ORDER OF THE
DEPARTMENT OF HEALTH SERVICES
TO ADOPT PERMANENT RULES
The Wisconsin Department of Health Services (department) proposes an order to repeal DHS 95.03 (11), 95.06 (3) and 95.08 (3); and to amend DHS 95.06 (1) (title) and (1) (a), 95.08 (1) and 95.10 (1) (intro.) and (1) (c) of the Wisconsin Administrative Code, relating to custody and control of ch. 980, Stats., patients.
Explanation of agency authority
The department’s authority to promulgate rules is as follows:
Section 46.055, Stats., states: Secure mental health facility for sexually violent persons. The department shall establish and operate a secure mental health facility for the detention, evaluation and institutional care of persons under ch. 980. The superintendents of the secure mental health facility established under s. 46.055, the Wisconsin resource center established under s. 46.056 and any secure mental health unit or facility provided by the department of corrections under s. 980.065 (2) shall adopt proper means to prevent escapes of persons detained or committed to the facility, center or unit under ch. 980 and may adopt proper means to pursue and capture persons detained or committed to the facility, center or unit under ch. 980 who have escaped. In adopting means under this subsection to prevent escape and pursue and capture persons who have escaped, a superintendent may delegate to designated staff members of the facility, center or unit the power to use necessary and appropriate force, as defined by the department by rule, to prevent escapes and capture escaped persons. Except for grievance resolution procedure options specified under s. 457.04 (8) (a), (b), and (c), the department shall promulgate rules to implement this section. The department may contract with the department of corrections for the provision of a secure mental health unit or facility for persons committed under s. 980.06. The department shall operate a secure mental health unit or facility provided by the department of corrections under this subsection and shall promulgate rules governing the custody and discipline of persons placed by the department in the secure mental health unit or facility provided by the department of corrections under this subsection. 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.
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
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.