Register 689B: Rule-Making Notices (Hearing Notices)

Wisconsin Administrative Register No. 689, 5/31/2013

Rule-Making Notices

Notice of Hearing

Corrections

NOTICE IS HEREBY GIVEN that pursuant to section 227.11 (2), Stats., and interpreting sections 301.03 (5), 301.33, 301.36, 301.37, 302.30, 302.31, 302.315, 302.36, 302.365, 302.37, 302.38, 302.383, 302.388, 302.39, 302.40, 302.41, and 302.42, Stats., the Department of Corrections will hold public hearings to consider the repeal and recreation of Chapter DOC 350, relating to jails.

Hearing Information

Date: Tuesday, June 25, 2013
Time: 10:00 a.m.
Location: Conference Room 45
State Office Building
819 North 6th Street
Milwaukee, Wisconsin

Date: Wednesday, June 26, 2013
Time: 10:00 a.m.
Location: Portage County Courthouse Annex
1462 Strongs Avenue
Stevens Point, Wisconsin

The public hearing sites are accessible to people with disabilities. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please contact Kathryn Anderson, DOC, P.O. Box 7925, Madison, WI 53707-7925, email kathryn.anderson@wisconsin.gov, telephone (608) 240-5049 by June 21, 2013.

Availability of Rules and Submitting Comments

Interested persons are invited to appear at the hearing and present comments on the proposed rules. Persons making oral presentations are requested to submit their comments in writing. Written comments on the proposed rule will be accepted into the record and receive the same consideration as testimony presented at the hearing if they are received by Friday, July 5, 2013. Written comments should be addressed to: Kathryn R. Anderson, DOC, P.O. Box 7925, Madison, WI 53707-7925, or by email kathryn.anderson@wisconsin.gov.

The proposed rule and an analysis of the proposed rule are available on the Internet at the Department of Corrections Web site at http://doc.wi.gov. Paper copies may be obtained without cost from Kathryn R. Anderson, at the Department of Corrections, P.O. Box 7925, Madison, WI 53707-7925, or by email at kathryn.anderson@wisconsin.gov, or by telephone (608) 240-5049. Copies will also be available at the public hearing.

Rule Summary Prepared by the Department of Corrections

Statutes interpreted

Sections 301.03 (5), 301.33, 301.36, 301.37, 302.30, 302.31, 302.315, 302.36, 302.365, 302.37, 302.38, 302.383, 302.388, 302.39, 302.40, 302.41, and 302.42, Stats.

Statutory authority to promulgate the rule

Sections 227.11 (2), 301.03 (5), 301.36, 301.37, and 302.365 (1), Stats.

Explanation of agency authority

The Department of Corrections is responsible for establishing standards for and inspecting jails.

Related statute or rule

Chapter DOC 346, secure detention for juveniles, and ch. DOC 348, Huber facilities, Wis. Adm. Code.

Plain language analysis

The rule:

1. Reorganizes and renumbers the existing ch. DOC 350. Specifically, creates administrative rule provisions for the following: Food service, Inmate classification, Use of restraints, Grievance process, Legal access, Indigence, and Programs and services.

2. Expands existing inmate health care provisions listed in current code as “Health care" and is now listed in three sections: “Inmate health screening", Inmate health care" and “Health care policy."

3. Changes the title of “Physical environment for new or substantially remodeled jails" in current code to “Physical environment for new or substantially remodeled jails on or after March 1, 1990, to (date of new rule)."

4. Changes the title “Physical environment of existing jails" in current code to “Physical environment of jails constructed before March 1, 1990."

5. Section DOC 350.01 Purpose and authority — Amends the statement to include operation of jails and houses of correction.

6. Section DOC 350.03 Definitions — Creates definitions for “court holding", “exercise space", “natural lighting", and “unencumbered space".

7. Removes the definitions for “division" and “special needs inmates" since they are no longer used. “Division" referred to the division of probation and parole, and has been replaced with “Department."

8. Amends the definitions for “dayroom", “health screening form", “holding room", “multipurpose room", and “privileged mail."

9. Section DOC 350.04 Construction plans — Clarifies the procedure for the submission and approval of construction plans.

10. Section DOC 350.05 Physical environment for new or substantially remodeled jails — Alphabetizes the equipment and materials list, adds “skylights" and “sprinkler heads" to the list, and changes “contraband proof sills" to “contraband proof threshold."

11. Changes the minimum floor area of cells used for single occupancy to at least 35 sq. ft. of unencumbered space. The current rule specifies that a single occupancy cell shall have a minimum floor area of at least 54 sq. ft.

12. Adds the requirement that, from the effective date of the updated ch. DOC 350, double cells have a floor area of at least 25 sq. ft. of unencumbered space per occupant, that the distance between the floor and ceiling may not be less than 8 ft., and the distance between opposite walls may not be less than 6 ft. The current code requires that for jails constructed or substantially remodeled on or after March 1, 1990 to be used for double occupancy, a cell shall have a floor area of at least 70 square feet.

