ORDER OF THE
DEPARTMENT OF HEALTH SERVICES
TO ADOPT PERMANENT RULES
The Wisconsin Department of Health Services 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
Pursuant to ss. 46.055, 46.058 (2m), and 980.065 (2), Stats., the Legislature directed the Department to promulgate rules governing the operation of secure mental health facilities for the detention and care of persons under ch. 980, Stats., including promulgation of rules governing the custody and discipline of persons placed in the facilities. The proposed rules are necessary to effectuate the purposes of the statutes listed in the “statute interpreted” section, and also necessary to comply with s. 227.11 (2) (a), Stats.
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 dictates the use of a systematic, less adaptable progression of force based on the level of threat facing staff to guide them in the use of force during a disturbance or emergency. The progression of force stages under this model include staff presence, dialogue, empty-hand control, incapacitating devices, and lethal force.
This model has been replaced with “Intervention Options”, rendering the current rule out-of-date and at odds with existing training practices.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, more adaptable approach to confronting threats, giving staff more discretion on selecting which alternative of force to use based on the specific level of threat. 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 Intervention Options model uses the term “control alternatives” to include measures to overcome passive resistance, active resistance or their threats from facility detainees. The model uses the term “protective alternatives” to include measures to overcome continued resistance, assaultive behavior or their threats. Removing explicit reference to “empty hand control” and “incapacitation devices” (such as electronics, chemical agents, batons and impact munitions) will not remove the use of either option. Instead, both types of force are encompassed within the more broad Intervention Options categories of control alternatives and protective alternatives.
The Department also proposes to change the circumstances under which escorted leaves may occur. 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 Admin. Code tit. 59 § 299.350 of the states: