Attachment_A.pdf

Department of Corrections and Rehabilitation

NOTICE OF CHANGE TO REGULATIONS

Sections: 3000, 3004, 3031, 3040, 3041, 3041.1, 3044.1, 3120, 3192, 3220, 3269, 3269.5, 3303, 3312.1, 3318, 3335.5, 3344, 3369.5, 3369.6, 3369.7, 3369.8, 3369.9, 3369.10, 3369.11, 3369.12, 3369.13, 3370, 3376.2

NCR

Number:

24-03

Publication Date:

April 26, 2024

Effective Date:

To Be

Determined

INSTITUTION POSTING AND CERTIFICATION REQUIRED

This Notice announces the proposed amendment of Sections 3000, 3004, 3031, 3040, 3041, 3041.1, 3044.1, 3120, 3192, 3220, 3269, 3303, 3318, 3344, 3341.3, and 3370; and the adoption of Sections 3269.5, 3312.1, 3335.5, 3369.5, 3369.6, 3369.7, 3369.8, 3369.9, 3369.10, 3369.11, 3369.12, 3369.13, and 3376.2 in the California Code of Regulations (CCR), Title 15, Crime Prevention and Corrections, Division 3, regarding the Developmental Disability Program.

PUBLIC COMMENT PERIOD

The public comment period will close on June 12, 2024. Any person may submit written comments about the proposed regulations by mail to the California Department of Corrections and Rehabilitation (CDCR), Regulation and Policy Management Branch (RPMB), P.O. Box 942883, Sacramento, CA 94283-0001, or by e-mail to RPMB@cdcr.ca.gov. All written comments must be received or postmarked no later than June 12, 2024.

PUBLIC HEARING INFORMATION

A public hearing regarding these proposed regulations will be held on June 12, 2024, from 10:00 a.m.

to 11:00 a.m. in Conference Room 150, located at 1515 S Street, Sacramento, CA 95811. The purpose of the hearing is to receive comments about these proposed regulations. It is not a forum to debate the proposed regulations. No decision regarding the permanent adoption of these regulations will be rendered at this hearing. Written comments submitted during the prescribed comment period are given the same significance and weight as oral comments presented at the hearing. This hearing site is accessible to the mobility impaired.

POSTING

This Notice shall be posted immediately upon receipt at locations accessible to inmates, parolees, and employees in each department facility and field office not later than five calendar days after receipt. Also, institutions and facilities shall make this Notice available for review by inmates in segregated housing who do not have access to the posted copies and shall distribute it to inmate law libraries and advisory councils.

CDCR Form 621-A (Rev. 05/19), Certification of Posting, shall be returned to RPMB by mail or email. See Department Operations Manual Section 12010.6.7 for posting and certification of posting procedures.

CONTACT PERSON

Inquiries regarding this Notice should be directed to S. Pollock, by mail to California Department of Corrections and Rehabilitation, RPMB, P.O. Box 942883, Sacramento, CA 94283-0001, by telephone at

(916) 445-2308, or e-mail to RPMB@cdcr.ca.gov. Inquiries regarding the subject matter of these regulations should be directed to Tim Fleshman, Division of Adult Institutions, at (916) 322-2315.

Original signed by:

TAMMY FOSS

Undersecretary, Operations California Department of Corrections and Rehabilitation

Attachments mailto:RPMB@cdcr.ca.gov mailto:RPMB@cdcr.ca.gov

Notice – NCR #24-03 1 April 26, 2024

NOTICE OF PROPOSED REGULATIONS

California Code of Regulations

Title 15, Crime Prevention and Corrections Department of Corrections and Rehabilitation

NOTICE IS HEREBY GIVEN that the Secretary of the California Department of Corrections and Rehabilitation (CDCR or department), proposes to amend Sections 3000, 3004, 3031, 3040, 3041, 3041.1, 3044.1, 3120, 3192, 3220, 3269, 3303, 3318, 3344, 3341.3, and 3370; and adopt new Sections 3269.5, 3312.1, 3335.5, 3369.5, 3369.6, 3369.7, 3369.8, 3369.9, 3369.10, 3369.11, 3369.12, 3369.13, and 3376.2 in Title 15, Division 3, regarding the Developmental Disability Program.

PUBLIC COMMENT PERIOD

The public comment period begins on April 26, 2024, and closes on June 12, 2024. Any person may submit written comments by mail addressed to the primary contact person listed below, or by email to rpmb@cdcr.ca.gov, before the close of the comment period. For questions regarding the subject matter of the regulations, call the program contact person listed below.

CONTACT PERSONS

Primary Contact S. Pollock Telephone: 916 445-2308 Regulation and Policy Management Branch P.O. Box 942883 Sacramento, CA 94283-0001

Back-Up Y. Sun Telephone: (916) 445-2269 Regulation and Policy Management Branch P.O. Box 942883 Sacramento, CA 94283-0001

Program Contact Tim Fleshman Telephone: (916) 322-2315 Division of Adult Institutions P.O. Box 942883 Sacramento, CA 94283-0001

PUBLIC HEARING

Date and Time: June 12, 2024 – 10:00 a.m. to 11:00 a.m.

Place: Department of Corrections and Rehabilitation

Conference Room 150 1515 S Street – North Building Sacramento, CA 95811

AUTHORITY AND REFERENCE

Government Code Section 12838.5 provides that commencing July 1, 2005, CDCR succeeds to, and is vested with, all the powers, functions, duties, responsibilities, obligations, liabilities, and jurisdiction of abolished predecessor entities, such as Department of Corrections, Department of the Youth Authority, and Board of Corrections.

