Can you get kicked out of RDAP?

Yes. The rule allows removal for two reasons:

"(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."

Drug Abuse Program Coordinator (DAPC)

The BOP staff member who runs drug treatment at a prison. The DAPC places people in RDAP and can remove them.

Warnings and treatment steps come first

Before removal, staff ordinarily try at least one "treatment intervention." Under BOP policy, staff will (P5330.11, ch. 2, § 2.5.12(d), p. 18):

  • meet with you about your behavior or lack of progress
  • assign treatment steps to fix it
  • warn you what happens if it does not change
  • write the meeting and the steps in your record
  • change your treatment plan, which you and staff both sign

If repeated steps do not work, the treatment team meets to decide whether to remove you. Within two working days of a decision to expel you, the DAPC must tell you in person and in writing, with the reason (P5330.11, ch. 2, § 2.5.12(d), p. 18).

Incident reports and RDAP

An incident report does not automatically get you kicked out of RDAP anymore.

Incident report

A written charge that you broke a prison rule. Serious charges are heard by a Discipline Hearing Officer (DHO).

Before 2016, the rule required automatic removal when a DHO found you committed certain acts, such as drug or alcohol use or violence. The 2016 rule change deleted that paragraph. BOP explained that people "will only be expelled from RDAP according to criteria in § 550.53(g)(1)," the disruptive-behavior and poor-progress rule above (81 Fed. Reg. 24484, 24488 (Apr. 26, 2016)).

Misconduct still matters. BOP's early release policy lists "receives an incident report for misconduct related to drugs, alcohol, and/or act(s) of violence" as an example of why someone may be expelled (P5331.02, § 12.a(4), p. 8). If you are expelled for such an incident and the DHO later finds you not guilty, the treatment team meets to decide whether to put you back in (P5331.02, § 12.a(4), pp. 8–9).

BOP's 2009 treatment policy still prints the old, pre-2016 automatic-removal rule (P5330.11, ch. 2, § 2.5.12, p. 18; ch. 1, § 1.6.3, p. 4). BOP's 2016 update to that policy reprinted the new rule but did not remove those old lines (P5330.11 CN-1, pp. 1–2). The regulation controls.

Today a DHO finding does not by itself remove you from RDAP. The DAPC decides under § 550.53(g)(1), ordinarily after a formal warning (81 Fed. Reg. 24484, 24488 (2016)). A serious incident report can still lead to removal.

What expulsion costs you

Leaving RDAP early, by refusing, quitting or removal, has set effects. The rule says you are not eligible for (28 C.F.R. § 550.53(h)):

  • a furlough, other than possibly an emergency furlough
  • pay above the maintenance pay level, bonus pay or vacation pay
  • a Federal Prison Industries job, unless the warden makes an exception for labor needs

Refusal, withdrawal or expulsion is also "a factor to consider in determining length of community confinement" (§ 550.53(h)(2)). You may lose rewards you already earned (28 C.F.R. § 550.54(c)).

If you were eligible for early release, the DAPC changes your status to ineligible and tells BOP's sentence computation center (P5331.02, § 12.a(4), p. 8).

If BOP moved you to another prison for RDAP, it may send you back to your old prison (28 C.F.R. § 550.53(g)(3)).

Withdrawing on your own

You can quit RDAP. Withdrawals are recorded on a Change in RDAP and § 3621(e) Status form, and an eligible person becomes ineligible for early release (P5330.11, ch. 2, § 2.5.12(c), p. 17). The effects listed above apply.

Being moved to "incomplete" status is different. That can happen if you go to the Special Housing Unit, leave on a court order, or are moved without warning.

The policy says "An incomplete does not mean the inmate is automatically a failure." The DAPC and treatment team decide the outcome based on the reason (P5330.11, ch. 2, § 2.5.12(c), p. 17).

Kicked out of RDAP aftercare

If you refuse or fail Community Treatment Services (CTS), the community part of RDAP, you fail RDAP and "are disqualified for any additional incentives" (28 C.F.R. § 550.56(a)). CTS was formerly called TDAT. See the aftercare guide.

BOP's community treatment staff start any delay or removal of your early release date for treatment problems (P7430.03, § 6, p. 8). BOP's early release policy gives examples such as escapes, halfway-house failures and loss of good conduct time by the DHO (P5331.02, § 12.d(1), p. 12).

If you were returned from a halfway house because of an incident report, and the DHO later expunges it, your unit team asks to restore your completion status and early release eligibility (P5331.02, § 12.b(5), p. 11).

Getting back in: readmission after 90 days

You can reapply. BOP policy says:

"An inmate who previously declined, withdrew, or failed RDAP may reapply for readmission to the program after 90 days through an Inmate Request to Staff form to the DAPC."

The treatment team decides, sometimes with your unit team. It may consider whether you took the non-residential drug program or the drug education course.

