WISCONSIN DEPARTMENTOF CORRECTIONS
PROPOSED RULEMAKING ORDER
C. Explanation of agency authority: The department of corrections is responsible for the supervision of all inmates, including their
D. Related statute or rule: Chapters DOC 302, 304, 306, 308, 309, 310, 311, 313, 314, 316, 324, 325, 326, and 327, relating to the supervision of inmates.
E. Plain language analysis:
1. Reorganizes and updates the rule chapter.
2. Repeals the following definitions: Administrator, appropriate reviewing authority, calendar day, civil rights grievance, director, emergency, malicious injury, reprisal, significant issue, and working days.
3. Amend the following definitions: corrections complaint examiner, institution complaint examiner, and moot. (Section DOC 310.03.) 4. Creates the following definitions: calendar year, complaint record, days, division, employee, good cause, institution, PREA, reviewing authority, sexual abuse, and staff member. (Section DOC 310.03.)
5. Repeals the following subchapters: Communication of procedures, Organization of inmate complaint review system, Group complaints, Records, Suspension of provisions of this chapter and Appendix.
6. Creates the following subchapters: PREA, Filing of complaint appeal and Complaint processing following release.
7. Defines all filing deadlines as calendar days for consistency throughout the chapter.
8. Creates language to forbid the department from retaliation of inmates using the ICRS.
9. Updates the chapter to clarify the filing of complaints by limiting the annual number of complaints an inmate can file to 25 unless certain circumstances apply and limits the original complain to 500 words on no more than two pages.
10. Creates a subsection to address requirements of the Prison Rape Elimination Act (PREA).
11. Creates language to clarify the appeals process. The appeal process must be written in 500 words on no less than two pages. Amends the appeal filing time frame from 10 calendar days to 14 days, repeals the 5 working days to issue a written receipt, amends the time frame for the CCE to make a recommendation to the Secretary from 35 working days to 45 days, amends the time frame for an inmate to file an appeal if he doesn’t hear back for the ICE from 30 working days to 45 days
12. Creates language in the processing section to require date stamping of complaints, allows the inmate extra time to re-file returned complaints, amends the time frame for the ICE to acknowledge receiving the complaint in writing from 5 working days to 10 calendar days, creates a 10 day time frame for the ICE to return complaints and amends the ICE time frame to make a recommendation to the reviewing authority or reject the complaint from 20 working days to 30 days.
13. Repeals the ability to dismiss or affirm complaint with modifications. Complaint can now be dismissed or affirmed in whole or part, amends the time frame for the reviewing authority to make a decision from 10 working days to 15 days and amends the time frame from 30 working days to 45 days an inmate must wait to appeal if he doesn’t get a response.
14. Repeals the ability for the Secretary to adopt the CCE’s recommendation with modifications, amends the time frame for the Secretary to make a decision from 10 working days to 45 days and amends the wait time for the inmate to proceed if he doesn’t hear back from 45 working days to 90 days.
15. Creates language to allow complaints to be processed under this chapter if the inmate is released.
16. Amends time frame for the inmate to inform decision maker the implementation of an affirmed complaint hasn’t been done from 30 working days to 60 days.
17. Creates language to allow the ICE to access protected health information in order to investigate.
18. Corrected references to DOC 310 in other DOC chapters.
F. Summary of and comparison with existing or proposed federal regulations that are intended to address the activities to be regulated by the proposed rule:
The Federal Regulations for the Prison Rape Elimination Act (PREA) National Standards require that departments provided inmates with multiple internal ways to privately report sexual abuse and sexual harassment, retaliation for reporting such incidents, and staff neglect or violation of responsibilities that may have contributed to such incident. (28 C.F.R. Part 115.51(a)) The Federal PREA Regulations provide that staff shall accept reports made verbally, in writing, anonymously, and from third parties and shall promptly document any verbal reports. (28 C.F.R. Part 115.51(c)) Wisconsin rules permit inmates or third parties to file a complaint using the inmate complaint review system or may use alternative methods of filing, including submission of the complaint directly to the warden. The PREA regulations require that the department shall not impose a time limit on when an inmate may submit a grievance regarding an allegation of sexual abuse. (28 C.F.R. Part 115.52(b)(1)) The department may apply otherwise-applicable time limits to any portion of a grievance that does not allege an incident of sexual abuse. (28 C.F.R. Part 115.52(b)(1)) Wisconsin has a similar rule. The PREA regulations require that the department shall not require an inmate to use any informal grievance process, or to otherwise attempt to resolve with staff, an alleged incident of sexual abuse. (28 C.F.R. Part 115.52(b)(1)) An inmate who alleges sexual assault may submit a grievance without submitting it to a staff member who is a subject in the complaint first. (28 C.F.R. Part 115.52(b)(1)) Wisconsin has a similar rule. The PREA regulations require that third parties, including fellow inmates, staff members, family members, attorneys and outside advocates shall be permitted to assist inmates in filing request for administrative remedies relating to allegations of sexual abuse, and shall be permitted to file such requests on behalf of inmates. (28 C.F.R. Part 115.52(e)(1)) Wisconsin has a similar rule. The PREA regulations require that the department shall establish procedures for filing of an emergency grievance alleging that an inmate is subject to a substantial risk of imminent sexual abuse. (28 C.F.R. Part 115.52(f)(1)) Wisconsin has a similar rule. Wisconsin rules permit inmates to contact any staff member who is not the subject of the allegation for immediate corrective action. The PREA regulations require that the department may discipline an inmate for filing a grievance related to alleged sexual abuse only where the agency demonstrates that the inmate filed the grievance in bad faith. (28 C.F.R. Part 115.52(g)) Wisconsin has a similar rule. The warden may discipline an inmate for filing a complaint related to alleged sexual abuse only where the warden demonstrates that the inmate filed the complaint in bad faith. The Department of Justice provides informative standards that may be adopted or applied by departments to permit inmate grievance procedures within the institution that affect them personally. (28 C.F.R. Part 40.5) The standards provide that a grievance procedure shall afford a successful grievant a meaningful remedy. (28 C.F.R. 40.6) The regulations provide that an institution may require an inmate to attempt informal resolution before the inmate files a grievance. (28 C.F.R. 40.7(a)). Wisconsin rules have a similar rule.