13. Adds the requirement to provide occupants of dayrooms, dormitories and cellblocks access to natural light.

14. Adds the requirement that dayrooms provide a minimum of 35 sq. ft. per inmate and that dayrooms may not be used for sleeping purposes.

15. Removes the reference to dormitory dayrooms under s. DOC 350.05 (4) since they are referenced in s. DOC 350.05 (6) (b).

16. Clarifies that receiving cells shall have a minimum floor area of at least 35 sq. ft. of unencumbered space. The current rule specifies that a receiving cell shall have a minimum floor area of at least 54 sq. ft.

17. Removes the wording “and properly segregated as required under s. 302.36, Stats., from s. DOC 350.05 (6) (a).

18. Amends the requirement that each dormitory shall have a minimum floor area of 35 sq. ft. per occupant, excluding the toilet and shower area to state that each dormitory shall have a minimum floor area of 35 sq. ft. of unencumbered space per occupant for sleeping purposes.

19. Adds the requirement that each dormitory shall have a minimum floor area of 35 sq. ft. for the purpose of a dayroom and that each dayroom shall have detention strength tables and seating for the number of occupants.

20. Removes the wording “A secured area" for personal property shall be provided for each occupant of each dormitory to read “An area" for personal property shall be provided for each occupant of a dormitory.

21. Adds the requirement that washbasins in holding rooms have hot and cold running water.

22. Creates a provision for court holding, s. DOC 350.05 (8), which requires that court holding rooms: shall only be used for courtroom purposes, may not be used as a cell, dormitory or receiving cell, supervision is subject to the requirements of s. DOC 350.18 and ss. 302.41 and 302.42, Stats., may be designed and used for multiple occupancy for inmates who are properly segregated under ss. 938.209 and 302.36, Stats., shall contain detention strength, rigidly constructed seats or benches bracketed to the wall or bolted to the floor or seats of masonry construction of a similar strength, shall be provided a detention strength, institution-type washbasin and toilet, and shall have a floor area of at least 50 sq. ft. with an additional 10 sq. ft. for each occupancy above five.

23. Amends the provision for a “multipurpose room for recreation, physical exercise and congregate assembly other than visiting" to read “multipurpose rooms for programming, education or congregate assembly other than visiting". Requires that “there shall be a minimum of one multipurpose room per 100 inmates based upon approved rated capacity and that each multipurpose room shall have a minimum floor area of 300 sq. ft." The current code only states that “the multipurpose room shall have a minimum floor area of 300 sq. ft."

24. Creates the requirement for exercise space.

25. Creates the requirement that “interior walls between cells and housing units are to be constructed tight to the structure."

26. Clarifies ceiling construction requirements regarding detention strength materials.

27. Changes the word “sill" to “detention strength framing and a threshold" in relation to exterior exit doors in s. DOC 350.05 (15) (a).

28. Clarifies s. DOC 350.05 (15) (c) by changing “except for" to “other than" and separating into (c) and (d).

29. Section DOC 350.06 Physical environment for new or substantially remodeled jails on or after March 1, 1990 to (date of new rule) — Lists the provision for a cell used for double occupancy in (3) (d). (Moved to this section from s. DOC 350.07 Double Celling in current code.)

30. Section DOC 350.07 “Physical environment of existing jails" in current code amended to read “Physical environment of jails constructed before March 1, 1990" to specify code requirements jails constructed before March 1, 1990.

31. Section DOC 350.08 Variance — Changes section title from “Exceptions" to “Variance. Adds that any variance granted shall not set automatic precedent.

32. Section DOC 350.09 Policy and procedure manual — Removes requirement to consult with outside sources to create the policies and that the policies should reference provider agreements.

33. Section DOC 350.10 Records and Reporting — Removes reference to “Jail Log". Changes the wording “records of inmates 18 years of age or older" to “adult records." Adds to the reporting requirements under sub. (3).

34. DOC 350.11 Food service is a new section — Creates the requirement that the jail shall have policies and procedures relating to food service.

35. Creates provisions for food service requirements: nutritious and quality food provided for all inmates, three provided daily, two of which are hot (variations may be allowed based on weekend and holiday food service demands provided basic nutritional goals are met); annual menu review by a qualified nutritionist or dietician; annual inspection of all full-production and service kitchens by a qualified, independent outside source documenting food service facility meets health and safety codes; internal monthly inspection of food service area; maintenance and inspection of kitchen area and all equipment; maintenance of food temperatures; storage of food items; special diets; religious diets; attire and hygiene requirements for food service area workers; persons known to be infected with a communicable disease may not be employed or work as a food handler in a facility; orientation, training and supervision of inmate kitchen workers; meals are covered during transit to and/or within the facility; kitchen food storage and dishwashing equipment temperatures; covered garbage containers are emptied daily and kept clean; cleaning agents are stored separately from food service items; and a sharps/utensil/tool control procedure.

36. Section DOC 350.12 Sanitation and hygiene — Creates the requirement that the jail shall have policies and procedures relating to sanitation and hygiene.

37. Removes statement that jails shall meet the requirements of ch. DHS 190.

38. Adds that a facility is required to be clean and in good repair.

39. Adds the requirement that blankets be laundered monthly as well as before reissue. Removes language regarding timeframe for blankets to be laundered when used with or without sheets.

40. Adds the requirement for mattresses to be cleaned and sanitized before reissue.

41. Removes requirement for mattresses to be at least 3 inches thick and now states “mattresses shall be of proper size to fit the bed".

42. Adds the requirement that footwear shall be cleaned and sanitized before reissue.

43. Adds the requirement to establish a laundry schedule to meet daily needs and that all issued and allowed clothing items are laundered twice weekly.

44. Adds the requirement that vermin and pests are controlled with an effective, documented program.

45. Removes the wording that inmates “upon request" will be provided towels and toilet articles after 24 hours. Language now reads that “after 24 hours, inmates shall be provided with toilet articles."

46. Clarifies that basic feminine hygiene materials shall be provided “for females".

47. Adds the requirement that inmates are provided cleaning materials daily.

48. Adds the requirements that tables for common use and meals, and door traps for passing meals or other items, shall be kept sanitized.

49. Adds the requirement that safety and sanitation inspections of the jail are completed and documented at a minimum of once monthly.

50. Adds the requirement that common use grooming tools are disinfected and cleaned before reissue and are stored in a secure area.

51. Adds the requirement that property storage containers shall be sanitized before reuse.

52. Adds the requirement that trash is removed daily from all dayrooms.

53. Adds the requirement for a provision to dispose of hazardous waste per government regulations.

54. Section DOC 350.13 Inmate health screening — Adds requirements for referrals to medical, mental or supervisory staff, review of the health screening form, and completion of a health appraisal.

55. Section DOC 350.14 Inmate health care — Adds the requirement that there “be sufficient equipment, material, space and supplies for the performance of health care services in a confidential manner."

56. Adds the requirement that “nursing care shall be provided in accordance with the standards of practice established by the board of nursing, Ch. N 6" and that “health care staff shall be in compliance with state and federal licensure certification and registration."

57. Adds the requirement that “officers shall receive documented annual training on health care policies and procedures, medications, and health screening at the time of admission".

58. Section DOC 350.15 Health care policy — Clarifies the policy and procedure requirement to list names, addresses and telephone numbers of health care providers.

59. Adds the requirement for provision for inmates with chronic medical conditions.

60. Amends the policy and procedure requirement for the procedure for processing inmate medical requests to include “on a daily basis" and removes “including written disposition".

61. Clarifies provision of special diet — now states “if ordered by a qualified health care professional". Current code states “if ordered by a physician."

62. Adds the requirement to include pregnancy management.

63. Adds the requirement to include use of the Health Transfer Summary form as stipulated in s. 302.388 (2), Stats.

64. Adds that the policy and procedure requirement for communicable disease control also include infection control.

65. Adds the requirement to include a provision for handling bio hazardous waste and decontaminating medical and dental equipment.

66. Adds the requirement to include a provision for detoxification and management of intoxicated inmates.

67. Section DOC 350.16 Control and administration of medications — Adds the requirement that a qualified health care professional shall prescribe medications and order treatments.

68. Clarifies the requirement that jail staff that deliver medications be trained and receive annual documented training.

69. Added the requirement that a health care professional monitor the inmate in accordance with requirements of s. 302.384, Stats., when medication is refused.

70. Under s. DOC 350.17 Suicide prevention — Adds requirements to obtain documented information from the arresting or transporting agency to assess an inmate's potential for suicide or self-harm and screening of inmates that includes interview items and staff observation related to potential suicide risk.

71. Creates the requirement for the provision of immediate notification to designated supervisory staff if an inmate is identified as a suicide risk.

72. Clarifies the requirement for “identification of housing areas for inmates who are suicide risks." New language states “Designation of housing areas and security precautions for inmates who are placed on suicide watch." Changes all wording of “suicide risk" to “suicide watch."

73. Clarifies language regarding supervision of inmates on suicide watch to include a description of monitoring procedures.

74. Clarifies language regarding persons who may asses an inmate's level of suicide risk to reflect that they must be trained and identified.

75. Creates the requirement for provision to notify qualified mental health professionals of potentially suicidal inmates within 12 hours of placement on suicide watch and provision for an assessment by a qualified mental health professional to be completed as soon as practicable.

