The purpose of the rulemaking is to update the inmate grievance rules and to implement s. 944.241, Florida Statutes, concerning grievances over the restraint of pregnant inmates. Form DC1-306 is revised for conformity with the rule and Department ...

 

DEPARTMENT OF CORRECTIONS

RULE NO.: RULE TITLE:
33-103.002: Inmate Grievances - Terminology and Definitions
33-103.005: Informal Grievance
33-103.006: Formal Grievance - Institution or Facility Level
33-103.007: Appeals and Direct Grievances to the Office of the Secretary
33-103.011: Time Frames for Inmate Grievances
33-103.014: Reasons for Return of Grievance or Appeal Without Processing
33-103.015: Inmate Grievances - Miscellaneous Provisions
33-103.016: Follow Through on Approved Grievances
33-103.018: Evaluation of the Grievance Procedure
33-103.019: Inmate Grievances - Forms

PURPOSE AND EFFECT: The purpose of the rulemaking is to update the inmate grievance rules and to implement Section 944.241, Florida Statutes, concerning grievances over the restraint of pregnant inmates. Form DC1-306 is revised for conformity with the rule and Department titles are changed. The effect of the rulemaking is to promote efficiency by specifying matters for which an inmate may proceed directly to a formal grievance or to the Office of Secretary without first having to submit an informal grievance. The rulemaking provides a new grievance procedure, including a time extension, for grievances relating to restraint of pregnant inmates. Rule 33-103.019, F.A.C., which is a forms list, is repealed because all of the forms are currently incorporated within rule text.

SUMMARY: The rulemaking updates the inmate grievance rules and implements Section 944.241, Florida Statutes, providing a new grievance procedure concerning the restraint of pregnant inmates. Form DC1-306 is revised and Department titles are changed. The rulemaking specifies the circumstances under which an inmate may proceed directly to a formal grievance or to the Office of Secretary without first submitting an informal grievance. Rule 33-103.019, F.A.C., is repealed.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: Upon review of the proposed changes to these rules and incorporated forms, the department has determined that the amendments will not exceed any one of the economic analysis criteria in a SERC as set forth in Section 120.541(2)(a), F.S.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 944.09 FS, 944.241 FS
LAW IMPLEMENTED: 944.09 FS, 944.241 FS

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAW.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULES IS: Laura Gallagher, 501 South Calhoun Street, Tallahassee, Florida 32399-2500

 

THE FULL TEXT OF THE PROPOSED RULES IS:

 

33-103.002 Inmate Grievances – Terminology and Definitions.

The following terms, as defined, shall be standard usage throughout the department:

(1) through (9) No change.

(10) Grievance of Sentence Structure (Release Date Calculations): Complaints concerning the manner in which the Department records and executes the judgment and sentence of the court. This category of appeal involves the calculation of the release date but does not include the determination of monthly gain time awards. Included are questions relating to the length of sentence, whether the court imposed mandatory or special sentencing provisions, credit for time served, date of imposition of sentence, sentence chaining (concurrent or consecutive), and forfeitures arising from judicial or Parole Commission revocations (not forfeitures through the administrative disciplinary process).

(11)(10) HIPAA: The Health Insurance Portability and Accountability Act of 1996.

(12)(11) Informal Grievance: This is Aan initial statement of complaint filed on an Form DC6-236, Inmate Request, with the staff member who is responsible in the particular area of the problem. Form DC6-236 is incorporated by reference in Rule 33-103.005, F.A.C. The effective date of the form is 6-12.

(13)(12) Literature Review Committee: The final reviewing authority for appeals regarding rejected reading material. The committee is composed of the Bureau Chief of Security Operations or his or her representative, the Bureau Chief of Policy Management and Inmate Appeals or his or her representative, the Bureau Chief of Classification or his or her representative, and the Library Services Administrator or his or her representative.

(14)(13) Recipient: A person or office receiving an inmate grievance for processing.