Penal Code (PC) Section 5000 provides that commencing July 1, 2005, any reference to Department of Corrections in this or any code, refers to the CDCR, Division of Adult Operations. PC Section 5050 provides that commencing July 1, 2005, any reference to the Director of Corrections in this or any other code, refers to the Secretary of the CDCR. As of that date, the office of the Director of Corrections is abolished.

PC Section 5054 provides that commencing July 1, 2005, the supervision, management, and control of the State prisons, and the responsibility for the care, custody, treatment, training, discipline, and employment of persons confined therein are vested in the Secretary of the CDCR. PC Section 5055 provides that commencing July 1, 2005, all powers and duties previously granted to and imposed upon the Department of Corrections shall be exercised by the Secretary of the CDCR. PC Section 5058 authorizes the Director to prescribe and amend rules and regulations for the administration of prisons and for the administration of the parole of persons. PC Section 5058.3 authorizes the Director to certify in a written statement filed with Office of Administrative Law that operational needs of the department require adoption, amendment, or repeal of regulation on an emergency basis.

mailto:rpmb@cdcr.ca.gov

Notice – NCR #24-03 2 April 26, 2024

INFORMATIVE DIGEST / POLICY STATEMENT OVERVIEW

Currently, the Developmental Disability Program (DDP) is described in the Clark Remedial Plan, which is the result of the Clark vs. California settlement order and various agreements between the department and plaintiffs. This remedial plan concerns the care and treatment of inmates with developmental disabilities.

The proposed regulatory action provides for equal opportunities for developmentally disabled inmates and will bring the department into compliance with the Clark v. California settlement order by establishing policies for immediate and ongoing compliance with provisions of the Americans with Disabilities Act (ADA).

Revisions provide for the identification, classification, housing, protection, and nondiscrimination of inmates in the DDP. Inmates will be assessed to determine their DDP designation level, and they will be provided with adaptive support services commensurate with their adaptive support needs. No qualified inmate with a disability, because of that disability, shall be subjected to discrimination or be denied the benefits of programs, services, or activities of the department.

This action will:

• Provide for new definitions in section 3000 related to the Developmental Disability Program (DDP).

• Establish that library staff shall provide orientation to inmates in the DDP for the law library and other library services.

• Require that staff meet privately with inmates in the DDP with potential victimization concerns, to query for possible victimization.

• Incorporate by reference, into Title 15, Division 3, four new CDCR Forms: CDCR Form 128C-2 (Rev. 01/24), Developmental Disability Program Adaptive Supports Screening Results; CDCR Form 200-A (01/24), Developmental Disability Program Adaptive Support Log – Housing Unit; CDCR Form 200-B (01/24), Developmental Disability Program Adaptive Support Log – Work/School; and CDCR Form 0201 (01/24), Condemned Incarcerated Persons - Waiver of Developmental Disability Program Screening and Inclusion.

• Establish new section 3269.5 for DDP Housing, which will take into account an inmate in the DDP’s safety when making housing determinations. Inmates in the DDP shall not be housed with inmates with a history of sexual or predatory behavior.

• Establish new section 3312.1, Disciplinary Methods for Inmates in the DDP, which requires staff to take into consideration the inmate in the DDP’s adaptive support needs as they relate to the misconduct.

• Add language regarding the Staff Assistant (SA), which is mandatory for all inmates in the DDP.

New language specifies the duties that the SA shall assist the inmate in the DDP with.

• Establish new section 3335.1, Restricted Housing for Inmates in the DDP, which provides that inmates in the DDP shall be provided their adaptive support services regardless of their housing setting.

• Establish new Article 9.1, Developmental Disability Program, and sections 3369.5 through 3369.13, which set forth provisions regarding the DDP such as: general policy, DDP categories, screening and processing, adaptive support services, interdisciplinary support team, work and program assignments, and academic assignments.

• Establish new section 3376.2, Classification of Inmates in the DDP, ensuring that inmates in the DDP are not exposed to a significant risk of harm, abuse, or harassment.

DOCUMENTS INCORPORATED BY REFERENCE

CDCR Form 128C-2 (Rev. 01/24), Developmental Disability Program Adaptive Supports Screening Results.

CDCR Form 200-A (01/24), Developmental Disability Program Adaptive Support Log – Housing Unit.

CDCR For 200-B (01/24), Developmental Disability Program Adaptive Support Log – Work/School.

CDCR Form 0201 (01/24), Condemned Incarcerated Persons - Waiver of Developmental Disability Program Screening and Inclusion.

Notice – NCR #24-03 3 April 26, 2024

SPECIFIC BENEFITS ANTICIPATED BY THE PROPOSED REGULATIONS

The proposed regulatory amendments will provide for equity, inclusivity, and nondiscrimination of developmentally disabled inmates. Revisions to statewide standardized practices will allow for inmates in the Developmental Disability Program (DDP) to have equal access and opportunity to participate in programs, services, and activities within the department. By providing inmates in the DDP with their adaptive support needs, it will help provide an even playing field so that they are able to function and perform to the best of their ability. For inmates in the DDP, safety will be enhanced by ensuring their appropriate housing, and that they are monitored for any victimization concerns. Lastly, the proposed regulations will provide compliance with existing court orders and evolving ADA law.

EVALUATION OF INCONSISTENCY/INCOMPATIBILITY WITH EXISTING LAWS AND REGULATIONS

Pursuant to Government Code 11346.5(a)(3)(D), the department has determined the proposed regulations are not inconsistent or incompatible with existing regulations. After conducting a review for any regulations that would relate to or affect this area, the department has concluded that these are the only regulations that concern the Developmental Disability Program.

LOCAL MANDATES

This action imposes no mandates on local agencies or school districts, or a mandate which requires reimbursement of costs or savings pursuant to Government Code Sections 17500 - 17630.

FISCAL IMPACT STATEMENT

• Cost or savings to any state agency: None

• Cost to any local agency or school district that is required to be reimbursed: None

• Other nondiscretionary cost or savings imposed on local agencies: None

• Cost or savings in federal funding to the state: None

EFFECT ON HOUSING COSTS

The department has made an initial determination that the proposed action will have no significant effect on housing costs.

COST IMPACTS ON REPRESENTATIVE PRIVATE PERSONS OR BUSINESSES

The department is not aware of any cost impacts that a representative private person or business would necessarily incur in reasonable compliance with the proposed action.

SIGNIFICANT STATEWIDE ADVERSE ECONOMIC IMPACT ON BUSINESS

The department has made an initial determination that the proposed regulations will not have a significant statewide adverse economic impact directly affecting business, including the ability of California businesses to compete with businesses in other states, because the proposed regulations place no obligations or requirements on any business.

EFFECT ON SMALL BUSINESSES

The department has determined that the proposed regulations will not affect small businesses. This action has no significant adverse economic impact on small business because they place no obligations or requirements on any business.

RESULTS OF THE ECONOMIC IMPACT ASSESSMENT

The department has determined that the proposed regulation will have no effect on the creation of new, or the elimination of existing, jobs or businesses within California, or effect the expansion of businesses currently doing business in California. The department has determined that the proposed regulation will have no effect on the state’s environment or worker safety. The welfare of CDCR inmates in the DDP may benefit by allowing for them to be treated with equity, inclusivity, and nondiscrimination, and protecting them from harassment or discrimination, which will preserve their dignity and self-esteem.

Notice – NCR #24-03 4 April 26, 2024

CONSIDERATION OF ALTERNATIVES

The department must determine that no reasonable alternative considered by the department or that has otherwise been identified and brought to the attention of the department would be more effective in carrying out the purpose for which the action is proposed, would be as effective and less burdensome to affected private persons than the proposed regulatory action, or would be more cost-effective to affected private persons and equally effective in implementing the statutory policy or other provisions of law. Interested persons are invited to present statements or arguments with respect to any alternatives to the changes proposed at the scheduled hearing or during the written comment period.

AVAILABILITY OF PROPOSED TEXT AND INITIAL STATEMENT OF REASONS

The department has prepared and will make available the text and the Initial Statement of Reasons (ISOR) of the proposed regulations. The rulemaking file for this regulatory action, which contains those items and all information on which the proposal is based (i.e., rulemaking file) is available to the public upon request directed to the department's contact person. The proposed text, ISOR, and Notice of Proposed Regulations will also be made available on the department’s website: www.cdcr.ca.gov.

AVAILABILITY OF THE FINAL STATEMENT OF REASONS

Following its preparation, a copy of the Final Statement of Reasons may be obtained from the department’s contact person.

AVAILABILITY OF CHANGES TO PROPOSED TEXT

After considering all timely and relevant comments received, the department may adopt the proposed regulations substantially as described in this Notice. If the department makes modifications which are sufficiently related to the originally proposed text, it will make the modified text, with the changes clearly indicated, available to the public for at least 15 days before the department adopts, amends, or repeals the regulations as revised. Requests for copies of any modified regulation text should be directed to the contact person indicated in this Notice. The department will accept written comments on the modified regulations for at least 15 days after the date on which they are made available.

https://www.cdcr.ca.gov

Text - DDP 4/26/2024 1

TEXT OF PROPOSED REGULATIONS

In the following, strikethrough indicates deleted text and underline indicates added, amended, or moved text.

California Code of Regulations, Title 15, Division 3, Adult Institutions, Programs and Parole

Chapter 1. Rules and Regulations of Adult Operations and Programs

Article 1. Behavior

3000. Definitions.

[Section 3000 is amended to alphabetically merge the definitions below with those that exist in the regulations.]

Adaptive Functioning Deficits are cognitive impairments that impact the abilities necessary to care for oneself or to access programs, services, and activities in a correctional setting. Participants in the Developmental Disability Program (DDP) with adaptive functioning deficits require adaptive services to help them program effectively.

Adaptive Support Needs are needs a participant in the DDP may have that require adaptive support services to help them program effectively in the correctional setting.

Specific adaptive support needs vary from person to person and are unique to each individual. They can include, but are not limited to: prompts to perform self-care or activities of daily living; assistance with reading or writing; the use of slower or simple communication; and the need for staff to remind or explain rules and procedures.

Adaptive Support Services are services provided to inmates with low cognitive functioning (usually Intelligence Quotient [IQ] of 75 or below) and concurrent deficits or impairments in adaptive functioning, to help the inmate program effectively and safely in the correctional setting. Adaptive support services include, but are not limited to:

monitoring, prompting, coaching, or assisting with activities of daily living.

Certificate of Attendance and Participation (CAP) is a certificate of educational completion that may be awarded to eligible inmates in the Developmental Disability Program (DDP) with severe cognitive disabilities who have not made educationally expected progress on formative, summative, and standardized educational assessments pertaining to their enrolled classes. The CAP is not an academic credential. For purposes of work and program assignments within the department, it validates that the inmate in the DDP has satisfactorily completed a prescribed high school alternative course of study for employment applications, Department of Rehabilitation services, and graduation participation. A CAP may be approved by the Classification Committee on a case-by-case basis, if the inmate meets eligibility criteria as outlined in subsection 3369.13(e)(1).