76. Creates the requirement to identify qualified mental health professionals who are authorized to remove an inmate from a suicide watch status after an on-site face-to-face assessment.

77. Clarifies the requirement for communication between health care and jail personnel regarding the status of an inmate who is on suicide watch to include the frequency of the communication.

78. Clarifies the language “intervention of a suicide in progress, including first aid measures" that now reads “intervention protocol during an apparent suicide attempt, including life-sustaining measures."

79. Adds to the requirement of documentation of actions and decisions regarding inmates who are suicide risks which now includes: individual initiating the suicide watch; date and time watch was initiated; reason watch was initiated; name of supervisor contacted; date and time supervisor contacted; name, date and time of referral to mental health professional; and name, date, time and signature of mental health professional removing inmate from a suicide watch.

80. Creates the requirement for implementation of 2 hours of annual documented staff training regarding suicide prevention and identification of risk factors.

81. Creates the requirement for provision of access to debriefing and support services.

82. Creates the requirement for provision of an implementation of an operational review following a suicide or significant suicide attempt.

83. Section DOC 350.18 Security — Adds the requirement for a jail to have policies and procedures relating to jail security.

84. Creates timeframes for inmate supervision at frequent and irregular intervals — not to exceed 60 minutes for inmates housed in general population and 15 minutes for inmates housed on suicide watch.

85. Adds that a video monitoring system may be used to supplement but not replace physical observations.

86. Creates the requirement to include a description of procedures for conducting and documenting facility and area searches, inmate pat down, strip, and body cavity searches.

87. Clarifies monthly inspections of locks and doors. Current rule states “the sheriff shall ensure that monthly inspections are made to determine if cell and fire escape locks and doors are in good working order." The updated rule states “Monthly inspections shall be made to determine if all jail doors and locks within and including the secure perimeter of the facility are in good working order."

88. Amends the key control provision to include: “all issued keys are inventoried and accounted for at shift change, all keys must be stored in a secure area and accessible in the event of any emergency, inmates are not permitted to handle or utilize jail keys." Removes the requirement that “there shall be at least 3 complete sets of jail and fire escape keys, one set in use, one set stored in a safe place which is accessible only to jail personnel for use in an emergency, and one set stored in a secure place outside the jail."

89. Creates the requirement for weapons control that includes: “introduction, availability, control, inventory, storage and use of firearms, chemical agents, electronic control devices, or other related security devices and specification of the level of authority required for their access and use."

90. Creates the requirement for tool/sharps control that includes: “introduction, availability, control, inventory, storage and use of tools/sharps within the facility".

91. Section DOC 350.19 Fire safety — Adds the requirement that the jail shall have policies and procedures relating to fire safety that also include local fire department recommendations.

92. Adds the requirement that the facility conforms to applicable federal, state, and/or local fire safety codes.

93. Creates the requirement that documented fire safety training shall be practiced or simulated by all jail staff at least once every 12 months and be documented.

94. Amends requirement for facility inspection by the local fire department “at least once every 6 months" to “at least once every 12 months, and a record thereof shall be maintained."

95. Creates the requirement to complete and document monthly inspections of the facility to ensure compliance with safety and fire prevention standards.

96. Creates the requirement that, after the date of the new rule, sprinkler heads accessible to inmates not under direct supervision must be tamper and suicide resistant.

97. Section DOC 350.20 Double celling — Adds the requirement that the jail shall have policies and procedures for double celling.

98. Clarifies language regarding single occupancy cell requirements in a jail. New rule states “for male and female housing areas, at least one cell or 15% of the jail's total number of cells, whichever is greater, shall be maintained for single occupancy". Current rule's language is wordy and confusing.

99. Removes requirements listed for physical observation under double celling. Physical observation provision is now found under s. DOC 350.18 Security.

100. Removes references to requirements for dayrooms under s. DOC 350.20. These provisions are now found under the Physical environment sections.

101. Section DOC 350.21 Inmate classification is a new section — Creates a requirement for the sheriff to establish and maintain an objective prisoner classification to determine prisoner custody status, housing assignment and develop eligibility criteria for prisoner participation in available work assignments, programs and community service projects s. 302.36, Stats.

102. Creates a requirement for the jail to have policies and procedures relating to inmate classification, including the following components: description of the objective prisoner classification system, including the identification and training of staff authorized to classify prisoners, initial classification and reclassification procedures and prisoner appeal process; eligibility criteria for prisoner participation in available work assignments, program, and community service projects; and review of prisoner classification decisions.

103. Section DOC 350.22 — Adds the requirement for the jail to have policies and procedures for the use of force.

104. Adds to the requirement that staff members who use force to control an inmate submit a written report that the report must be “submitted by the end of the shift unless otherwise authorized by the sheriff or designee."