(15)(14) Reviewing Authority: A staff member authorized to sign grievances or appeals as the final authority for review, e.g., warden, assistant warden, deputy warden, or the Secretary’s representative.

(a) Informal Grievance:

Staff member designated by the warden who is responsible for the issue grieved.

(b) through (d) No change.

(16)(15) Response: The information provided to the inmate relative to the decision to approve, deny, or return the grievance and the reasons for the approval, denial, or return.

 

Rulemaking Authority 944.09 FS. Law Implemented 944.09 FS. History–New 10-12-89, Amended 1-15-92, 12-22-92, 4-10-95, 12-7-97, Formerly 33-29.002, Amended 10-11-00, 1-2-03, 9-16-03, 2-9-05, 3-25-08, 5-27-12,________.

 

33-103.005 Informal Grievance.

(1) Inmates shall utilize the informal grievance process prior to initiating a formal grievance. Inmates may skip this step and initiate the process at the formal institutional level for issues pertaining to the following: grievance of an emergency nature, grievance of reprisal, grievance alleging violations of the Americans with Disabilities Act, medical grievance, grievance involving gain time governed by Rule 33-601.101, F.A.C. Incentive Gain Time, grievance challenging placement in close management or subsequent reviews, grievances regarding the return of incoming mail governed by subsection 33-210.101(14), F.A.C., grievances regarding disciplinary action (does not include corrective consultations) governed by Rules 33-601.301-.314, F.A.C. In the case of an emergency grievance, a grievance of reprisal, a grievance alleging violation of the Americans with Disabilities Act, a medical grievance, a grievance involving admissible reading material, a grievance involving gain time governed by Rule 33-601.101, F.A.C., Incentive Gain Time, a grievance challenging placement in close management and subsequent reviews, grievances regarding the return of incoming mail governed by subsection 33-210.101(14), F.A.C., or a grievance involving disciplinary action (does not include corrective consultations) governed by Rules 33-601.301-.314, F.A.C., an inmate may utilize the formal grievance process governed by Rule 33-103.006, F.A.C., directly, bypassing the informal grievance process. An inmate shall utilize the direct grievance process Inmates may proceed directly to the Office of the Secretary on the following issues as governed by subsection 33-103.007(6), F.A.C.:, for grievances alleging a violation of the Health Insurance Portability and Accountability Act (HIPAA), rather than initiating an informal or formal grievance of emergency nature, grievance of reprisal, protective management, admissible reading material, sentence structure issues (release date calculations), and inmate banking issues.

(a) through (c) No change.

(2) through (5) No change.

 

Rulemaking Authority 944.09 FS. Law Implemented 944.09 FS. History–New 10-12-89, Amended 1-15-92, 12-22-92, 3-30-94, 4-17-94, 4-10-95, 8-10-97, 12-7-97, 2-17-99, Formerly 33-29.005, Amended 8-1-00, 2-9-05, 3-25-08, 1-31-10, 5-27-12,________.

 

33-103.006 Formal Grievance – Institution or Facility Level.

(1) No change.

(2) Procedural Requirements.

(a) through (b) No change.

(c) The inmate shall state his grievance in Part A. If additional space is needed, the inmate shall use attachments rather than multiple copies of Form DC1-303. Only 2 additional pages of narrative will be allowed. If the inmate writes his complaint anywhere other than within the boundaries of Part A or on the 2 allowable attachment pages, his grievance shall be returned for non-compliance.

(d) through (i) No change.

(3) The following types of grievances may be filed directly with the reviewing authority as defined in paragraph 33-103.002(15)(14)(b), F.A.C., by-passing the informal grievance step, and may be sent in a sealed envelope through routine institutional mail channels:

(a) through (f) No change.

(g) Grievance involving sentence structure.

(g)(h) Grievance challenging placement in close management or subsequent review.

(h)(i) Grievance alleging violation of the Americans with Disabilities Act.

