solely the result of a technical violation of one or 
more conditions of supervision (e.g., detected drug use, failure to 
report to probation officer). Drug use as a post-release outcome, for 
the purposes of the study, referred to the first occurrence of drug or 
alcohol use as reported by U.S. Probation officers (i.e., a positive 
urinalysis (u/a), refusal to submit to a urinalysis, admission of drug 
use to the probation officer, or a positive breathalyser test).
    Offenders who completed the residential drug abuse treatment 
program and had been released to the community for three years were 
less likely to be re-arrested or to be detected for drug use than were 
similar inmates who did not participate in the drug abuse treatment 
program. Specifically, 44.3 percent of male inmates who completed the 
program were likely to be re-arrested or revoked within three years 
after release to supervision in the community, compared to 52.5 percent 
of those inmates who did not receive such treatment. For women, 24.5 
percent of those who completed the residential drug abuse treatment 
program were arrested or revoked within three years after release, 
compared to 29.7 percent of the untreated women.
    With respect to drug use, 49.4 percent of men who completed 
treatment were likely to use drugs within 3 years following release, 
compared to 58.5 percent of those who did not receive treatment. Among 
female inmates who completed treatment, 35.2 percent were likely to use 
drugs within the three-year postrelease period in the community, 
compared to 42.6 percent of those who did not receive such treatment.


Sec.  550.56   Community Transitional Drug Abuse Treatment Program 
(TDAT).

    In addition to changing ``Transitional Drug Abuse Treatment Program 
(TDAT)'' to ``Community Treatment Services (CTS)'' throughout this 
regulation as indicated earlier, we also propose to delete paragraph 
(c) which appears to require that inmates successfully completing RDAP 
and participating in transitional treatment programming must 
participate in such programming for one hour per month. The provision 
in the regulation is an error. It does not relate to Community 
Treatment Services (CTS), but instead relates to RDAP. It is therefore 
unnecessary to retain this language. The substance of this language 
will be retained as implementing text in the relevant policy statement 
as part of RDAP procedures.

Executive Orders 12866 and 13563

    This proposed regulation has been drafted and reviewed in 
accordance with Executive Order 12866, ``Regulatory Planning and 
Review,'' section 1(b), Principles of Regulation, and Executive Order 
13563, ``Improving Regulation and Regulatory Review.'' These executive 
orders direct agencies to assess all costs and benefits of available 
regulatory alternatives and, if regulation is necessary, to select 
regulatory approaches that maximize net benefits (including potential 
economic, environmental, public health and safety effects, distributive 
impacts, and equity). Executive Order 13563 emphasizes the importance 
of quantifying both costs and benefits, of reducing costs, of 
harmonizing rules, and of promoting flexibility.
    The Director, Bureau of Prisons has determined that this proposed 
rule is a ``significant regulatory action'' under Executive Order 
12866, section 3(f), and accordingly this proposed rule has been 
reviewed by the Office of Management and Budget.
    As context regarding the current impact of the RDAP (i.e., without 
the changes proposed in this rule), in FY 2014, 18,102 inmates 
participated in the residential drug abuse treatment program. Title 18 
U.S.C. 3621(e)(2) allows the Bureau to grant a non-violent offender up 
to one year off his/her term of imprisonment for successful completion 
of the RDAP. In fiscal year 2014, 5,229 inmates received a reduction in 
their term of imprisonment resulting in a cost avoidance of nearly $50 
million based on this law (average reduction was 10.4 months and the 
marginal cost avoidance was $10,994 annually). The changes made by this 
proposed rule would increase the number of current inmates who benefit 
from the RDAP program and would increase the number of inmates who may 
be eligible for early release, thereby resulting in cost avoidance to 
the Bureau in the future.
    For instance, the change we propose to make to Sec.  550.55(b)(6), 
regarding changing ``other offense'' to ``solicitation to commit,'' 
based on prior year data (Jan 2014 through Dec 2014), we estimate that 
approximately 45 inmates would be made eligible for early release as a 
result of the suggested change.
    We will not require more resources in order to put more individuals 
through RDAP. RDAP is a nine-month program. The program has a treatment 
capacity large enough to accommodate about 8,400 participants at any 
given time. Therefore, during a year, program capacity is filled twice, 
which means that at least 16,800 participants can be accommodated every 
year. It is not uncommon for more than 16,800 to participate. For 
example, in FY 2014, approximately 18,000 inmates participated. This 
number also reflects inmates who may drop out of the program and are 
replaced with other inmates on the wait list.

Executive Order 13132

    This proposed regulation would not have substantial direct effects 
on the States, on the relationship between the national government and 
the States, or on distribution of power and responsibilities among the 
various levels of government. Under Executive Order 13132, this 
rulemaking does not have sufficient federalism implications

[[Page 43370]]

for which we would prepare a Federalism Assessment.

Regulatory Flexibility Act

    The Director of the Bureau of Prisons, under the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation. By 
approving it, the Director certifies that it will not have a 
significant economic impact upon a substantial number of small entities 
because: This proposed rule is about the correctional management of 
offenders committed to the custody of the Attorney General or the 
Director of the Bureau of Prisons, and its economic impact is limited 
to the Bureau's appropriated funds.

