STATEMENT OF SCOPE
DEPARTMENT OF CORRECTIONS
Relating to: The creation of chapter DOC 347, relating to secured residential care centers.
Rule Type: Emergency Rule
1. FINDING/NATURE OF EMERGENCY.
The objective of the rule is to establish an emergency rule in response to the creation of 2017 Wisconsin Act 185, which authorizes the design and construction of secured residential care centers for children and youth. Pursuant to 2017 Act 185, notwithstanding section 227.24 (1) (a) and (3) of the statutes, the department is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection. Moreover, the Act provides that if the governor does not disapprove the statement of scope by the 7th day after the department presents the statement to the governor, the statement is considered approved by the governor.
2. DETAILED DESCRIPTION OF THE OBJECTIVE OF THE PROPOSED RULE.
The objective of the emergency rule is to create chapter DOC 347 as a result of changes to chapters 301, 938, Wis. Stats., by the enactment of 2017 WI Act 185. Chapter DOC 347 seeks to establish minimum standards for the design, construction, repair, maintenance of secured residential care centers for children and youth, the approval and operation of secured residential care centers for children and youth, and the services and programs for juveniles in secured residential care centers for children and youth. DOC will include uniform data reporting standards for counties or Indian tribes that operate or contract for secured residential care centers for children and youth. 3. DESCRIPTION OF EXISTING POLICIES AND NEW POLICIES INCLUDED IN PROPOSED RULE AND AN ANALYSIS OF POLICY ALTERNATIVES.
Chapter DOC 347 seeks to establish minimum standards for the design and construction of secure residential care centers for children and youth and for the supervision, maintenance, operation, and performance standards criteria of same facility consistent with the federal Juvenile Justice and Delinquency Act and the Prison Rape Elimination Act. Presently there are no DOC policies related to this, thus the department is not proposing new changes. The alternative to this is to do nothing.
4. STATUTORY AUTHORITY.
Section 227.11 (2) (a) – (c). Rule–making authority is expressly conferred 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 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.
(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. (2) Prisons. The department shall visit all places in which persons convicted of or suspected crime are confined, and ascertain their arrangement for the separation of the hardened criminals from juvenile offenders and person suspected of crime or detained as witnesses; collect statistics concerning the inmates, their treatment, employment and reformation; and collect information of other facts and considerations affecting the increase or decrease of crime.
(3) Inspections. The department shall inquire into the methods of treatment, instruction, government and management of inmates of the institutions mentioned in this section; the conduct of their trustees, managers, directors, superintendents and other officers and employees; the condition of the buildings, grounds and all other property pertaining to the institutions, and all other matters pertaining to their usefulness and management; and recommend to the officers in charge such changes and additional provisions as it deems proper.
(4) Frequency of inspections. The department shall inspect and investigate each institution at lease annually and , when directed by the governor, it shall conduct a special investigation into an institution's management, or anything connected with its management, and report to the governor the testimony taken, the facts found and conclusions drawn.
…
(6) Opportunity to inspect. All trustees, managers, directors, superintendents and other officers or employees of the institutions shall at all times afford to every member of the department and its agents, unrestrained facility for inspection of and free access to all parts of the buildings and grounds and to all books and papers of the institutions; and shall give, either verbally or in writing, such information as the department requires. Any person who violated this subsection shall forfeit not less than $10 nor more than $100.
…
(8) Statistics to be furnished. Wherever the department is required to collect statistics, the person or agency shall furnish the required statistics on request.
(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, with respect to their adequacy and fitness for the needs which they are to serve.