(i)(j) Grievance regarding the return of incoming mail governed by subsection 33-210.101(14), F.A.C.

(4) through (10) No change.

 

Rulemaking Authority 944.09 FS. Law Implemented 944.09 FS. History–New 10-12-89, Amended 1-15-92, 12-22-92, 4-10-95, 8-10-97, 12-7-97, 5-10-98, 2-17-99, Formerly 33-29.006, Amended 8-1-00, 10-11-00, 2-9-05, 10-28-07, 3-25-08, 5-27-12,________.

 

33-103.007 Appeals and Direct Grievances to the Office of the Secretary.

(1) No change.

(2) Procedural Requirements.

(a) No change.

(b) The inmate shall state his grievance in Part A. If additional space is needed, the inmate shall use attachments rather than multiple copies of Form DC1-303. Only 2 additional pages of narrative will be allowed. If the inmate writes his complaint anywhere other than within the boundaries of the Part A Box or on the 2 allowable attachments pages, his grievance shall be returned for non-compliance;

(c) through (f) No change.

(3) through (4) No change.

(5) Grievance appeals – If the grievance appeal is not a direct grievance to the Office of the Secretary, the inmate shall:

(a) Attach a copy of his formal grievance and response, except when appealing issues regarding requests for protective management, admissible reading material, sentence structure (release date calculations), inmate banking, emergencies or allegations of reprisal. (These may be filed directly to the Office of the Secretary).;

(b) Attach a copy of his informal grievance and response, except when appealing issues regarding medical, Americans with Disabilities Act, gain time governed by Rule 33-601.101, F.A.C. Incentive Gain Time, placement in close management and subsequent reviews, return of incoming mail governed by subsection 33-210.101(14) F.A.C., disciplinary action (does not include corrective consultations) governed by Rule 33-601.314, F.A.C. grievances on inmate bank issues, sentence structure, disciplinary action (excluding corrective consultations), medical issues, admissible reading material, placement in close management and subsequent reviews, violation of the American with Disabilities Act, grievances regarding the return of incoming mail governed by subsection 33-210.101(14), F.A.C., or grievances involving gain time governed by Rule 33-601.101, F.A.C., Incentive Gain Time.

(c) through (e) No change.

(6) Direct Grievances.

(a) Emergency grievances, grievances of reprisals, protective management, admissible reading material, grievances concerning sentence structure (release date calculations), or inmate banking issues may be filed directly with the Office of the Secretary using the Request for Administrative Remedy or Appeal, Form DC1-303. Grievances alleging a violation of the Health Insurance Portability and Accountability Act (HIPAA) must be filed directly with the Office of the Secretary using the Request for Administrative Remedy or Appeal, Form DC1-303. The following shall apply:

1. The inmate shall state at the beginning of Part A of Form DC1-303 that the grievance concerns either an emergency or is a grievance of a reprisal. When alleging HIPAA violations, the inmate shall state that the grievance concerns HIPAA at the beginning of Part A of Form DC1-303.

2. through 3. No change.

(b) No change.

(c) Grievances filed directly with the Office of the Secretary that are grievances of reprisal, protective management, admissible reading material, sentence structure (release date calculations), inmate banking issues, or a grievance alleging a violation of HIPAA shall be responded to according to established time frames.

(d) Upon receipt of the direct grievance and following review of the same, if it is determined that the grievance is not an emergency grievance, a grievance of reprisal, protective management, admissible reading material, sentence structure (release date calculations), inmate banking issues, or a grievance alleging a violation of HIPAA, the grievance shall be returned to the inmate with the reasons for return specified advising the inmate to resubmit his or her grievance at the appropriate level. The other applicable procedures in Rule 33-103.007, F.A.C., governing the processing of appeals to the Office of the Secretary shall apply to these four types of grievances.

(7) through (8) No change.

 

Rulemaking Specific Authority 944.09 FS. Law Implemented 944.09 FS., 45 C.F.R. Part 160, 164. History–New 10-12-89, Amended 1-15-92, 12-22-92, 4-10-95, 8-10-97, 12-7-97, 10-7-98, 2-17-99, Formerly 33-29.007, Amended 8-1-00, 6-29-03, 2-9-05, 8-21-06, 3-25-08,_________.

 

33-103.011 Time Frames for Inmate Grievances.

When determining the time frames for grievances in all cases, the specified time frame shall commence on the day following the date of the incident or response to the grievance at the previous level. For example, if an incident occurred on December 1, fifteen days from that date would be December 16.

(1) Filing of Grievances.

(a) Informal Grievances – Must be received within 20 days of when the incident or action being grieved occurred unless the inmate has requested in writing and received approval for a 45 day extension to file an informal grievance about being physically restrained during pregnancy, labor or post-partum recovery pursuant to Rule 33-602.211, F.A.C. The request for an extension must be submitted on Form DC6-236, Inmate Request, and received within 20 days of the application of restraints.

(b) through (d) No change.

(2) through (5) No change.

 

Rulemaking Authority 944.09 FS. Law Implemented 944.09 FS. History–New 10-12-89, Amended 1-15-92, 12-22-92, 4-10-95, 12-7-97, Formerly 33-29.011, Amended 2-9-05, 3-25-08, 5-27-12,________.

 

33-103.014 Reasons for Return of Grievance or Appeal Without Processing.

(1) The informal grievance, formal grievance, direct grievance, or grievance appeal, hereafter referred to as “grievance,” may be returned to the inmate without further processing if, following a review of the grievance, one or more of the following conditions are found to exist. The reasons listed below are the only reasons for returning a grievance without a response on the merits.

(a) through (j) No change.

(k) The inmate is being advised to re-file an informal grievance with a specific staff member.

(k)(l) The inmate has written his or her complaint outside of the boundaries of the space provided on the grievance form or request form.

(l)(m) The inmate has used multiple copies of grievance forms rather than attachments as continuation sheets.

(m)(n) A decision has already been rendered to an inmate by a particular office on the issue currently being grieved before it.

(n)(o) The inmate is grieving a matter beyond the control of the Department as described in subsection 33-103.001(4), F.A.C.

(o)(p) The inmate is raising allegations and charges in a grievance appeal that have not been raised below at the previous level. (Since this is an appellate review process and not a fact-finding process, it is not appropriate to raise new allegations, charges, and facts that the previous decision maker has not had an opportunity to investigate and respond to.)

(p)(q) The inmate has filed more than one appeal of a grievance. This would not include the situation where an inmate wishes to appeal the denial of his grievance as well as allege non-compliance with the grievance process. Since these are two separate issues, they would have to be raised in separate grievances.

(q)(r) The inmate has filed a supplement to a grievance or appeal that has already been accepted. An exception will be made when the supplement contains relevant and determinative information that was not accessible to or known by the inmate at the time the original grievance or appeal was filed.

(r)(s) Complaints are raised by an inmate regarding incidents that do not affect the inmate personally.

(s)(t) The inmate filed a grievance at the institutional level that should have been filed directly with the Office of the Secretary.

(t)(u) The inmate used more than two (2) additional narrative pages.

(u)(v) The inmate filed an informal grievance in excess of 20 days from the time the event being grieved occurred.

(v) The inmate is using the grievance process to ask questions or seek information, guidance or assistance.

(w) The inmate is filing an informal grievance about being physically restrained pursuant to Rule 33-602.211, F.A.C. either beyond the initial required timeframe without first requesting and obtaining an extension, or has filed beyond an approved 45 day extension.