105. Section DOC 350.23 Use of restraints is a new section — Creates the requirement for jail to have policies and procedures for the use of restraints that include the following components: restraint devices are never used as punishment and are not applied longer than necessary, and, when an inmate is mechanically restrained for non-routine purposes, a written report must be completed by the end of the shift unless otherwise authorized by the sheriff or designee. Documentation shall include the reason for and duration of use and corresponding wellness checks.

106. Section DOC 350.24 Discipline — Adds the requirement for the jail to have policies and procedures outlining inmate discipline and due process.

107. Amends the language found in current code by replacing the terms “penalty" or “penalties" with the terms “discipline" or “disciplines" and replaces the term “punitive" with “disciplinary."

108. Removes listing of required elements to be included in staff member report on an inmate committing a major violation.

109. Adds the timeframe requirement for a due process hearing to be held within seven calendar days.

110. Adds that “The hearing officer or committee may consider the inmate's mental illness, developmental disability or other emotional or mental disability as a mitigating factor in imposing discipline."

111. Section DOC 350.25 Administrative confinement — Adds the requirement for the jail to have policies and procedures outlining the administrative confinement process.

112. Changes the timeframe for review of an inmate's progress in administrative confinement from “periodically" to “at least once every seven days."

113. Section DOC 350.26 Grievance process is a new section — Creates the requirement for the jail to have policies and procedures relating to an inmate grievance process.

114. Section DOC 350.27 Legal access is a new section — Creates the requirements for a jail to have policies and procedures that address inmates' access to the courts, their attorneys and legal materials.

115. Section DOC 350.28 Indigence is a new section — Creates the requirement for a jail to have policies and procedures to address indigence.

116. Section DOC 350.29 Mail — Adds the requirement for provision for notifying inmates when outgoing or incoming mail is withheld.

117. Section DOC 350.30 Visitation — Adds the requirement that attorney visits shall be allowed during reasonable hours, as long as security and daily routine are not unduly interrupted.

118. Creates the requirement for a jail to have policies and procedures related to search of inmates before and after each visit.

119. Section DOC 350.31 Programs and services is a new section — Creates the requirement for the jail to have policies and procedures relating to the provision of inmate programs and services.

120. Section DOC 350.32 Religious programming — Creates the requirement that inmates shall have the opportunity to participate in practices of their religious faith consistent with existing state and federal statutes.

121. Adds the requirement to include provision for conducting criminal background checks on members of a religious organization and clergy and provision of orientation and training on facility operations.

122. Section DOC 350.33 Recreation — Adds the requirement that, when and where available, at least one hour of daily exercise and recreation is outside the cell or outdoors.

123. Section DOC 350.34 Publications — Changed the title of this section from “Reading Materials" to “Publications."

124. Section DOC 350.35 Canteen — Adds the requirement that canteen shall be made available to eligible inmates and that access to canteen may be restricted by the facility based upon inmate classification or status.

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 federal regulations which address the development, implementation, or monitoring of jail standards by the State of Wisconsin. However, the US Department of Justice recently issued standards implementing the Prison Rape Elimination Act of 2003 (PREA), 42 U.S.C. 15601, et seq. Those standards regulate a number of areas which are also covered by ch. DOC 350, for example, housing in jails of minors who are arrested, charged or convicted of crimes as an adult. The federal standards go into effect on August 20, 2013. The department is reviewing the impact of the new federal standards on ch. DOC 350.

Comparison of similar rules in adjacent states (Illinois, Iowa, Michigan and Minnesota)

The department does not note every difference between the department's proposal and an adjacent state's code but only those of interest or significance. In most cases there are no significant differences between the requirements of the adjacent states and those of Wisconsin as proposed.

1. Illinois

Medical/Dental: Wisconsin statutes do not specifically require the provision of dental services to inmates in county jails. Both states include the provision of emergency dental care to inmates in their regulations. (IL: 20 ILAC s. 701.90 (b) 1. A.; WI: DOC 350.15 (5))

Inmate supervision: Illinois defines direct and indirect supervision. (20 ILAC s. 701.130 (a) (1) A & B) Illinois requires personal observation of inmates at least once every 30 minutes. The observation does not include observation by a monitoring device. (20 ILAC s. 701.130 (a) (2)) Wisconsin requires physical observation of each inmate who is in general population every 60 minutes at irregular intervals and each inmate who is on suicide watch every 15 minutes. (S. DOC 350.18 (1)) In addition, Illinois requires that dormitories housing more than 25 inmates must provide personal continuous observation. (20 ILAC s. 701.130 (a) (3)) Wisconsin has no similar provision. Illinois requires that special needs inmates are observed more frequently than the 30 minute standard. (20 ILAC s. 701.140 (c) (8)) Wisconsin has no similar provision.