Unfunded Mandates Reform Act of 1995

    This proposed rule will not cause State, local and tribal 
governments, or the private sector, to spend $100,000,000 or more in 
any one year, and it will not significantly or uniquely affect small 
governments. We do not need to take action under the Unfunded Mandates 
Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This proposed rule is not a major rule as defined by section 804 of 
the Small Business Regulatory Enforcement Fairness Act of 1996. This 
proposed rule would not result in an annual effect on the economy of 
$100,000,000 or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

List of Subjects in 28 CFR Part 550

    Prisoners.

Charles E. Samuels, Jr.,
Director, Bureau of Prisons.

    Under the rulemaking authority vested in the Attorney General in 5 
U.S.C. 301; 28 U.S.C. 509, 510 and delegated to the Director, Bureau of 
Prisons in 28 CFR 0.96, we propose to amend 28 CFR part 550 as follows:

PART 550--DRUG PROGRAMS

0
1. The authority citation for part 550 continues to read as follows:

    Authority:  5 U.S.C. 301; 18 U.S.C. 3521-3528, 3621, 3622, 3624, 
4001, 4042, 4046, 4081, 4082 (Repealed in part as to offenses 
committed on or after November 1, 1987), 5006-5024 (Repealed October 
12, 1984 as to offenses committed after that date), 5039; 21 U.S.C. 
848; 28 U.S.C. 509, 510; Title V, Pub. L. 91-452, 84 Stat. 933 (18 
U.S.C. Chapter 223).
0
2. Revise Sec.  550.50 to read as follows:


Sec.  550.50  Purpose and scope.

    The purpose of this subpart is to describe the Bureau's drug abuse 
treatment programs for the inmate population, to include drug abuse 
education, non-residential drug abuse treatment services, and 
residential drug abuse treatment programs (RDAP). These services are 
provided by Psychology Services department.
0
3. Amend Sec.  550.53 by revising paragraphs (a)(1), (a)(3), (f), and 
(g) to read as follows:


Sec.  550.53  Residential Drug Abuse Treatment Program (RDAP).

    (a) * * *
    (1) Unit-based component. Inmates must complete a course of 
activities provided by the Psychology Services Department in a 
treatment unit set apart from the general prison population. This 
component must last at least six months.
* * * * *
    (3) Community Treatment Services (CTS). Inmates who have completed 
the unit-based program and (when appropriate) the follow-up treatment 
and transferred to a community-based program must complete CTS to have 
successfully completed RDAP and receive incentives. The Warden, on the 
basis of his or her discretion, may find an inmate ineligible for 
participation in a community-based program; therefore, the inmate 
cannot complete RDAP.
* * * * *
    (f) Completing the unit-based component of RDAP. To complete the 
unit-based component of RDAP, inmates must have satisfactory attendance 
and participation in all RDAP activities.
    (g) Expulsion from RDAP. (1) Inmates may be removed from the 
program by the Drug Abuse Program Coordinator because of disruptive 
behavior related to the program or unsatisfactory progress in 
treatment.
    (2) Ordinarily, inmates must be given at least one formal warning 
before removal from RDAP. A formal warning is not necessary when the 
documented lack of compliance with program standards is of such 
magnitude that an inmate's continued presence would create an immediate 
and ongoing problem for staff and other inmates.
    (3) We may return an inmate who withdraws or is removed from RDAP 
to his/her prior institution (if we had transferred the inmate 
specifically to participate in RDAP).
* * * * *
0
4. Revise Sec.  550.55(b)(4) and (6) to read as follows:


Sec.  550.55  Eligibility for early release.

* * * * *
    (b) * * *
    (4) Inmates who have a prior felony or misdemeanor conviction 
within the ten years prior to the date of sentencing for their current 
commitment for:
    (i) Homicide (including deaths caused by recklessness, but not 
including deaths caused by negligence or justifiable homicide);
    (ii) Forcible rape;
    (iii) Robbery;
    (iv) Aggravated assault;
    (v) Arson;
    (vi) Kidnaping; or
    (vii) An offense that by its nature or conduct involves sexual 
abuse offenses committed upon minors;
* * * * *
    (6) Inmates who have been convicted of an attempt, conspiracy, or 
solicitation to commit an underlying offense listed in paragraph (b)(4) 
and/or (b)(5) of this section; or
* * * * *
0
5. Revise Sec.  550.56 to read as follows:


Sec.  550.56  Community Treatment Services (CTS).

    (a) For inmates to successfully complete all components of RDAP, 
they must participate in CTS. If inmates refuse or fail to complete 
CTS, they fail RDAP and are disqualified for any additional incentives.
    (b) Inmates with a documented drug use problem who did not choose 
to participate in RDAP may be required to participate in CTS as a 
condition of participation in a community-based program, with the 
approval of the Supervisory Community Treatment Services Coordinator.
[FR Doc. 2015-17707 Filed 7-21-15; 8:45 am]
 BILLING CODE 4410-05-P