(2) An inmate who has a grievance returned to him for reasons stated in subsection (1) above [excluding paragraph (1)(d), (e), (h), (i), (m)(n), (n)(o), (p)(q), (q)(r), or (r)(s), (u), (v) or (w)] may refile utilizing the proper procedure or correct the stated deficiency and refile if upon receipt of this notification the filing is within time frames allowable. When a grievance is returned to an inmate for being improperly filed, the inmate shall be told why the grievance was returned and told that in order to receive administrative review of his complaint he must correct the defects and re-submit the grievance within the time frames set forth in Rule 33-103.011, F.A.C., unless instructed otherwise in the grievance response. Instructions to resubmit are not necessary if a grievance is returned for reasons stated in paragraph (1)(d), (e), (h), (i), (m)(n), (n)(o), (p)(q), (q)(r), or (r)(s), (u), (v) or (w).

 

Rulemaking Authority 944.09 FS. Law Implemented 944.09 FS. History–New 10-12-89, Amended 1-15-92, 12-22-92, 4-10-95, 12-7-97, 5-10-98, Formerly 33-29.014, Amended 6-29-03, 2-9-05, 6-13-12,________.

 

33-103.015 Inmate Grievances – Miscellaneous Provisions.

(1) through (11) No change.

(12) Staff shall respond to inquiries made by the Bureau of Policy Management and Inmate Grievance Appeals by the close of business on the seventh day after the request.

 

Rulemaking Authority 944.09 FS. Law Implemented 944.09 FS. History–New 10-12-89, Amended 1-29-92, 9-3-92, 12-22-92, 7-11-93, 5-3-94, 4-10-95, 9-23-96, 8-10-97, 12-7-97, 5-10-98, 2-17-99, Formerly 33-29.015, Amended 8-1-00, 10-11-00, 2-7-01, 5-27-02, 1-2-03, 2-9-05, 9-4-05, 10-28-07, 5-27-12,________.

 

33-103.016 Follow Through on Approved Grievances.

(1) Formal Grievance – Institution or Facility Level. All formal grievances that are approved at the institution or facility level shall be handled as follows:

(a) The employee approving the grievance shall complete Section I of Form DC1-306, Grievance Approval Action Form. Form DC1-306 is hereby incorporated by reference. Copies of this form are available from the Forms Control Administrator, 501 South Calhoun Street, Tallahassee, Florida 32399 http://www.flrules.org/Gateway/reference.asp?No=Ref-01224. The effective date of the form is ________08-01-00.

(b) through (f) No change.

(2) No change.

 

Rulemaking Authority 944.09 FS. Law Implemented 944.09 FS. History–New 4-10-95, Amended 12-7-97, Formerly 33-29.0155, Amended 8-1-00, 1-1-01, 8-21-06, 3-25-08,_________.

 

33-103.018 Evaluation of the Grievance Procedure.

The grievance procedure shall be reviewed at each institution through operational reviews conducted by the Regional Directors of Institutions Office of Internal Audit. This evaluation shall include information obtained from a survey of staff and inmates, review of employees’ and inmates’ comments on the effectiveness and credibility of the procedure, on-site visits to institutions and facilities by staff of the Bureau of Policy Management and Inmate Appeals, Bureau of Internal Audit and from requested reports prepared by the Bureau of Policy Management and Inmate Appeals.

 

Rulemaking Authority 944.09 FS. Law Implemented 944.09 FS. History–New 10-12-89, Amended 12-22-92, 4-10-95, Formerly 33-29.017, Amended 2-9-05, 5-27-12,________.

 

33-103.019 Inmate Grievances – Forms.

 

Rulemaking Authority 944.09 FS. Law Implemented 944.09 FS. History–New 10-12-89, Amended 4-10-95, 12-7-97, Formerly 33-29.018, Amended 8-1-00, 10-11-00, 2-9-05, 12-17-06, 6-18-07, 8-27-07, 10-19-09, 5-27-12, Repealed_________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Michelle Pyle, Deputy Assistant Secretary of Planning and Program Analysis

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Kenneth S. Tucker, Secretary

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: July 12, 2012

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: July 27, 2012