Key control and use: Illinois requires full set of jail keys, separate from those in use, stored in a safe place. (20 ILAC s. 701.140 (h) (3)) Wisconsin requires that all keys must be stored in a secure area and accessible in the event of an emergency. (s. DOC 350.18 (8) (b))

Door and lock inspections: Illinois requires the regular and frequent inspection of locks, doors, bars, etc. (20 ILAC s. 701.140 (c) (1)) Wisconsin requires monthly inspections to determine if all jail doors and locks are in good working order. (s. DOC 350.18 (7))

Inmate counts: Illinois requires that counts be made and recorded at least three times daily. (20 ILAC s. 701.140 (g)) Wisconsin requires that the jail develop policies and procedures to establish a system by which inmate count occurs and that a count occur at least three times daily with a minimum of one count per shift. (s. DOC 350.18 (4))

Fire safety: Illinois requires that there be a fire extinguisher installed in the basement and on each floor for each 5,000 square feet of floor area. (20 ILAC s. 701.150 (a) (1)) Wisconsin code does not have a similar provision. However, Wisconsin requires that the jail conforms to applicable federal, state, and local fire safety codes, develops a fire safety policy in accordance with the local fire department recommendations, establishes an evacuation plan, provide annual fire safety training, documents an annual fire inspection by the local fire department and performs monthly safety inspections which are also documented. (s. DOC 350.19)

Use of restraints/use of force: If restraints are used, staff must prepare a written report and the inmate's situation must be reviewed at least every 24 hours. (20 ILAC s. 701.160 (j) (intro) and (2)) Wisconsin does not specify a timeframe for reviewing an inmate's situation; however, the proposed code prohibits the use of restraints for longer than necessary. (s. DOC 350.23 (1))

Inmate discipline: Illinois requires a written report of the infraction be submitted to the jail administrator within 72 hours of the incident and prohibits the commencement of a disciplinary proceeding more than 8 days after the incident occurred or was discovered unless the inmate was unavailable. (20 ILAC s. 701.160 (a) (2)) The proposed Wisconsin code differentiates between major and minor violations and establishes different due process procedures for the two levels of violations. (s. DOC 350.24) For major violations, a written report must be submitted within 24 hours and the due process hearing held within seven calendar days unless waived. (s. DOC 350.24 (3) (b) and (d)) Illinois prohibits the imposition of penalty of more than 30 days of good behavior allowance for any one infraction. (20 ILAC s. 701.160 (a) (4) (F)) Illinois limits the segregation time which can be imposed for a minor violation to 72 hours but does not have a limit for a major violation. Wisconsin does not have a similar provision.

Administrative confinement: Illinois code does not address this issue.

Reporting: Illinois requires each jail to provide monthly population reports. (20 ILAC s. 701.30 (b)) Wisconsin requires a jail to maintain a register of inmates with similar information but not submit the register in report form on a monthly basis. (s. DOC 350.10 (1))

Admission procedures, orientation, release procedures: Illinois code has separate chapters to address each of these issues. (20 ILAC ch. 701.40, 701.50, 701.60) In addition, Illinois code has separate chapters on a number of additional issues, for example, food service, sanitation, inmate work, mail, telephone, visiting, programming, education, library, religious services, commissary, and recreation and leisure time. ((20 ILAC s. 701.110, 701.120, 701.170, 701.180, 701.190, 701.200, 701.210, 701.220, 701.230, 701.240, 701.250, and 701.260) Wisconsin code does not contain the specific requirements or mandates but does require each jail to develop a policy and procedure manual to address these issues. (For example, s. DOC 350.11 (food service), 350.12 (sanitation and hygiene), 350.29 (mail), 350.30 (visitation), 350.31 (programs and services), 350.27 (legal access), 350.32 (religious programming), 350.35 (canteen), and 350.33 (recreation) which addresses these types of issues.

2. Iowa

Medical/Dental: Wisconsin statutes do not specifically require the provision of dental services to inmates in county jails. Iowa provides necessary dental care. (IAC 201-50.15 (intro)) Iowa requires that an inmate affected by a chemical control agent must be offered a medical examination and appropriate treatment as soon as reasonable. (IAC 201-50.15 (5)) Wisconsin has no similar requirement. Iowa also provides in its rules that inmates are responsible for the cost of medical services and products. (IAC 201-50.15 (intro)) Section 302.38 (1), (2) & (4), Wis. Stats., provides similarly that an inmate may remain responsible for the cost of services and care whether provided in-house or at a hospital or clinic. Iowa also prohibits the provision of cosmetic or elective procedures. (IAC 201-50.15 (intro)) Section 302.38 (1), Wis. Stats., provides that an inmate shall receive appropriate needed medical care and treatment. Chapter DOC 350 does not address this issue.