Text - DDP 4/26/2024 2

Developmental Disability is defined as a disability that continues, or can be expected to continue, indefinitely, and constitutes a substantial disability for that individual, regardless of the age of onset. It includes intellectual disability, cerebral palsy, epilepsy, and autism.

It also includes disabling conditions associated with mild or moderate memory deficits and also those found to be closely related to intellectual disability or to require treatment similar to that required for individuals with an intellectual disability, but does not include other disabling conditions that are solely physical in nature.

Developmental Disability Program (DDP) is the department’s plan, policies, and procedures to assure identification, classification, housing, protection, and nondiscrimination of inmates with developmental disabilities and those with cognitive and concurrent adaptive functioning deficits meeting the established inclusion criteria.

Disability is a physical, mental, cognitive, or developmental condition that impairs or limits one or more major life activities of a person. Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, working, and the operation of a major bodily function, including but not limited to digestive, bowel, and bladder control.

Out-to-Medical means an inmate is temporarily removed from their assigned institution for medical treatment.

Predatory Case Factors are factors that may place an inmate in the Developmental Disability Program at risk of injury or other serious harm if housed with an inmate with a history of predatory behavior, including manipulative behavior against an individual with a disability, especially when this behavior occurred while in custody.

Qualified Inmate with a Disability means an inmate with a disability, who with or without a reasonable accommodation, meets the essential eligibility requirements for participation in programs, services, or activities provided by the department. An inmate who cannot meet the essential eligibility requirements, even with a reasonable accommodation, is not considered qualified for the program, service, or activity.

Reasonable Accommodations are modifications to programs, services, or activities, or assistive devices provided, which make it possible for a qualified inmate with a disability to achieve equal access to the department’s programs, services, or activities, without imposing an undue hardship on the department, or posing a direct threat to the health, safety, or security of the inmate, parolee, staff, institution, or anyone else.

Note: Authority cited: Sections 243(f)(4), 2717.3, 3000.03, 5058, 5058.3 and 1170.05, Penal Code; Section 10115.3(b), Public Contract Code; and Sections 4525(a), 4526 and 14837, Government Code. Reference: Sections 186.22, 243, 314, 530, 532, 600, 646.9, 653m, 832.5, 1170.05, 1203.8, 1389, 2080, 2081.5, 2600, 2601, 2700, 2717.1, 2717.6, 2932.5, 3003.5(a), 3020, 3450, 3550, 4570, 4576, 5009, 5050, 5054, 5068, 7000 et seq.

Text - DDP 4/26/2024 3 and 11191, Penal Code; Sections 1132.4 and 1132.8, Labor Code; Sections 10106, 10108, 10108.5, 10115, 10115.1, 10115.2, 10115.3 and 10127, Public Contract Code;

and Section 999, Military and Veterans Code; Section 391, Code of Civil Procedure;

Section 297.5, Family Code; Section 4512, Welfare and Institutions Code; Sections 8550, 8567, 12838 and 12838.7, Government Code; Governor's Prison Overcrowding State of Emergency Proclamation dated October 4, 2006; In re Bittaker, 55 Cal.App. 4th 1004, 64 Cal. Rptr. 2d 679; Section 11007, Health and Safety Code; Madrid v. Cate (U.S.D.C. N.D.

Cal. C90-3094 TEH); Sassman v. Brown (E.D. Cal. 2015) 99 F.Supp.3d 1223; Mitchell v.

Cate, USDC ED 2:08-CV-01196-TLN-EFB; In re Garcia (2012) 202 Cal.App.4th 892;

Quine v. Beard, No. C 14-02726 JST; and Clark v California (2002) USDC-ND (No. C-96- 1486-CRB); Americans with Disabilities Act, Public Law 101-336, July 26, 1990, 104 Stat.

328.

3004. Rights and Respect of Others.

[Subsections 3004(a) through (b) are unchanged.]

[Subsection 3004(c) is amended to read:]

(c) Inmates, parolees, and employees will not subject other persons to any form of discrimination because of race, religion, nationality, sex, political belief, age, physical or mental handicap disability, or other forms of discrimination prohibited by law.

Note: Authority cited: Section 5058, Penal Code. Reference: Section 5054, Penal Code;

Americans with Disabilities Act, Public Law 101-336, July 26, 1990, 104 Stat. 328.

Article 2. State-Issued Clothing and Linen

3031. Neatness and Laundry Exchange.

[Subsection 3031(a) is amended to read:]

(a) Inmates shall be appropriately clothed at all times consistent with the specific unit, work or program activities, and as directed by staff. Inmate clothing shall be worn in the manner in which it was manufactured to be worn.

[New subsection 3031(b) is adopted to read:]

(b) Staff shall provide reminders, and assistance as necessary to inmates in the Developmental Disability Program (DDP), and monitor them to ensure they are wearing clean clothing, they have clean linens, and their laundry is being exchanged, if indicated on the inmate’s automated CDCR Form 200-A (01/24), Developmental Disability Program Adaptive Support Log – Housing Unit, which is incorporated by reference, and is located in the Strategic Offender Management System (SOMS).

[Existing subsection 3031(b) is renumbered to (c) but is otherwise unchanged.]

Text - DDP 4/26/2024 4

(b)(c) Each inmate shall maintain issued clothing and linen as neat and clean as conditions permit. Weekly laundry exchange shall be provided on a one-for-one basis limited as follows:

(1) Shirts or blouses, two.

(2) Jeans or slacks, two.

(3) Undershirts, three.

(4) Undershorts or panties, three.

(5) Sheets, two.

(6) Pillow case, one.

(7) Socks, three pairs.

(8) Towels, two.

[New subsection 3031(d) is adopted to read:]

(d) Adjustments to the above limits shall be made on a case-by-case basis for inmates with special clothing needs, including those with medical or disability needs.

Note: Authority cited: Section 5058, Penal Code. Reference: Section 5054, Penal Code.

Clark v California (N.D.Cal. 2002) No. C-96-1486-CRB; In re Armstrong (N.D. Cal. 1998) No. C 94-02307 and Remedial Plan (amended January 3, 2001); Plata v. Newsom (N.D.Cal. 2001) No. C-01-1351-JST.

Article 3. Work and Education

3040. Participation.

[Subsection 3040(a) is amended to read:]

(a) It is the department’s policy to ensure that all inmates, regardless of disability, are afforded equal access to participate in programs, services, and activities. Every able-bodied individual committed to the custody of the Secretary of the Department of Corrections and Rehabilitation, with the exception of those individuals meeting the criteria established in section 3044.1(d)(2)(B), is obligated to work as assigned by department staff and by personnel of other agencies to whom the inmate's custody and supervision may be delegated. Assignment may be up to a full day of work, education, other programs, or a combination of work, education, or other programs. Inmates shall not be denied an assignment solely on the basis of their disability as long as they, with or without a reasonable accommodation, meet the essential eligibility requirements for participation.

[Subsections 3040(b) through (e) are unchanged.]

[Subsection 3040(f) is amended to read:

(f) Any staff request for removal of an inmate from a program shall be submitted to the inmate's correctional counselor on a CDC General Chrono Form. The counselor shall

Text - DDP 4/26/2024 5 refer the request to a classification committee for consideration and action. If a request is for cause, defined as behavior that would result in loss of participation credit pursuant to section 3043.2(a), the inmate may be temporarily relieved of the position and denied pay (if a paid position), pending classification committee action. Inmates shall not be removed due to their disability if they are able to complete the essential functions of the job, with or without reasonable accommodation.

[Subsections 3040(g) through (l) are unchanged.]

Note: Authority cited: Sections 2700 and 5058, Penal Code. Reference: Section 1182, Labor Code; and Sections 502, 2933, 5054 and 5068, Penal Code.

3041. Performance.

[Subsection 3041(a) is unchanged.]

[Subsection 3041(b) is amended to read:]

(b) Inmates must report to their place of assignment at the time designated by the institution's schedule of activities and as instructed by their assignment supervisor.

Inmates may not leave an assignment without permission to do so. Inmates in the DDP may require prompts or reminders to attend their assignments.

[Subsections 3041(c) through (e)(2) are unchanged.]

[New subsection 3041(f) is adopted to read:]

(f) Inmates shall be afforded a reasonable accommodation based on their identified disability for any work or program assignment, as long as the inmate does not meet the criteria for medically disabled under section 3044.1(d)(2)(B).

[New subsection 3041(g) is adopted to read:]

(g) For inmates in the Developmental Disability Program (DDP), evaluation for removal from a program assignment shall be done on a case-by-case basis as outlined in sections 3041.1(e), 3044.1(d)(2)(B), and 3376.2(e).

Note: Authority cited: Section 5058, Penal Code. Reference: Section 5054, Penal Code;

and Sections 2297, 2318, 2320 and 1798 et seq., Civil Code. Clark v California (2002) USDC-ND (No. C-96-1486-CRB); Americans with Disabilities Act, Public Law 101-336, July 26, 1990, 104 Stat. 328.

Text - DDP 4/26/2024 6

3041.1. Paid Inmate Work/Training Assignment Criteria.

[Subsections 3041.1(a) through (d) are unchanged.]

[New subsection 3041.1(e) is adopted to read:]

(e) An inmate’s Developmental Disability Program (DDP) status may not be used as the sole basis to disqualify or remove an inmate from a position. An inmate in the DDP may be disqualified or removed on a case-by-case basis as outlined in sections 3044.1(d)(2)(B), and 3376.2(e). Consideration for disqualification or removal from a position shall take into account factors, including but not limited to: the inmate’s ability to perform the essential functions of the program with or without a reasonable accommodation, the inmate’s documented disciplinary behavior, or the inmate’s documented refusal to work as directed.

Note: Authority cited: Section 5058, Penal Code. Reference: Section 5054, Penal Code.

Clark v California (2002) USDC-ND (No. C-96-1486-CRB); Americans with Disabilities Act, Public Law 101-336, July 26, 1990, 104 Stat. 328.

Article 3.4. Inmate Work and Privileges

3044.1. Special Assignments.

[Subsections 3044.1(a) through (d)(2)(A) are unchanged.]

[Subsection 3044.1(d)(2)(B) is amended to read:]

(B) Medically disabled. When an inmate is unable to participate in any assigned work, academic, Career Technical Education program, or other such program activity assigned work or program, even with reasonable accommodation, because of a medically determinable physical, or mental impairment that is expected to result in death or last six months or more, the classification committee shall place the inmate on medically disabled status. The inmate work group status shall be in accordance with section 3044(b)(1), Work Group A-1 and Privilege Group A, unless the inmate is assigned Work Group M in accordance with subsection 3044(b)(8).

[Subsections 3044.1(e) through (h) are unchanged.]

Note: Authority cited: Section 5058, Penal Code. Reference: Sections 2933, 2933.05, 2933.3, 2933.6, 5054 and 5068, Penal Code

Subchapter 2. Inmate Resources

Article 3. Confidentiality and Privacy

3120. Inmate Library Requirements.

Text - DDP 4/26/2024 7

[Subsections 3120(a) through (c) are unchanged.]

