WISCONSIN DEPARTMENT OF CORRECTIONS
PROPOSED RULE MAKING ORDER
INTRODUCTORY CLAUSE
The statement of scope for this rule was approved by the Governor on April 21, 2022, published as Scope Statement No. SS 036-22 in Register No. 797A1 on May 2, 2022, and approved by Secretary Kevin Carr on July 5, 2022. The Wisconsin Department of Corrections proposes an order to repeal and recreate Chapter DOC 346.
RULE SUMMARY
1. Statutes interpreted:
ss. 301.36, 301.37, 938.209 and 938.22(2)(a), Stats.
2. Statutory authority to promulgate the rule: Section 227.11 (2) (a) – (e): 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 contained in the statutory provision.
(b) Each agency may prescribe forms and procedures in connection with any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute, but this paragraph does not authorize the imposition of a substantive requirement in connection with a form or procedure.
(c) Each agency authorized to exercise discretion in deciding individual cases may formalize the general policies evolving from its decisions by promulgating the policies as rules which the agency shall follow until they are amended or repealed. A rule promulgated in accordance with this paragraph is valid only to the extent that the agency has discretion to base an individual decision on the policy expressed in the rule.
(d) An agency may promulgate rules implementing or interpreting a statute that it will enforce or administer after publication of the statute but prior to the statute's effective date. A rule promulgated under this paragraph may not take effect prior to the effective date of the statute that it implements or interprets.
(e) An agency may not inform a member of the public in writing that a rule is or will be in effect unless the rule has been filed under s. 227.20 or unless the member of the public requests that information. Section 301.36(1): general authority. The department shall investigate and supervise all of the state prisons under s. 302.01, all juvenile correctional facilities, all secured residential care centers for children and youth, and all juvenile detention facilities and familiarize itself with all of the circumstances affecting their management and usefulness. Section 301.37(1): The department shall fix reasonable standards and regulations for the design, construction, repair and maintenance of all houses of correction, reforestation camps maintained under s. 303.07, jails, as defined in s. 302.30, extensions of jails under s. 59.54(14)(g), rehabilitation facilities under s. 59.53(8), lockup facilities, as defined in s. 302.30, work camps under s. 303.10, Huber facilities under s. 303.09, and after consulting with the department of children and families, all juvenile detention facilities and secured residential care centers for children and youth, with respect to their adequacy and fitness for the needs which they are to serve. Section 301.37(1m): The rules promulgated under sub. (1) shall allow a secured residential care center for children and youth to use less restrictive physical security barriers than a Type 1 juvenile correctional facility while ensuring the safety of the public, staff, and youth. The rules promulgated under sub. (1) shall allow a secured residential care center for children and youth to be located in a portion of a juvenile detention facility or a Type 1 juvenile correctional facility. A secured residential care center for children and youth that is located in a portion of a juvenile detention facility or a Type 1 juvenile correctional facility shall provide trauma-informed, evidence-based programming and services as required by the department under s. 938.48(16)(b). Section 301.37(5): The department’s standards and regulations under sub. (1) for juvenile detention facilities apply to private juvenile detention facilities under s. 938.222… Section 938.209(2m)(b): The department of corrections shall promulgate rules establishing minimum requirements for the approval of a municipal lockup facility as a suitable place for holding juveniles in custody and for the operation of such a facility. The rules shall be designed to protect the health, safety, and welfare of the juveniles held in those facilities. Section 938.22(2)(a): …The department of corrections shall promulgate rules establishing minimum requirements for the approval and operation of juvenile detention facilities, secured residential care centers for children and youth, and the juvenile portion of county jails. The plans and rules shall be designed to protect the health, safety, and welfare of the juveniles placed in those facilities. 3. Explanation of agency authority: Per Wisconsin Statute § 301.37(1), the department shall develop reasonable standards and regulations for the design, construction, repair and maintenance of all juvenile detention facilities and secured residential care centers for children and youth, after consulting with the department of children and families. From Wisconsin Statute § 301.36(1), the department also has the authority to investigate and supervise all juvenile correctional facilities, all secured residential care centers for children and youth, and all juvenile detention facilities. Additionally, per Wisconsin Statute § 938.22(2)(a), the Department is required to promulgate rules to establish minimum requirements for the approval and operation of juvenile detention facilities, secured residential care centers for children and youth, and the juvenile portion of county jails. These rules must be designed to protect the health, safety and welfare of the juveniles placed in those facilities. 4. Related statute or rule: Wisconsin Statute Chapter 938 and Wisconsin Administrative Code Chapter 301. 5. Plain language analysis: This rule establishes minimum standards for the approval, design, construction, maintenance, and operations of youth detention facilities and youth portions of county jails and the youth detention portion of a secured residential care center for children and youth. Minimum standards established in this rule include department review and approval of plans and specifications to build or remodel a facility. The rule also establishes standards for the physical environment of new or substantially remodeled youth detention facilities, standards for the physical environment of juvenile detention facilities constructed or substantially remodeled on or after November 1st, 2010 but prior to the promulgation of this rule, and standards for the physical environment of juvenile detention facilities constructed on or after October 1st, 1994 but prior to November 1st, 2010.
This rule also establishes standards for admission and screening of youth, classification of youth upon admission, and release of youth. The rule establishes minimum standards for staffing plans and staff training. Moreover, this rule establishes minimum standards for a variety of operations for these facilities. These include food service and nutrition, health and mental health care, clothing, towels and bedding, commissary services, mail, communication, visitation, publications, religious practices, legal access, education, leisure activities, recreation and exercise, and hygiene and sanitation. This rule also establishes minimum standards for a grievance procedure for youth.
Additionally, this rule establishes minimum standards for security practices of facilities including key control, weapons control, tool control, searches, door and lock inspections, facility repair, and fire safety and emergency preparedness.
Requirements for the observation of youth, administrative confinement, use of force and the use of mechanical restraints are also established in this chapter. The rule establishes further requirements for behavior management of youth including discipline, disciplinary procedures and review of behavior management.
Finally, the rule establishes a variety of standards for the youth portion of a county jail, for the collocation with a secured residential care center for children and youth and the collocation with an adult facility.
6. Summary of, and comparison with, existing or proposed federal regulations that are intended to address the activities to be regulated by the proposed rule: There are no existing or proposed federal regulations that address the activities to be regulated by the proposed rules.
7. Comparison with similar rules in adjacent states:
All adjacent states have similar rules that establish minimum standards for design or construction or both, maintenance and operations of facilities where youth are held.
a. Illinois: Illinois administrative code specifies standards for the operations of its adult, juvenile and community service divisions of the Department of Corrections. Ill. Admin. Code tit. 20. For food service operations, menus shall meet minimum recommended dietary allowances and in juvenile facilities at least four servings of milk shall be offered each day. Ill. Admin Code. tit. 20 § 502.20. Standards for clothing, bedding and linens include that laundry services shall be available on a scheduled weekly basis, clean linen shall be provided on a scheduled weekly basis and bedding suitable for weather and temperature shall be provided. Ill. Admin. Code tit. 20 § 502.210, 502.220 and 502.330. Illinois administrative code also delineates standards for design, construction, maintenance and operations of county juvenile detention facilities. Ill. Admin. Code tit. 20 § 2602. For design and construction of these detention facilities, the Department must approve all remodeling and new construction plans. Ill. Admin. Code tit. § 2602.270. Illinois administrative code also outlines several rules related to the operation of county juvenile detention facilities including food service, clothing, personal hygiene and grooming, sanitation and safety. Ill. Admin. Code tit. § 2602.
b. Iowa: Iowa administrative code specifies physical requirements for jail facilities. The physical requirements specified vary for existing facilities, new and remodeled facilities after June 30, 1984, new and remodeled facilities after September 12, 2001 and for new and remodeled facilities after December 28, 2005. These requirements include standards for several different aspects of the facility including building codes, cells, lighting, mirrors, and storage. 201 IAC 50.4. Additional requirements for jails include standards for cleanliness and hygiene, food service and communication.
Iowa administrative code also specifies standards for nonsecure holds for juveniles in jail facilities. These standards include requirements for the supervision of juveniles in nonsecure holds, medical care and treatment, communications, and safety and sanitation. 201 IAC 50.24.
c. Michigan: Michigan administrative code establishes standards for the administration of county jails or lockups. The administrate code delineates standards for the design and construction of the facility including standards for the proper positioning of exits, compliance with fire safety codes, and physical requirements for detoxification and holding cells. This administrative code also establishes standards for of the operation of county jails or lockups. MCL R 791. This administrate code creates rules for the use of force in these facilities, for dietary allowances and special diets, for sanitation inspections, and for health care. MCL R 791.
d. Minnesota: Minnesota administrative rule establishes standards for the licensing of providers of residential care and treatment or detention or foster care services for children in out-of-home placement. Minn. R. 2960.0100. These rules include physical environment and equipment and physical plant standards. Each facility must provide a physical environment that provides for the comfort, privacy, and dignity of residents, must ensure that food services, storage, housekeeping, laundry and maintenance are operated on a consistent, healthy basis and must provide a classroom atmosphere that is conducive to learning and meets the resident’s special physical, sensory, and emotional needs. Minn. R. 2960.0110.
Additionally, new secure juvenile certified correctional group residential facilities must meet the minimum physical plant construction standards developed by the Department of Corrections. Minn. R. 2960.0220(1). New construction of nonsecure residential facilities must meet state and local building codes and the physical plant requirements in Minn. R. 2960.0120. Correctional group residential construction plans and schematics must be reviewed and approved by the Department of Corrections before the license holder allows bids for construction. Minn. R. 2960.0220(2).
Minnesota administrative rule also establishes standards of the operations of these facilities. For example, administrative rule establishes that residents have a right to daily bathing or showering and reasonable use of materials, including culturally specific appropriate skin care and hair care products or any special assistance necessary to maintain an acceptable level of personal hygiene. Minn. R. 2960.0050. Residents also have a right to adequate medical care, a right to nutritious and sufficient meals and sufficient clothing and housing and a right to live in clean, safe surroundings. Minn. R. 2900.0050(1).
8. Summary of the factual data and analytical methodologies: The Department of Corrections has determined that the rule will not have a significant economic impact on a substantial number of small businesses since the rule does not regulate small businesses as that term is defined in s. 227.114, Stats. 9. Analysis and supporting documents used to determine effect on small business or in preparation of economic impact analysis: Not applicable.
10. Effect on small businesses: Not applicable.