Inmate supervision: Iowa requires 24 hour supervision of all inmates. (IAC 201-50.13 (2) a. (1)) Wisconsin statute requires that staff be present in a jail at all times there is a prisoner present in the jail. (s. 302.42, Stats.) Iowa requires that staff is either present in the confinement portion of the jail or able to hear inmates in a life-threatening or emergency situation. If staff is not present, a calling device to summon help will be provided. (IAC 201-50.13 (2) a. (2)) Iowa requires personal observation of individual inmates every hour. It also requires the personal observation of special needs inmates every 30 minutes. (IAC 201-50.13 (2) a. (3)) Both states permit the use of video monitoring but only as a supplement to physical observations, not a replacement. (IAC 201-50.13 (2) a. (3); s. DOC 350.18 (2))

Key control and use: Iowa requires that the jail administrator identifies the person who may have access to keys. (IAC 201-50.13 (2) d.) Wisconsin does not have a similar provision but requires an inventory of jail keys at every shift change. (s. DOC 350.18 (8) (a))

Door and lock inspections: Iowa code does not address this issue.

Inmate counts: Iowa code does not address this issue.

Fire safety: Iowa prohibits a jail from being occupied if a fire certificate issued by the state fire marshal or qualified local fire prevention authority has not issued a fire certificate within the last 18 months. (IAC 201-50.9 (2)) Wisconsin requires inspection every 12 months. (s. DOC 350.19 (5)) Iowa requires that there are fire extinguishers for every 3000 square feet of floor area, that all exits be equipped with emergency lighting, that each floor have at least two separate and distinct exits, that battery-operated fire alarm systems be tested monthly and electronic systems be tested at least annually, and that all hinged doors serving as required exits from an area designed for an occupancy in excess of 50 persons, or as part of a major remodeling project or as part of new construction, swing with exit traffic. (IAC 201-50.19 (5), (6), (7), (8), and (10)) Wisconsin does not have a similar requirements.

Use of restraints/use of force: The Iowa code is similar to the Wisconsin code.

Inmate discipline: Iowa provides that no inmate shall be allowed to have authority or disciplinary control over another inmate. (IAC 201-50.21 (1)) Wisconsin has no similar provision.

Administrative confinement: Iowa code does not address this issue.

Inmate activities: Iowa provides that an inmate who is held more than 7 days and is not involved in a work release program or other activities allowing outside activity shall be permitted exercise time. (IAC 201-50.18 (1)) The proposed code requires that an inmate must be provided one hour of out of cell time or outdoor time (when and where available) but otherwise only requires that the facility have policies and procedures to address the issue. (s. DOC 350.33)

3. Michigan

Medical/Dental: Michigan identifies specific elements of the health screening tool. (R 791.731) Section DOC 350.13 requires that the health screening tool be developed in conjunction with health care professional and identifies general areas of information. Michigan specifies the elements of a health appraisal of an inmate. (R 791.732) Section DOC 350.13 (5) requires a health appraisal which is completed by health care staff in accordance with protocols established by the responsible physician but does not specify the elements to be addressed.

Inmate supervision: Michigan code does not address this issue.

Key control and use: Michigan code does not address this issue.

Door and lock inspections: Michigan code does not address this issue.

Inmate counts: Michigan code does not address this issue.

Fire safety: Michigan requires that all housing areas and places of assembly have 2 exits. (R 791.704) Michigan requires quarterly inspection and testing of equipment. (R 791.709 (b)) Michigan requires that the specifications for facility furnishings include the fire safety performance requirements of the materials selected. (R 791.711) Michigan requires that a jail establish written policies and procedures and practice that govern the control and use of all flammable, toxic and caustic materials. (R 791.713) Michigan requires that the jail's evacuation plan contain specific information which is not required by Wisconsin. (R 791.715) The proposed Wisconsin code does not address these specific issues but requires that the fire safety plan be developed in cooperation with local fire officials.

Use of restraints/use of force: Michigan code is similar to the Wisconsin code.

Inmate discipline: Michigan code does not address this issue.

Administrative confinement: Michigan code does not address this issue.

4. Minnesota

Medical/Dental: Minnesota has rule provisions which address health complaints (s. 2911.5800, subp. 8), frequency of sick call based on size of the jail (s. 2911.5800, subp. 9), development of written plan for personal hygiene (s. 2911.6300, subp. 1), including for those inmates who are unable to care for themselves, retraining of staff on the delivery of medications every 3 years (s. 2911.6600, subp. 3), and prohibition of the use of inmates as research subjects (s. 2911.6900). Wisconsin requires the development of policies and procedures to address a variety of medical issues but not necessarily those stated above. (s. DOC 350.13, 350.14, 350.15, 350.16, and 350.17) The proposal requires annual retraining of staff on the delivery of medications. (s. DOC 350.16 (2))

Inmate supervision: Minnesota requires that inmates are personally observed by custody staff at least once every 30 minutes at staggered intervals. More frequent observation is required for special need inmates. (s. 2911.5700, subp. 2)

Key control and use: Minnesota requires that keys which serve a critical security purpose are easily identifiable. (s. 2911. 5400, subp. 1) Wisconsin does not have a similar provision.

