The purpose and effect of the rule amendment is to amend the rule to reflect the Office of Institutions will be responsible for inmate substance abuse testing and to change the form numbers.

 

DEPARTMENT OF CORRECTIONS

RULE NO.:RULE TITLE:
33-602.2035Inmate Substance Abuse Testing
PURPOSE AND EFFECT: The purpose and effect of the rule amendment is to amend the rule to reflect the Office of Institutions will be responsible for inmate substance abuse testing and to change the form numbers.
SUMMARY: The rule is amended to reflect the Office of Institutions is responsible for inmate substance abuse testing and that form numbers are changed.
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 s. 120.541(2)(a), FS.
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, 944.473 FS.
LAW IMPLEMENTED: 944.09, 944.472, 944.473 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: LaDawna Fleckenstein, 501 South Calhoun Street, Tallahassee, Florida 32399-2500

THE FULL TEXT OF THE PROPOSED RULE IS:

33-602.2035 Inmate Substance Abuse Testing.

The Office of Institutions Office of the Inspector General shall be responsible for the development and implementation of the department’s substance abuse testing program.

(1) Definitions.

(a)  No change. 

(b) Tester – a correctional officer who has been certified as competent by the manufacturer of the onsite testing device and trained by certified training personnel, affiliated with the department, on the proper procedures for collecting urine specimens, including the completion and maintenance of Form DC6-2067, the Chain of Custody Form, the handling and disposing of urine specimens, and the administration and interpretation of the on-site testing device. All testing personnel must be approved by the Office of Institutions Office of the Inspector General.

(c)  No change. 

(d) Chain of Custody Form – the form used to document the identity and integrity of an inmate’s specimen from time of collection until the specimen is prepared for shipment to a designated outside laboratory for confirmation testing. This form will be provided by the laboratory conducting confirmation tests on specimens that had a positive result on the on-site testing device. Form DC6-2067, Chain of Custody Form is hereby incorporated by reference. Copies of  the form are available directly from the vendor or from the Forms Control Administrator, 501 S. Calhoun Street, Tallahassee, Florida 32399-2500.  The effective date of the form is 11-28-10.

(e) through (f)  No change. 

(g) Confirmation Testing – testing conducted by an outside contract laboratory using gas chromatography coupled with mass spectrometry (GC/MS) when on-site results of a test are positive and the inmate refuses to sign Form DC6-2065 DC1-824, Affidavit for Admission of Drug Use. Form DC6-2065 DC1-824 is hereby incorporated by reference in paragraph (3)(h) of this rule. Copies of  the form are available from the Forms Control Administrator, 501 S. Calhoun Street, Tallahassee, Florida 32399-2500.  The effective date of the form is                      .

(h)  No change. 

(2) The Department of Corrections conducts the following types of inmate substance abuse testing:

(a) For-Cause or Reasonable Suspicion Testing.

1. Inmates suspected of involvement with drugs or alcohol shall be subject to for-cause testing upon order of the warden, the duty warden, the correctional officer chief of the facility, a designee of one of the above individuals, or the Office of Institutions Office of the Inspector General. An inmate should only be tested for a maximum of four drugs on a for-cause basis unless extenuating circumstances exist. For-cause tests will only be conducted on inmates who meet the criteria outlined in subparagraphs 2.a. through c. below.

2. through 4.  No change.

5. Upon approval of the warden, duty warden, correctional officer chief, their designees, or the Office of Institutions Office of the Inspector General, collection and testing procedures shall be conducted immediately pursuant to this rule.

6.  A copy of Form DC6-210, Incident Report, shall be attached to the facility’s copy of Form DC6-2067, the Chain of Custody Form for positive specimens sent to the laboratory for confirmation testing. Form DC6-210 is incorporated by reference in Rule 33-602.210, F.A.C.

(b) through (c)  No change.  

(3) Procedures.

(a) Chain of Custody.

1. At a minimum, Form DC6-2067, the Chain of Custody Form must include inmate and tester identification, initialed or signed by both the inmate and the tester, date and time of collection, type of test (i.e., random, for-cause, or substance abuse program participation), and identification of all individuals who had custody of the specimen from the time of collection until the specimen was prepared for shipment to the laboratory. Once the outside laboratory receives the specimen, it will become the laboratory’s responsibility to maintain a chain of custody throughout the testing process.

2. Form DC6-2067, The Chain of Custody Form allows for comments by the tester regarding any unusual observations. Any failure by the inmate to cooperate with the collection process and any unusual nature (e.g., discolored urine or urine containing foreign objects) of a specimen shall be noted.

3. The tester shall ensure that all collected urine specimens being sent to a designated outside laboratory for confirmation testing are properly labeled and sealed with a security label as provided on Form DC6-2067, the Chain of Custody Form. The tester shall also ensure that Form DC6-2067, the Chain of Custody Form for all collected urine specimens is completed in accordance with department procedures.

4. If an inmate is unable or unwilling to enter his or her initials or signature on Form DC6-2067, the Chain of Custody Form, the tester will make a notation in the comment section of the form and leave the space blank. The tester will not under any circumstances sign Form DC6-2067, the Chain of Custody Form for an inmate.

(b) Specimen Collection Procedures.

1. through 7.  No change.

8. An inmate who has not provided an adulterated urine specimen and who claims an inability to provide an adequate urine specimen shall be detained in the presence of the tester or other designated person for a period not to exceed 1 hour to provide an adequate specimen. During that time, the inmate shall be allowed to consume one cup (8 oz.) of water or other beverage every 1/2 hour, not to exceed a total of 2 cups during this time period, and Form DC6-2064 DC1-823, Acknowledgement of Beverage, shall be completed. Form DC6-2064 DC1-823 is hereby incorporated by reference in paragraph (3)(h) of this rule. Copies of  the form are available from the Forms Control Administrator, 501 S. Calhoun Street, Tallahassee, Florida 32399-2500.  The effective date of the form is                  .

If after the 1 hour period an inmate still fails to submit a valid adequate urine specimen, the inmate shall be considered to have refused to provide a urine specimen, and a disciplinary report shall be prepared in accordance with Rules 33-601.301-.314, F.A.C.

9. through 11.  No change.

12. If a urine specimen contains blood or appears to contain blood, the inmate who produced the specimen shall be referred immediately to the medical department for evaluation. If no valid reason exists for having blood in the specimen, the inmate will be required to provide another urine specimen. If the inmate cannot submit a urine specimen, the inmate shall be detained in the presence of the tester or other designated person for a period not to exceed 1 hour to provide an adequate specimen. During that time, the inmate shall be allowed to consume one cup (8 oz.) of water or other beverage every 1/2 hour, not to exceed a total of 2 cups during this time period, and Form DC6-2064 DC1-823, Acknowledgement of Beverage, shall be completed. If after the 1 hour period an inmate still fails to submit a valid adequate urine specimen, the inmate shall be considered to have refused to provide a urine specimen, and a disciplinary report shall be prepared in accordance with Rules 33-601.301-.314, F.A.C.

(c) Upon notification from an inmate that he or she is unable to urinate due to a medical condition, the officer shall verify with medical staff that the inmate possesses a specific medical condition or is taking medication that inhibits the inmate from urinating within the designated time frame. Upon receiving such verification, the inmate shall be given the opportunity to provide a urine specimen under the following conditions:

1. through 3.  No change.

4. The inmate shall be allowed to consume one cup (8 oz.) of water or other beverage every 1/2 hour, not to exceed a total of two cups during the time spent in the dry cell, and Form DC6-2064 DC1-823, Acknowledgement of Beverage Form, shall be completed.

5. through 7.  No change.

(d)  No change. 

(e) Testing of urine specimens.

1. through 6.  No change.

7. Positive test results. The tester shall inform the inmate of the positive results of the on-site testing device. The inmate will then be given the opportunity to sign Form DC6-2065 DC1-824, Affidavit for Admission of Drug Use.

a. If the inmate chooses to sign Form DC6-2065 DC1-824, the testing officer shall complete the affidavit form and have the inmate swear to its content, with the officer witnessing the inmate’s signature. The inmate will be placed in administrative confinement, and a disciplinary report shall be written. The signed Form DC6-2065 DC1-824 will be attached to the disciplinary report to be used as evidence in the disciplinary hearing.

b.  No change. 

c. If the inmate does not sign Form DC6-2065 DC1-824, the following steps shall be taken:

i. Once the urine specimen has been securely closed by the tester, the tester shall attach a security seal from Form DC6-2067, the Chain of Custody Form across the lid of the sample cup under the inmate’s observation.

ii. The tester shall instruct the inmate to place his or her initials on Form DC6-2067, the Chain of Custody Form verifying that the urine specimen was collected and sealed under the inmate’s observation and that the specimen cup identification is correct.

iii. through iv.  No change. 

8.  No change. 

(f) Other on-site testing device procedures.

1. Due to product limitations, it may become necessary to utilize other noninvasive on-site testing devices for alcohol testing. In such instances, the certified tester will utilize the on-site testing device in the presence of the inmate in accordance with the manufacturer’s testing protocols. If the initial result of the on-site testing device is positive, and the inmate declines to sign Form DC6-2065 DC1-824, Affidavit for Admission of Drug Use, a urine specimen will be obtained from the inmate and sent to a designated outside laboratory for confirmation testing in accordance with the procedures outlined in paragraphs (3)(b) and (3)(e) above.

2. All correctional facilities shall maintain a record of all reasonable suspicion substance abuse tests conducted. This record shall be maintained by the correctional officer chief or designee. Form DC6-2066 DC1-827, Reasonable Suspicion Testing Tracking, shall be utilized for this purpose. Form DC6-2066 DC1-827 is hereby incorporated by reference in paragraph (3)(h) of this rule. Copies of  the form are available from the Forms Control Administrator, 501 S. Calhoun Street, Tallahassee, Florida 32399-2500.  The effective date of the form is               .

(g)  No change. 

(h) Forms. The following forms referenced in this rule are hereby incorporated by reference. Copies of these forms, unless otherwise indicated, may be obtained from the Forms Control Administrator, 501 South Calhoun Street, Tallahassee, Florida 32399-2500.

1. Form DC1-823, Acknowledgement of Beverage, effective February 5, 2001.

2. Form DC1-824, Affidavit for Admission of Drug Use, effective February 5, 2001.

3. Chain of Custody Form, effective November 28, 2010, is a vendor form that may be obtained directly from the vendor or through the Office of the Inspector General, 501 South Calhoun Street, Tallahassee, Florida 32399-2500.

4. Form DC1-827, Reasonable Suspicion Testing Tracking Form, effective February 19, 2007.

Rulemaking Authority 944.09, 944.473 FS. Law Implemented 944.09, 944.472, 944.473 FS. History–New 2-8-00, Amended 2-5-01, Formerly 33-602.2045, Amended 7-2-02, 2-19-07, 7-29-08, 8-26-09, 2-10-10, 11-28-10, 1-11-12, Formerly 33-108.101, Amended___              .

NAME OF PERSON ORIGINATING PROPOSED RULE: James Upchurch, Assistant Deputy Secretary, Office of Institutions
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Kenneth S. Tucker, Secretary
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: 11-13-12
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: 9-21-12