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The superintendent of the facility at which a person is placed under s. 980.065 may allow the person to leave the grounds of the facility under escort. The department of health services shall promulgate rules for the administration of this section.
Section 227.11 (2) (a), Stats., states:
Rule-making authority is expressly conferred on an agency as follows:
(a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
1. A statutory or non-statutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency’s rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
2. A statutory provision describing the agency’s general powers or duties does not confer rule­ making authority on the agency or augment the agency's rule-making authority beyond the rule­ making authority that is explicitly conferred on the agency by the legislature.
3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold in the statutory provision.
Related statutes or rules  
None.
 
Plain language analysis
Under the current s. DHS 95.06 (1), use of force in secure facilities must be governed by policies and procedures that establish a “Force Option Continuum. This model was replaced with “Intervention Options”, rendering the current rule out-of-date and at odds with existing training practices.
The Intervention Options model was adopted in the Principles of Subject Control Manual (hereinafter “Manual”) in 2012. The Manual is based on the Department of Corrections’ version of the Defense and Arrest Tactics Manual—which was approved by the WI Department of Justice and is currently used for every sworn law enforcement officer in the state. The Manual has been approved by the department and is supported by directors at both the Wisconsin Resource Center and Sand Ridge Secure Treatment Center as the standard training program designed to provide instruction on defensive tactics and use of force, consistent with federal and state guidelines.
Intervention Options emphasizes a dynamic approach to confronting threats. The model is intended to eliminate confusion about how to respond to threats that may not originate or evolve along a linear path, resulting in diminished risk of harm and liability to staff, as well as improved threat response and management.
The department also proposes to revise current rules related to escorted leaves. Under the current rule, superintendents of secure mental health facilities have discretion to grant escorted leaves to patients under limited circumstances. Requests for escorted leaves may be granted for off-site appointments and death-bed visit of relatives, to secure medically necessary health services, and to engage in pre-placement activities pursuant to an approved supervised release plan. Out-of-state escorted leaves are not currently prohibited under ch. DHS 95. However, these present logistical obstacles, require additional resources, and pose risks that secure mental health facilities face difficulty in meeting. To mitigate these challenges, the department proposes to only permit escorted leaves within the state.
Summary of, and comparison with, existing or proposed federal regulations
All searches were conducted in May 2018.
28 CFR Part 552, Subpart C governs the Use of Force and Application of Restraints on Inmates. Section 552.22, in particular, states:
28 CRF § 552.22 Principles governing the use of force and application of restraints.
(a) Staff ordinarily shall first attempt to gain the inmate's voluntary cooperation before using force.
(b) Force may not be used to punish an inmate.
(c) Staff shall use only that amount of force necessary to gain control of the inmate. Situations when an appropriate amount of force may be warranted include, but are not limited to:
(1) Defense or protection of self or others;
(2) Enforcement of institutional regulations; and
(3) The prevention of a crime or apprehension of one who has committed a crime.
(d) Where immediate use of restraints is indicated, staff may temporarily apply such restraints to an inmate to prevent that inmate from hurting self, staff, or others, and/or to prevent serious property damage. When the temporary application of restraints is determined necessary, and after staff have gained control of the inmate, the Warden or designee is to be notified immediately for a decision on whether the use of restraints should continue.
(e) Staff may apply restraints (for example, handcuffs) to the inmate who continues to resist after staff achieve physical control of that inmate, and may apply restraints to any inmate who is placed under control by the Use of Force Team Technique. If an inmate in a forcible restraint situation refuses to move to another area on his own, staff may physically move that inmate by lifting and carrying the inmate to the appropriate destination.
(f) Restraints should remain on the inmate until self-control is regained.
(g) Except when the immediate use of restraints is required for control of the inmate, staff may apply restraints to, or continue the use of progressive restraints on, an inmate while in a cell in administrative detention or disciplinary segregation only with approval of the Warden or designee.
(h) Restraint equipment or devices (e.g., handcuffs) may not be used in any of the following ways:
(1) As a method of punishing an inmate.
(2) About an inmate's neck or face, or in any manner which restricts blood circulation or obstructs the inmate's airways.
(3) In a manner that causes unnecessary physical pain or extreme discomfort.
(4) To secure an inmate to a fixed object, such as a cell door or cell grill, except as provided in § 552.24.
(i) Medication may not be used as a restraint solely for security purposes.
(j) All incidents involving the use of force and the application of restraints (as specified in § 552.27) must be carefully documented.
The department was unable to locate any federal regulations addressing patient/offender release.
Comparison with rules in adjacent states
All searches were conducted in May 2018.
Illinois
Illinois Admin. Code tit. 59 § 299.350 of the states:
Section 299.350  Security
 
a) Use of Force
1)         Force shall be employed only as a last resort or when other means are unavailable or inadequate, and only to the degree reasonably necessary to achieve a permitted purpose.  Department staff shall not employ deadly force.
2)         Use of force shall be terminated as soon as force is no longer necessary.
3)         Medical screening and/or care shall be conducted following any use of force that results in bodily injury.
4)         Corporal punishment is prohibited.
 
b)         Force may be used under the following circumstances:
 
1)         To compel compliance with a lawful order given by an employee to ensure the safety and security of the facility.
2)         To protect oneself or any other person from physical assaults, injury or death.
3)         To prevent escapes from the facility or from the custody of employees in the community.
4)         To protect State property or the property of others from unauthorized use, possession, damage or destruction.
5)         To prevent or suppress a riot, revolt, mutiny or insurrection, or other serious disturbance.
The department was unable to locate administrative rules governing patient/offender leaves.
Iowa
IAC Rules 201.38.1-4 address sex offender management and treatment. However these rules do not include provisions related to the use of force. IAC Rule 201.20.12 and Iowa’s Department of Corrections policy IS-RL-04 discuss the availability of “Furloughs” for certain types of offenders, but exclude sex offenders in particular and in all cases prohibit out-of-state leaves.
Michigan
Michigan Admin. Code r. 791.706 states:
Use of force.
Rule 6. A facility shall establish and maintain written policy, procedure, and practice which restrict the use of physical force to instances of justifiable self defense, protection of others, protection of property, and prevention of escapes, and then only as a last resort and in accordance with appropriate statutory authority. Physical force shall not be used as punishment. A written report is prepared after force is used and is submitted to administrative staff for review.
Policy directive 04.05.110 from the Michigan Department of Corrections, which addresses Use of Force, is exempt from public disclosure.
The department was unable to locate administrative rules governing patient/offender leaves. However, policy direction 04.04.140 from the Michigan Department of Corrections, addresses “Funeral and Sick Bed Visits.” These visits are restricted to in-state destinations.
Minnesota
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