The granting of a variance under this part for one facility shall not constitute a precedent for any other facility. The granting and denial of variances shall be in writing and made within 30 days of the request for a variance. The variance shall be granted by the commissioner if, in the licensing procedure or enforcement of this chapter, all of the following are present:
requiring a particular facility to strictly comply with one or more of the provisions will result in undue financial hardship or jeopardize the health, safety, security, detention, or well-being of the inmates or facility staff;
the facility is otherwise in substantial conformity with this chapter or is making satisfactory progress toward substantial conformity;
granting the variance will not preclude the facility from making satisfactory progress toward substantial conformity with this chapter;
granting the variance will not leave the interests and well-being of the inmates or facility staff unprotected; and
the facility will take substitute action as is necessary or available to comply with the general purpose of this chapter to the fullest extent possible.
When a facility administrator declares an emergency, the applicable rules may be suspended during the duration of the emergency. The facility administrator or designee shall notify the DOC in writing within 72 hours of an emergency that results in the suspension of any rule under this chapter.
[Repealed, 38 SR 523]
A suspension of rules because of an emergency declared by a facility administrator or a designee shall not exceed seven days unless the administrator obtains the approval of the commissioner of corrections for a variance to the rules and the variance is necessary:
for the protection of the health, security, safety, detention, or well-being of the staff or the inmates detained or confined in the institution where the emergency exists; or
when an emergency public safety issue has occurred.
The facility administrator or a designee shall notify the DOC in writing of each instance of failure to maintain population at or below the facility approved bed capacity for more than seven consecutive days or 15 days of any month in which the facility has had an average daily population greater than its approved bed capacity.
Whenever an overcrowded facility condition occurs and the conditions in subpart 7 exist, a facility shall have a written plan that requires the use of available contract per diem bed space in DOC-approved facilities within a 125-mile radius. The plan shall require the following.
The unavailability of space shall be documented at least once each day for continuing authority to exceed capacity.
Documentation shall set forth persons contacted, identification of the facility they represent, the date and time of contact, and a statement that the person advised that contract per diem space was not available.
A facility shall have a written plan that governs space arrangements and procedures to be followed in the event the number of inmates in the facility at 8:00 a.m. on any day and the number of inmates serving intermittent sentences scheduled for admission into the facility that day will exceed the facility's approved bed capacity.
MS s 241.021
23 SR 1834; 38 SR 523
December 20, 2013