[New subsections 3120(d) through (g) are adopted to read:]

(d) Notwithstanding reasonable circumstances for delay, library staff shall provide orientation to inmates in the Developmental Disability Program (DDP) for Law Library and other library services within 30 calendar days of the inmate’s arrival at an institution.

Circumstances that may warrant delay include, but are not limited to: inmate refusal, modified programming at the institution, or situations that pose a threat or jeopardize the safety or security of the inmate, staff, the institution, or others.

(e) Staff shall ensure an inmate with a disability or an inmate in need of assistance with communication is provided the necessary assistance to access library services, including, but not limited to: reading; writing; scribing department, court, and Board of Parole Hearings forms or related documents; explaining department, court, and Board of Parole Hearings processes or documents; identifying research materials; and accessing electronic readers, assistive devices, and inmate assistants.

(f) Staff shall not provide legal advice or conduct legal research. For an inmate with a disability impacting their ability to communicate, staff shall assist, when necessary, with the completion of the letter to the court requesting assistance, due to the inmate’s developmental disability.

(g) The letter to the court should include the inmate’s claim that they have a disability that makes it difficult to read, write, or understand the process or legal material regarding the case.

Note: Authority cited: Section 5058, Penal Code. Reference: Sections 2600, 2601 and 5054, Penal Code; Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986); and Bounds v.

Smith, 97 S.Ct. 1491 (1977), 430 U.S. 817. Clark v California (2002) USDC-ND (No.

C-96-1486-CRB); Americans with Disabilities Act, Public Law 101-336, July 26, 1990, 104 Stat. 328.

Article 9. Personal Property and Religious Personal Property

3192. Possession and Exchange.

[Initial paragraph is numbered 3192(a) but is otherwise unchanged.]

(a) An inmate's right to inherit, own, sell or convey real and/or personal property does not include the right to possess such property within the institutions/facilities of the department. An inmate may not exchange, borrow, loan, give away or convey personal property to or from other inmates. Violation(s) of this rule may result in disciplinary action, and confiscation and/or disposal of the personal property.

Text - DDP 4/26/2024 8

[New subsections 3192(b) and (c) are adopted to read:]

(b) For inmates who are participants in the Developmental Disability Program (DDP) and identified with potential victimization concerns, staff are required to meet privately with the inmate and query for possible victimization concerns, including but not limited to theft or destruction of property, manipulation, pressuring, and undue influence regarding their property.

(c) Staff shall meet with the inmate privately, and as frequently as listed on their automated CDCR Form 200-A (01/24), Developmental Disability Program Adaptive Support Log - Housing Unit, which is incorporated by reference and is located within SOMS.

Note: Authority cited: Section 5058, Penal Code. Reference: Sections 2601 and 5054, Penal Code. Clark v California (2002) USDC-ND (No. C-96-1486-CRB).

Subchapter 3. Inmate Activities

Article 2. Recreational and Physical Education Programs

3220. Recreational and Physical Education Program Participation.

[Subsection 3220(a) is amended to read:]

(a) All Interested inmates shall be provided an equal opportunity to participate in constructive recreational and physical education programs under safe and secure conditions, consistent with the inmate's custodial classification, work/ or training assignment, privilege group, and security requirements. Reasonable accommodations shall be afforded to inmates with disabilities to facilitate their participation in recreational and physical education programs.

[Subsections 3220(b) through (g) are unchanged.]

Note: Authority cited: section 5058, Penal Code. Reference: Sections 5010 and 5054, Penal Code; Americans with Disabilities Act, Public Law 101-336, July 26, 1990, 104 Stat.

328.

Subchapter 4. General Institution Regulations

Article 1.6. Inmate Housing

3269. Inmate Housing Assignments.

[Subsection 3269(a) is unchanged.]

[Subsection 3269(b) is unchanged but is shown for reference.]

Text - DDP 4/26/2024 9

(b) Upon arrival at an institution, facility, or Reception Center, a designated screening authority shall screen an inmate for an appropriate housing assignment in a private setting. The screening authority reviewing and approving an inmate's housing assignment shall evaluate all factors to be considered when completing the Initial Housing Review (IHR), including but not limited to:

[Subsections 3269(b)(1) through (19) are unchanged.]

[New subsection 3269(b)(20) is adopted to read:]

(20) Participation in the Developmental Disability Program.

[Subsections 3269(c) through (h) are unchanged.]

[Subsection 3269(i) is amended to read:]

(i) If an inmate refuses a housing assignment, the inmate shall be subject to the disciplinary process. Refusal to accept a housing assignment shall result in the issuance of a RVR for Conduct, subsection 3005(c), Refusing to Accept Assigned Housing, for the Specific Act of Willfully Resisting, Delaying, or Obstructing any Peace Officer in the performance of Duty (subsection 3323(f)(6)). Subsequent refusals shall result in additional disciplinary action. When the refusal involves an inmate in the DDP, staff shall follow the direction set forth in section 3312.1(b).

Note: Authority cited: Section 5058, Penal Code. Reference: Section 5054, Penal Code;

and Quine v. Beard, No. C 14-02726 JST.

[New section 3269.5 is adopted to read:]

3269.5. Developmental Disability Program Housing.

(a) Nothing in this section shall preclude staff from making informed and sound custody and classification decisions, especially when there may be circumstances that may place an inmate in the Developmental Disability Program (DDP) at risk.

(b) Inmates in the DDP shall be referred to a Classification and Parole Representative (C&PR) or Classification Staff Representative (CSR) for review and endorsement to a designated DDP institution or facility appropriate for the inmate’s DDP designation (e.g., DD1, DD2, or DD3, as specified in section 3369.7), within 14 working days of designation or change in case factors, including change in DDP designation.

