Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF CORRECTIONS

OF THE STATE OF MONTANA

In the matter of the adoption of New Rule I pertaining to expansion of adult community corrections contracted treatment facilities or programs

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NOTICE OF ADOPTION

TO: All Concerned Persons

1. On July 28, 2011, the Department of Corrections published MAR Notice No. 20-7-48 pertaining to the public hearing on the proposed adoption of the above-stated rule at page 1336 of the 2011 Montana Administrative Register, Issue Number 14.

2. On August 19, 2011, a public hearing was held on the proposed adoption of the above-state rule. Comments were received by the August 25, 2011 deadline.

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

COMMENT #1: Two persons commented that if the department must engage in the competitive bidding process, the rule is unclear whether the competitive bids pertain to the full contract capacity or just to the increase.

RESPONSE #1: The comment is well taken. The department will amend the rule to reflect that the competitive bidding process, if it is necessary, will only pertain to the increase, not to the entire contract.

COMMENT #2: Two persons commented that it would be more equitable if the department would allow expansions of less than 25 percent if there were 12 months, not 24 months, remaining on the contract.

RESPONSE #2: The comment is well taken and the rule has been amended to reflect a 12-month period remaining on the contract for an expansion of less than 25 percent that can be undertaken without competitive bidding.

COMMENT #3: One person asked for clarification about whether the rule pertained to treatment facilities that were not established through the competitive procurement process and requests that the rule contain a reference about contracted treatment facilities that were not established through competitive procurement.

RESPONSE #3: Statutory authority only allows the department to establish rules for the expansion of treatment facilities or programs that were not established through the competitive procurement process. The rule contains a reference in the last sentence regarding facilities or programs that were not established through the competitive procurement process and specifies that the department cannot expand the contract capacity of those facilities without engaging in the competitive procurement process.

COMMENT #4: Several persons commented that the rule is inconsistent with ARM 20.7.511 concerning increases over 50 percent for prerelease programs.

RESPONSE #4: The department has amended ARM 20.7.511 to make the two rules consistent with each other.

COMMENT #5: One person commented that the rule is inconsistent with ARM 20.7.511 in that New Rule I does not mandate a public hearing in order for a treatment facility to expand, but ARM 20.7.511 requires a public hearing for an expansion of a prerelease center.

RESPONSE #5: ARM 20.7.511 requires a public hearing because the rule's authorizing statute 53-1-203, MCA demands a public hearing before an expansion of a prerelease center may take place. The authorizing statute for expansion of treatment facilities contains no similar requirement. The department will maintain the public hearing requirement for expansion of prerelease centers and will not amend New Rule I in this regard.

4. The department has adopted New Rule I (20.7.1001) as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined. The effective date of New Rule I will be October 1, 2011.

NEW RULE I (20.7.1001) INCREASE IN CONTRACT CAPACITY (1) The Department of Corrections may biennially increase the department contract capacity by not more ~~that~~ than 25 percent for a contracted treatment facility or program that was established through competitive bidding.

(2) The department may biennially increase the contract capacity of a contracted treatment facility or program by more ~~that~~ than 25 percent but less than 50 percent for a treatment facility or program that was established through competitive bidding if:

(a) and (b) remain as proposed.

(3) Before the department executes a contract amendment for an increase of more ~~that~~ than 25 percent but less ~~that~~ than 50 percent, the department must give notice to the public and to current treatment facility or program providers of its intent to expand the existing treatment facility or program.

(a) through (e) remain as proposed.

(f) If the department receives notification under this subsection from a valid potential contractor who is able to provide such services, the department may not proceed without opening up the expansion to competitive bidding for the expansion portion only.

(4) The department must engage in the competitive procurement process for the expansion portion in order to increase by more than 50 percent the contract capacity of a treatment facility or program that was established through the competitive procurement process or to increase the contract capacity of a treatment facility or program that was not established through competitive procurement.

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

Diana L. Koch Mike Ferriter, Director

Rule Reviewer Department of Corrections

Certified to the Secretary of State September 12, 2011