The purpose and effect of the proposed rule is to limit to two hours the amount of time inmates with medical conditions or a claimed inability to urinate in front of others may spend in a dry cell in order to produce a urine sample and to limit to ...

DEPARTMENT OF CORRECTIONS

RULE NO: RULE TITLE
33-108.101: Inmate Substance Abuse Testing
PURPOSE AND EFFECT: The purpose and effect of the proposed rule is to limit to two hours the amount of time inmates with medical conditions or a claimed inability to urinate in front of others may spend in a dry cell in order to produce a urine sample and to limit to one hour the amount of time inmates who have produced an adulterated sample may spend in a dry cell in order to produce an unadulterated sample.
SUMMARY: The proposed rule limits to two hours the amount of time inmates with medical conditions or a claimed inability to urinate in front of others may spend in a dry cell in order to produce a urine sample and to limit to one hour the amount of time inmates who have produced an adulterated sample may spend in a dry cell in order to produce an unadulterated sample. The proposed rule also clarifies the distinction between the on-site substance abuse testing device and the on-site specimen adulteration testing product.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: The agency has determined that this rule will not have an impact on small business. A SERC has not been prepared by the agency.
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.
SPECIFIC AUTHORITY: 944.09, 944.472, 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 FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Kendra Lee Jowers, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500

THE FULL TEXT OF THE PROPOSED RULE IS:

33-108.101 Inmate Substance Abuse Testing.

(1) Definitions.

(a) through (d) No change.

(e) Test refusal – failure on the part of an inmate to fully comply with the department’s substance abuse testing procedures, which includes failing to provide a valid urine specimen, attempting to alter his or her urine specimen with adulterants, as established by an on-site specimen adulteration validity testing product device, and using substitute urine in makeshift devices or objects. Any inmate who refuses to comply with the testing process or fails to provide a valid specimen, within the specified time frames as stipulated in subparagraphs (3)(b)8. and (3)(b)10., shall be given a disciplinary report in accordance with Rules 33-601.301-.314, F.A.C.

(f) through (2) No change.

(3) Procedures.

(a) No change.

(b) Specimen Collection Procedures.

1. through 8. No change.

9. After the inmate has voided a urine specimen into the cup, the tester will visually inspect the urine specimen to make sure that the specimen appears to be valid and unadulterated. If the tester suspects that the specimen has been adulterated based upon observation, experience, or prior training, the tester will utilize the on-site specimen adulteration validity testing product device in front of the inmate following the manufacturer’s testing protocols. If a positive result is received on the on-site specimen adulteration validity testing product device indicating that the urine specimen was adulterated, the adulterated specimen will not be accepted as a valid specimen and will be discarded. The inmate will be required to submit a valid and unadulterated specimen. If the inmate cannot submit a valid and unadulterated specimen, then the procedure outlined below in subparagraph (3)(b)10. shall apply.

10. Inmates who have adulterated their urine specimen by ingesting substances, as established by the on-site specimen adulteration testing product device, shall be detained in the presence of the tester or placed in a “dry cell” for a period not to exceed one two (2) hours. During that time, the inmate shall not be allowed to consume any water or other beverage. If, after the one two hour period, an inmate still fails to submit an unadulterated valid 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.

11. through 12. No change.

(c) Upon notification from an inmate that he 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 which 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. The inmate shall be informed that he or she will be placed in a dry cell until he or she can provide a valid urine specimen, not to exceed two hours. The inmate shall be issued a hospital or other type privacy gown during the time that he or she is housed in the dry cell.

2. through 6. No change.

7. If after the two hour period an inmate fails to submit a valid 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.

(d) through (h) No change.

Rulemaking Specific Authority 944.09, 944.472, 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,________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Gene Hatcher, Deputy Inspector General
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Walter A. McNeil, Secretary
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: May 26, 2009
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: June 5, 2009