Notice of Proposed Rule

DEPARTMENT OF CORRECTIONS
RULE NO.: RULE TITLE:
33-103.007: Appeals and Direct Grievances to the Office of the Secretary
33-103.014: Reasons for Return of Grievance or Appeal Without Processing
33-103.016: Follow Through on Approved Grievances
PURPOSE AND EFFECT: The purpose and effect of the proposed rulemaking is to update titles, bureau names and address issues in the grievance process that will enhance efficiency.
SUMMARY: The proposed rule is amended to update titles and bureau names, amend the types of grievances and timeframes, and specify grievance procedures.
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: Analysis from Policy Management and Inmate Appeals indicates that the rule changes only affect internal operations, are largely stylistic and organizational in nature and will not have a negative economic impact or affect small business.
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.
LAW IMPLEMENTED: 944.09 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 RULE IS: Laura Gallagher, 501 South Calhoun Street, Tallahassee, Florida 32399-2500

THE FULL TEXT OF THE PROPOSED RULE IS:

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

(1) In the event that an inmate feels that the grievance has not been satisfactorily resolved during the formal grievance procedure, an appeal may be submitted according to the time limits set forth in Rule 33-103.011, F.A.C., using Form DC1-303, the Request for Administrative Remedy or Appeal, Form DC1-303, to the Office of the Secretary without interference from staff. Form DC1-303 is incorporated by reference in Rule 33-103.006, F.A.C.

(2) Procedural Requirements.

(a) The inmate shall fill out the identifying data at the top of the form by printing his committed name, Department of Corrections number, and institution or facility name and shall check the appropriate box;

(b) The inmate shall state his grievance in Part A. If additional space is needed, the inmate may use no more than 2 attachment pages rather than multiple copies of Form DC1-303. If the inmate writes his complaint anywhere other than within the boundaries of the Part A Box or on attachments, the his grievance shall be returned for non-compliance;

(c) through (f) No change.

(3) The Office of the Secretary has designated the Bureau of Policy Management and Inmate Grievance Appeals to receive, review, investigate, evaluate and respond to appeals and direct grievances filed with the Office of the Secretary. Appeals and direct grievances to the Office of the Secretary shall be turned over that same date to the Bureau of Policy Management and Inmate Grievance Appeals which shall ensure that the grievance is date-stamped in on the date of receipt. Upon receipt of the appeal or direct grievance by the Bureau of Policy Management and Inmate Grievance Appeals, the following shall occur:

The decision of whether or not the grievance has been timely filed by the inmate shall be made based upon the following comparisons:

(a) through (b) No change.

(4) Upon receipt of the grievance appeal or direct grievance, the Chief of Policy Management and Inmate Grievance Appeals shall cause the following to occur:

(a) through (d) No change.

(e) Following appropriate investigation and evaluation by staff of the Bureau of Policy Management and Inmate Grievance Appeals, a response shall be provided to the inmate. The degree of investigation is determined by the complexity of the issue and the content of the grievance.

(f) The response shall state whether the appeal or direct grievance is approved, denied, or being returned and shall also state the reasons for the approval, denial, or return. The criteria considered in approving, denying, or returning an appeal or direct grievance will vary with the facts of the grievance.

(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.;

(b) Attach a copy of his informal grievance and response, except when appealing 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 Americans 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) Attach any other documentation that the inmate has that is pertinent to the review and that the inmate wants reviewed. Attachments as required by the rule that do not meet the requirements of this rule may result in the grievance being returned to the inmate.;

(d) No change.

(e) If the inmate is filing an amendment to a previously filed grievance or appeal, the inmate shall clearly state this at the beginning of PART A of Form DC1-303, the Request for Administrative Remedy or Appeal, Form DC1-303.

(6) Direct Grievances.

(a) Emergency grievances and, grievances of reprisals, or grievances of a sensitive nature 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 Form DC1-303, 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, or a grievance of a sensitive nature. When alleging HIPAA violations, the inmate shall state that the grievance concerns HIPAA at the beginning of Part A of Form DC1-303.

2. The inmate must clearly state the reason for not initially bringing the complaint to the attention of institutional staff and by-passing the informal and formal grievance steps of the institution or facility, except in the case of a HIPAA violation grievance, which must be filed directly with the Office of the Secretary.

3. The inmate may forward grievances of these four types to the Office of the Secretary in a sealed envelope by following the procedure set out in paragraph 33-103.006(8)(d), F.A.C. When a direct grievance alleging violation of HIPAA is received at the Office of the Secretary, the Bureau of Policy Management and Inmate Grievance Appeals shall forward the grievance to the Office of the Assistant Secretary for Health Services for investigation and response. The disclosure of medical information in a grievance authorizes staff to review the information and to use and disclose the medical information necessary to investigate in order to respond. Following preparation of a response and signature of the responding employee, the grievance shall be returned to the Bureau of Policy Management and Inmate Grievance Appeals to ensure appropriate filing and routing.

(b) Emergency Grievances. An emergency grievance may be filed directly with the Secretary. Upon receipt, staff of the Bureau of Policy Management and Inmate Grievance Appeals shall take the following actions as soon as possible, but no later than two calendar days following receipt:

1. through 2. No change.

3. Provide a formal response to the inmate within 15 calendar days; and

4. If an emergency is not found to exist, the grievance will be stamped “not an emergency,, signed and dated by the responding employee, and returned to the inmate within three working days of receipt as his reasons for by-passing the previous level of review will not be valid.

(c) Grievances filed directly with the Office of the Secretary that are grievances of reprisal, grievances of a sensitive nature, 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, or a grievance of a sensitive nature, 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) No change.

(8) Copies.

