Montana Administrative Register Notice 20-9-44 No. 7   04/14/2011    
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                                           BEFORE THE DEPARTMENT OF CORRECTIONS

                                                              OF THE STATE OF MONTANA


In the matter of the adoption of NEW RULE I pertaining to the Prison Rape Elimination Act and the amendment of ARM 20.9.602, 20.9.607, 20.9.609, 20.9.612, 20.9.613, 20.9.616, 20.9.617, 20.9.618, 20.9.619, 20.9.620, 20.9.621, 20.9.623, 20.9.624, and 20.9.630 pertaining to licensure of youth detention facilities












TO:  All Concerned Persons


1.  On February 24, 2011 the Department of Corrections published MAR Notice No. 20-9-44 pertaining to the public hearing on the proposed adoption and amendment of the above-stated rules at page 183 of the 2011 Montana Administrative Register, Issue Number 4.


            2.  On March 22, 2011, a public hearing was held on the proposed new rule and amendment of the above-stated rules in Helena.  Several comments were received at the public hearing.  No other comments were received by the March 24, 2011, deadline.


3.  The department has thoroughly considered the testimony received.  A summary of the testimony received and the department's responses are as follows:




COMMENT 1:  One commenter stated that New Rule I(2) would require the facility to report youth with sexually aggressive behavior to law enforcement for prosecution, and, therefore, requested the department delete that section of New Rule I(2).


RESPONSE 1:  New Rule I(2) only requires the facility to screen youth for tendencies to act out with sexually aggressive behavior so the facility can properly place the youth away from vulnerable youth.  The rule does not require the facility to report such youth to law enforcement.  Further, New Rule I(2) is a requirement of the American Correctional Association standards for juvenile detention facilities.  The department will adopt New Rule I(2) as proposed.


COMMENT 2:  One commenter opposed New Rule I(4).  The commenter opposed the requirement for assessment by a mental health or other qualified professional as being too expensive for a small facility.  The commenter also opposed the counseling requirement as being too expensive.


RESPONSE 2:  New Rule I(4) is a requirement of the American Correctional Association standards for juvenile detention facilities.  The department will adopt New Rule I(4) as proposed.


            4.  The department has adopted NEW RULE I (20.9.635) as proposed.




COMMENT 3:  One commenter maintained that 20.9.612(3) required the facility to have an employee on site for each gender youth regardless of whether a youth of that gender was in the facility.


RESPONSE 3:  The comment is well taken and 20.9.612(3) will remain the same.


            5.  The department has amended the following rules as proposed with the following changes from the original proposal.  Matter to be added is underlined.  Matter to be deleted is interlined.


            20.9.612  MANAGEMENT, STAFF, AND TRAINING  (1) and (2) remain as proposed.

            (3)  The facility shall employ, train, and supervise an adequate number of staff, including immediately available same gender on-site 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) through (7) remain as proposed.


20.9.620  RIGHTS OF YOUTH  (1) and (2) remain as proposed.

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

(a) through (5) remain as proposed.


            6.  Additionally, the department amends the following rule, new matter underlined, deleted matter interlined.


20.9.618  SEARCHES  (1) remains the same.

(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, his 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) through (7) remain the same.


            AUTH:  41-5-1802, MCA

            IMP:  41-5-1802, MCA


            STATEMENT OF REASONABLE NECESSITY:  The Department of Corrections amends ARM 20.9.618 to make the rule gender neutral.


            7.  The department has amended ARM 20.9.602, 20.9.607, 20.9.609, 20.9.613, 20.9.616, 20.9.617, 20.9.619, 20.9.621, 20.9.623, 20.9.624, and 20.9.630 as proposed.


/s/  Diana L. Koch                 /s/  Mike Ferriter                               

Diana L. Koch                       Mike Ferriter

Rule Reviewer                       Director

                                                Department of Corrections


Certified to the Secretary of State April 4, 2011






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