Door and lock inspections: Minnesota requires weekly testing of security doors and gates and prohibits leaving locks to security doors or gates in inoperable or unsuitable condition. (s. 2911.5400, subp. 3 and 4) Wisconsin requires monthly inspection of doors and lock to determine that they are in good working order. (s. DOC 350.18 (7)) Minnesota also requires that all security doors, are kept locked, except to facilitate movement of employees, inmates, or visitors or in an emergency and that only one sally port door be opened at any point in time for entry or exit purposes. (s. 2911.5400, subp. 2) Wisconsin does not have a similar provision.

Inmate counts: Minnesota requires that formal counts shall be completed and documented at least once each 8 hours. (s. 2911.5700, subp.1)

Fire safety: Minnesota requires a weekly fire code and safety inspection. (s. 2911.7300 (4)) Wisconsin does not have a similar requirement.

Use of restraints/use of force: Minnesota limits the use of restraints to prevent escape during transfer, for medical purposes at the direction of a physician or psychologist, to prevent self-harm or damage to property, or by order of the jail administrator. (s. 2911.3000, subp.2) The proposed code provision is similar but also includes as a reason to apply restraints prevention of death or bodily injury to the inmate, a staff member, or another inmate. (s. DOC 350.22 (1))

Inmate discipline: Minnesota provides that the status of an inmate placed on disciplinary segregation subsequent to a due process hearing shall be reviewed by the jail administrator or designee at least once every 30 days and that as part of the review process the jail administrator or designee shall visit the inmate at least once every seven days. (s. 2911.2850, subp.3, E)

Administrative confinement: Minnesota code is similar to the proposed Wisconsin code. (s. 2911.2850, subp.3, E; s. DOC 350.25)

Inmate activities, visitation, mail, telephone access, food service, and canteen: Minnesota code is similar to the proposed code. However, there are a few differences. For example, Minnesota code requires one hot meal per day. (s. 2911.4700) Wisconsin code requires two hot meals per day. (s. DOC 350.11 (6)) Minnesota code provide for telephone access while Wisconsin code does not specifically address the issue. (s. 2911. 3400)

Summary of the factual data and analytical methodologies that DOC used in support of its determination of the rule's fiscal effect on small businesses under s. 227.114, Stats.

During 2010, the Department began reviewing detention standards in place within other states, including Illinois, Iowa, Michigan, Minnesota, as well as U.S. Immigration and Customs Enforcement. Standards recommended by the American Correctional Association, as well as the National Commission for Correctional Health Care, widely recognized accrediting organizations, were also reviewed.

The Department formed a multi-jurisdictional workgroup, comprised of officials from the Wisconsin Department of Corrections, Department of Justice, local Sheriffs and jail administrators, as well as members from mental health advocacy groups, who were tasked with review of existing mental health detention standards and providing recommendations. After review of relevant standards and recommendations, DOC submitted a draft of updated standards to Sheriffs and jail administrators of all 72 counties, the Badger State Sheriff's Association, and the Wisconsin Counties Association. The Department met with Sheriffs and jail administrators at regional locations throughout the state to receive feedback. Feedback from local officials was taken into consideration, and in some cases, draft standards were modified. Consideration was given to minimize the fiscal effect of revised standards, while targeting performance levels reflective of detention best-practices.

The proposed rule change is expected to have no adverse impact on small businesses, as it relates to construction and operational standards for county jails. The Department determined this rule would not adversely affect in a material way the economy, a sector of the economy, productivity, jobs, or the overall economic competitiveness of the state.

Any analysis and supporting documents that DOC used in support of DOC's determination of the proposed rule's effect on small businesses or that was used when the DOC prepared an economic impact report

A review of the revised chapter by Department staff as well as local government officials was conducted and it was determined the revised rule would not adversely modify reporting requirements, schedules or deadlines, or operational standards for small businesses. New standards for food service would be in place for county jails, requiring three meals a day, two of which would be hot (exceptions may occur provided basic nutritional goals are met). Private food service providers were consulted regarding these new requirement. Feedback was received indicating this requirement may be more feasible than current practice in some jails as preparing and serving hot meals is typically considered more cost effective and less labor intensive than preparing and serving cold meals.

Effect on Small Businesses

The proposed rule is not anticipated to have any significant adverse impact upon small businesses as defined in s. 227.114 (1), Wis. Stats.

Agency Contact Person

Kathryn R. Anderson

Chief Legal Counsel

3099 E. Washington Avenue

P.O. Box 7925

Madison, WI 53707-7925

(608) 240-5049

FAX (608) 240-3306

kathryn.anderson@wisconsin.gov.

Place where Comments are to be Submitted and Deadline for Submission

Comments are to be submitted by July 5, 2013, to: