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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.

(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

(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.

(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.

(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.

(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.

(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.

(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.

(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.

(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.

(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.

(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.

(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.

(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.

(1) The facility must have a written document describing its organization. This description must include an organizational chart.

(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.

(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.

(1) The facility must control inmate personal funds held by the facility in accordance with accepted accounting procedures.

(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.

(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.

(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.

(1) The facility must maintain on the premises a current, accurate, and confidential personnel record on each employee.

(1) The facility must provide staff training and development in accordance with state law.

(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.

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

(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.

(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.

(1) The facility must provide sufficient space for inmates to receive visits from approved visitors.

(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

(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.

(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.

(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.

(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.

(1) The facility must have written policy, procedure and practice controlling the use of keys, tools, culinary and medical equipment.

(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.

(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.

(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.

(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.

(1) The facility must have written policy and procedure, approved by the department, for the objective classification of inmates remanded to its custody.

(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.

(1) The facility must have written policy and procedure that govern the admission of inmates to the system approved by the department.

(1) The facility must have written policy and procedure governing the control of inmate personal property and funds.

(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.

(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.

(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.

(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.