(a) The original copy of the grievance shall be returned to the inmate. The response shall be stamped “MAILED/FILED WITH AGENCY CLERK” along with the date mailed; the response shall be mailed on the same date that it is stamped. The response is deemed filed with the agency clerk on the date that it is stamped and mailed. The time period for appeal begins to run on the date that the response is stamped and mailed. If the inmate is transferred, it is his or her responsibility to notify the Bureau of Policy Management and Inmate Grievance Appeals.

(b) One copy of the grievance shall be sent to the warden of the institution or facility the inmate is assigned to for review and forwarding for inclusion in the inmate file.

(c) The second copy shall be forwarded to the Bureau of Classification and Central Records for inclusion in the inmate’s central office file.

(d) Attachments are considered a part of the grievance and shall not be returned to the inmate, except in those cases where the inmate submits sufficient copies of attachments at the time the grievance appeal is filed.

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,_________.

 

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

(1) The informal grievance, formal grievance, direct grievance filed direct, or grievance appeal, hereafter referred to as “grievance,in this section of the rule 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) The grievance addresses more than one issue or complaint.;

(b) The grievance is so broad, general or vague in nature that it cannot be clearly investigated, evaluated, and responded to.;

(c) The grievance is not written legibly and cannot be clearly understood.;

(d) The formal grievance was not received within 15 calendar days of the date of the response to the informal grievance.;

(e) The formal grievance was not received within 15 calendar days of the date on which the incident or action being complained about occurred, if an informal grievance was not filed pursuant to subsection 33-103.006(3), F.A.C.;

(f) through (l) No change.

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

(n) through (o) No change.

(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.)

(q) No change.

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

(s) Complaints are raised by an inmate regarding incidents, procedures, policies or rules that do not affect the inmate personally.

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

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

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

(2) An inmate who has a grievance returned to him for reasons stated in subsection (1) above [excluding paragraph (1)(d), (e), (h), (i), (n), (o), (q), (r) or (s)] 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 for him 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), (n), (o), (q), (r) or (s).

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, 12-7-97, 5-10-98, Formerly 33-29.014, Amended 6-29-03, 2-9-05,_________.

 

33-103.016 Follow Through on Approved Grievances.

(1) Formal Grievance – Institution or Facility Level. All formal grievances that which 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 form DC1-306, Grievance Approval Action Form. Form DC1-306 is hereby incorporated by reference in Rule 33-103.019, F.A.C. Copies of this form are available from the Forms Control Administrator, 501 South Calhoun Street, Tallahassee, Florida 32399-2500. The effective date of the form is 08-01-00.

(b) The approving employee shall then send Form form DC1-306 and a copy of the approved formal grievance to the grievance coordinator in the event they are not one and the same.

(c) The grievance coordinator shall complete Sections II, III, and IV of Form form DC1-306. The grievance coordinator shall then provide the form DC1-306 and a copy of the approved grievance to the staff member(s) assigned responsibility for implementing the approved action. The grievance coordinator shall monitor this process.

(d) The assigned staff member(s) shall complete Section V of Form form DC1-306, stating what steps were taken to implement the approved action. This shall not be done until after the steps have been taken. The assigned staff member(s) shall have 30 calendar days from the date the grievance was approved within which to implement the approved action. In the event that actual implementation cannot be completed within the 30 day period due to circumstances beyond the control of department staff, the assigned staff member(s) shall indicate this and the reasons therefor in Section V within the 30 day period. The form shall be held by the assigned staff member until the corrective action has been taken.

(e) No change.

(f) The grievance coordinator shall complete Section VII of Form form DC1-306, place a copy of the form in the grievance record log, and attach a copy of the form DC1-306 to the copy of the approved grievance in the inmate’s file. A copy of the form shall not be sent to central office.

(2) Appeals and direct grievances to the Office of the Secretary. All grievances that which are approved by the Office of the Secretary/Bureau of Policy Management and Inmate Grievance Appeals shall be handled as follows:

(a) The employee approving the grievance shall complete Section I of Form form DC1-306.

(b) The approving employee shall then mail Form form DC1-306, along with a copy of the approved grievance or appeal, to the appropriate warden’s office.

(c) The warden shall forward Form the DC1-306 to the institutional grievance coordinator who shall complete Sections II, III, and IV of the form DC1-306. The grievance coordinator shall then provide the form DC1-306 and a copy of the approved grievance to the staff member(s) assigned responsibility for implementing the approved action. The grievance coordinator shall monitor this process.

(d) The assigned staff member(s) shall complete Section V of Form form DC1-306 stating what action was taken to carry out the approval. This shall not be done until after the action has actually been taken. The assigned staff member(s) shall have 35 calendar days from the date the grievance or appeal was approved within which to implement the approved action. In the event that actual implementation cannot be completed within the 35 day period due to circumstances beyond the control of department staff, the assigned staff member(s) shall indicate this and the reasons therefor in Section V. The form shall be held by the assigned staff member until the corrective action has been taken.

(e) No change.

(f) The grievance coordinator shall place a copy of the completed form in the inmate’s institutional file, retain a copy for his record, and forward the original and canary copy of form DC1-306 to the Chief of Policy Management and Inmate Grievance Appeals within 45 calendar days from the grievance approval date. The Chief shall ensure that the inmate grievance log in the Bureau of Policy Management and Inmate Grievance Appeals is updated and that a copy of Form form DC1-306 is sent to the central office inmate file.

Rulemaking Specific 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,_________.


NAME OF PERSON ORIGINATING PROPOSED RULE: Michelle Pyle, Deputy Assistant Secretary
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Kenneth S. Tucker, Secretary
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: March 20, 2012
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: September 30, 2011