The DAPC gives you the decision in person and in writing. If you are readmitted, you get no credit for your earlier time in RDAP (P5330.11, ch. 2, § 2.5.14, p. 19).

How to challenge an RDAP decision

You use BOP's administrative remedy process. The rule says you "may seek formal review of complaints regarding the operation of the drug abuse treatment program by using administrative remedy procedures in 28 CFR part 542" (28 C.F.R. § 550.57).

Administrative remedy

BOP's formal complaint process. It lets you "seek formal review of an issue relating to any aspect of" your own confinement (28 C.F.R. § 542.10(a)).

The steps and deadlines are in 28 C.F.R. part 542 and BOP's policy (P1330.18, §§ 7–8, p. 4):

  1. Try to resolve it informally. Raise the issue with staff first (§ 542.13). The warden can waive this step for an acceptable reason.
  2. File a BP-9 with the warden. You must finish the informal step and file the BP-9 within 20 calendar days after the decision or event you are challenging (§ 542.14(a)).
  3. Appeal to the Regional Director on a BP-10. File within 20 calendar days of the date the warden signed the response (§ 542.15(a)).
  4. Appeal to the General Counsel on a BP-11. File within 30 calendar days of the date the Regional Director signed the response. This is the final level.

Some rules for every step:

  • Response times. The warden has 20 calendar days to respond, the Regional Director 30, and the General Counsel 40. Each can extend once. If no response comes in time, you may treat it as a denial (§ 542.18).
  • Late filing. A deadline can be extended if you show a valid reason for the delay, such as being in transit without your papers (§ 542.14(b)).
  • Decisions made outside your prison. A decision that did not come from the warden or the warden's staff may be filed first with the BOP office that made it, then appealed straight to the General Counsel (§ 542.14(d)(5)).
  • Help. You may get help from other prisoners, staff, family members or lawyers. But no one else may file for you (§ 542.16(a)).
  • One issue per form. Put one complaint, or a few closely related ones, on each form. You cannot raise new issues in an appeal (§§ 542.14(c)(2), 542.15(b)(2)).

Can a court review an RDAP decision?

Sometimes, but court review is limited. Whether a court can hear the claim depends on the kind of claim, where you are held, and what you have already filed with BOP. A claim that BOP simply made the wrong call in your case is treated very differently from a claim that BOP broke a statute or the Constitution.

A federal law says the Administrative Procedure Act's review sections do not apply to BOP decisions under the imprisonment statutes, which include § 3621 (18 U.S.C. § 3625). In the Ninth Circuit, a court cannot review an individual RDAP decision, such as an expulsion, when the only claim is that BOP got your case wrong, but it can still hear a claim that BOP acted against established federal law, broke the Constitution or went beyond its statutory authority (Reeb v. Thomas, 636 F.3d 1224 (9th Cir. 2011), slip op. at 3095–96). Reeb binds only courts in the Ninth Circuit; elsewhere, whether a habeas petition under 28 U.S.C. § 2241 or another route is open, and what must be filed with BOP first, depends on the court decisions that apply where you are.

Do not assume every RDAP decision can go to court. Do not assume none can. Asking for a consultation does not extend any BOP or court deadline.

What should you do after an RDAP removal or denial?

Keep every paper about the decision, write a short timeline, and find the remedy deadline right away. The usual deadline to file a BP-9 with the warden is 20 calendar days after the decision (§ 542.14(a)). Reapplying for RDAP does not stop that deadline from running.

Papers to keep:

  • the written removal or eligibility notice
  • any warnings and changes to your treatment plan
  • any incident report and the DHO decision
  • each administrative remedy form and each dated response

Then name the kind of dispute. Is it about treatment progress, the steps staff followed, how your offense was classified, an incident report, or whether you can finish community treatment? Each one is a different issue.

Reapplying is not an appeal. The 90-day reapplication rule after you decline, withdraw or fail RDAP is different from the six-month rule for getting back on the waiting list in the getting in guide.

Reapplying does not give back credit for earlier time in the program.

Not every dispute starts with the same form. A remedy that is rejected may need to be fixed and filed again (§ 542.17). An appeal of a DHO decision starts with the Regional Director, not the warden (§ 542.14(d)(2)).

A sensitive-issue filing is narrow. You may send a request straight to the Regional Director only if you reasonably believe the issue is sensitive and your safety or well-being would be in danger if it became known at your prison. You must mark it "Sensitive" and explain in writing why you did not file at the prison (§ 542.14(d)(1)).

If the Regional Director does not agree it is sensitive, the request is not accepted there, and you are told in writing. You may then file it with the warden, who must allow a reasonable extension of time (§ 542.14(d)(1)). For other first-level requests, the usual 20-day BP-9 deadline applies (§ 542.14(a)).