(c) If an inmate’s DDP designation changes, the Mental Health Clinician that performed the inmate’s assessment shall update the inmate’s identified adaptive supports, as applicable, and the inmate shall be referred to the C&PR or CSR for review and endorsement to a designated DDP institution or facility appropriate for the inmate’s new

Text - DDP 4/26/2024 10

DDP designation. Inmates with predatory case factors, as explained in section 3269.5(f), shall not be housed in DDP-designated housing areas unless the minimum exclusionary periods identified in subsection 3269.5(h) have been met.

(d) Custody or classification staff shall screen all inmates prior to being housed in a DDP-designated housing unit. During the intake process at receiving institutions, prior to housing inmates, custody staff are required to screen all inmates for single-cell status and compatibility as part of the Initial Housing Review (IHR). Classification staff shall review the IHR for single-cell status and housing restrictions during initial classification.

(e) In specialized housing areas (e.g., Restricted Housing Units, Enhanced Outpatient Program (EOP), Correctional Treatment Center (CTC), or Reception Centers), custody or classification staff shall screen potential inmates that may be considered for sharing a living area with an inmate in the DDP. Inmates with predatory case factors that have not met the established minimum exclusionary period outlined in subsection 3269.5(h), shall not be housed with inmates in the DDP with victimization concerns.

(f) Bed Assignments. The existence of predatory case factors precludes an inmate from being assigned to DDP-designated housing areas unless they have met the minimum exclusionary periods identified in subsection 3269.5(h). The following are predatory case factors that preclude an inmate from being assigned to DDP-designated housing areas unless minimum exclusionary periods have been met:

(1) Found guilty of an in-custody sexual offense, or an attempt of an in-custody sexual offense.

(2) New commitments with documented incident(s) of sexual offenses against individuals with a disability.

(3) Single-cell status due to in-cell violence.

(4) Documented in-custody conduct that demonstrates victimization or manipulative behavior against an individual with a disability, including when an inmate is found guilty of a Rules Violation Report (RVR) for any of the following charges against a person with a disability:

(A) Battery.

(B) Assault.

(C) Criminal Threats.

(D) Extortion.

(E) Stalking.

(F) Theft.

(g) Additional exclusionary factors for housing inmates in DDP housing may be determined on a case-by-case basis.

(h) The following chart provides the minimum exclusionary periods for predatory factors that are to be considered when housing other inmates with an inmate in the DDP:

Text - DDP 4/26/2024 11

Predatory Case Factor Minimum Exclusionary Period

Found guilty of an in-custody sexual offense, or an attempt (e.g., rape, forcible sodomy, oral copulation, sexual battery with aggravating factors, etc.).

Permanently excluded from DDP-designated housing and housing with an inmate in the

DDP.

New commitments to CDCR with documented incident(s) of sexual offenses against individuals with a physical, mental, or developmental disability.

Excluded from DDP-designated housing and housing with an inmate in the DDP for five years from date of reception to CDCR.

Single-cell status due to in-cell violence. Must be double-celled during the previous 2 years without in-cell violence.

Documented in-custody conduct (e.g., substantiated information in confidential C-File) that demonstrates victimization or manipulative behavior against an individual with a physical, mental, or developmental disability, including when an inmate is found guilty of an RVR for any of the following offenses against a person with a disability:

• Battery

• Assault

• Criminal Threats

• Extorting

• Stalking

• Theft

Three years has passed from most recent date of documentation.

Staff should use discretion and sound correctional judgement when determining appropriate housing for inmates in the DDP.

Each decision made on the basis of this exclusionary factor shall be evaluated on a case-by-case basis. An inmate may have committed one of the listed offenses, but it may have not been against an individual with a disability, or the circumstances surrounding the violation may lead the reviewer to believe the offense was not predatory in nature.

(i) Inmates, including those in the DDP, who have any of the identified predatory case factors specified in subsection 3269.5(f), and who have not met the established exclusionary period in subsection 3269.5(h), shall not:

(1) Be housed in a designated DDP building, unit, or wing.

(2) Share a non-DDP designated cell, bay, wing, or pod in a dorm with an inmate in the DDP that has victimization noted on their automated CDCR Form 128C-2 (Rev. 01/24), Developmental Disability Program Adaptive Supports Screening Results (Adaptive Support Form), located in SOMS, which is incorporated by reference.

(j) Inmates in the DDP with any of the above-mentioned predatory case factors specified in subsection 3269.5(f) who have not met the established exclusionary period in subsection 3269.5(h), and who also have victimization concerns noted on their Adaptive

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Support Form can be housed in a non-designated DDP building, but cannot share a cell, bay, wing, or pod in a dorm with another inmate in the DDP with victimization noted on their Adaptive Support Form, or with any inmate who has predatory case factors that have not met the established exclusionary period in subsection 3269.5(h).

(k) An inmate in the DDP with any of the existing predatory case factors specified in subsection 3269.5(f) who has not met the established exclusionary period in subsection 3269.5(h), shall be excluded from housing with inmates in the DDP who are prone to victimization.

(l) Custody staff, when reviewing double-celling eligibility, shall conduct an assessment to determine if the inmate meets any of the predatory criteria, as specified in subsection 3269.5(f).

(1) Assessments to determine the existence of predatory factors shall include, but not be limited to, review of the following documents: CDC Form 128-B, General Chrono (Rev. 04/74), incorporated by reference; Classification Committee Notes; CDC Form 804 (08/00), Notice of Pending CDC-115, incorporated by reference; Rules Violation Reports (RVRs); Initial Housing Reviews; Confidential Files; and the Probation Officer’s Report.

(2) Custody staff shall document their double-celling determination by noting either of the following in the comments section of the automated Classification Committee Chrono (Rev. 05/19), incorporated by reference, and the Initial Housing Review:

(A) Approved to cell with inmates in the DDP.

(B) Not approved to cell with inmates in the DDP.

(m) Inmates in the DDP shall be housed in designated DDP housing facilities or areas unless overriding medical, mental health, or predatory case factors exist. These factors take precedence over placement in a DDP designated setting. Separate designated DDP housing areas are not required for inmates housed in medical or mental health settings, as long as the predatory case factors referenced in subsection 3269.5(f) have been reviewed, and the minimum exclusionary periods referenced in subsection 3269.5(h) have been met. Once the overriding case factors have been addressed and the inmate in the DDP no longer requires housing in a specialized setting, the inmate shall be endorsed and transferred to a DDP designated institution or facility, as described in subsection 3269.5(b).

(n) Inmates in the DDP shall be provided required adaptive support services while housed at a non-DDP-designated housing area due to medical, mental health, or predatory case factors.

Note: Authority cited: Section 5058, Penal Code. Reference: Section 5054, Penal Code;

and Quine v. Beard, No. C 14-02726 JST, Clark v. California 123 F. 3d 1267 (9th Cir.

1997), Clark v. California (2002) USDC-ND (No. C-96-1486-CRB).

Article 4. Disorders and Emergencies

Text - DDP 4/26/2024 13

3303. Safety and Security.

[Subsections 3303(a)(1) through (a)(3) are unchanged.]

[Subsection 3303(a)(4) is amended to read:]

(4) Staff and inmates shall be familiar with fire evacuation routes, exits, and procedures.

An evacuation drill shall be conducted quarterly on each watch. Where such drill would jeopardize personal safety or facility security, staff shall conduct a walk-through of the procedures. Local operating procedures shall be adopted at each institution to ensure the safe evacuation of inmates with disabilities.

[Subsections 3303(a)(5) through (e) are unchanged.]

Note: Authority cited: Section 5058, Penal Code. Reference: Section 5054, Penal Code;

Clark v California (2002) USDC-ND (No. C-96-1486-CRB); Americans with Disabilities Act, Public Law 101-336, July 26, 1990, 104 Stat. 328.

Article 5. Inmate Discipline

[New section 3312.1 is adopted to read:]

3312.1 Disciplinary Methods for Inmates in the Developmental Disability Program.

(a) Inmates in the Developmental Disability Program (DDP) are subject to discipline in accordance with this article. However, throughout the disciplinary process, staff must take into consideration each inmate’s adaptive support need(s) as it relates to the misconduct.

(b) For inmates in the DDP, staff shall monitor the inmate’s behavior, and except as provided in subdivision (c), shall address minor misconduct informally, utilizing verbal counseling in accordance with section 3312(a)(1). Verbal counseling includes prompting, providing clear and specific instructions, utilizing effective communication, or all the above, commensurate with the inmate’s specific adaptive support need(s), and warning the inmate of consequences of continued misconduct.

(c) Should verbal counseling not correct the inmate’s behavior or if the inmate’s misconduct is serious in nature, staff shall utilize the disciplinary methods in section 3312(a)(2) and (3). Staff must take into consideration the severity of the inmate’s disability and the inmate’s need for adaptive support services when determining the method of discipline.

(1) If circumstances at the time of the alleged misconduct allow staff the opportunity to utilize verbal counseling, staff shall review the inmate’s adaptive support need(s) and provide relevant adaptive support(s). Staff must ensure the inmate understands, to the best of the inmate’s ability, the consequences of continued misconduct.

Text - DDP 4/26/2024 14

(2) The Rules Violation Report (RVR) shall include whether relevant adaptive support service(s) were provided to the inmate, and the staff’s assessment of whether the inmate understood, to the best of the inmate’s ability, the consequences of their behavior.

(3) Attempting to correct misbehavior informally is not required if the circumstances at the time of the misconduct did not allow staff the opportunity to provide verbal counseling to address the behavior.

(4) A CDCR Form 115-MH-A (Rev. 12/15), Rules Violation Report: Mental Health Assessment (MHA), incorporated by reference, shall be completed by a trained Mental Health Assessing Clinician (AC) for inmates in the DDP, consistent with section 3317.

(5) When adjudicating an RVR, the hearing official shall take into account the inmate’s adaptive support need(s), as indicated on their automated CDCR Form 128C-2 (Rev. 01/24), Developmental Disability Program Adaptive Supports Screening Results, located within SOMS and incorporated by reference, at the time of the incident, and whether the need for adaptive support(s) contributed to the misconduct.

Victimization, when listed on the 128C-2, must always be considered. The hearing official shall document in the disability section of the RVR whether or not each of the inmate’s noted adaptive support need(s) contributed to the misconduct, and how, if at all, it contributed.

(6) The hearing official shall consider the AC’s evaluation, as documented on the MHA. The hearing official shall document their consideration of the AC’s evaluation and take appropriate action to mitigate any adverse impacts to the inmate if the inmate’s behavior that led to the RVR was related to a cognitive or adaptive functioning deficit and was found to have contributed to the inmate’s behavior. The Senior Hearing Officer shall document the action taken in the Disciplinary Hearing Results section of the SOMS.

(7) The hearing official may mitigate penalties as recommended by the AC. If the hearing official does not mitigate penalties consistent with the AC’s recommendation, they shall document the reasoning for their decision.

(8) If the inmate is found guilty of a rules violation, the Chief Disciplinary Officer (CDO) shall review all disciplinary methods and action in accordance with sections 3312(b)(1) and (b)(2).