33-108.101: Inmate Substance Abuse Testing
PURPOSE AND EFFECT: The purpose and effect of the proposed rule is to: clarify the testing procedures for those inmates who claim an inability to urinate in the presence of others; clarify identification procedures prior to conducting a substance abuse test; and to amend the language for clarity and grammatical accuracy.
SUMMARY: The proposed rule clarifies substance abuse testing procedures for inmates who claim an inability to urinate in the presence of others and clarifies the procedures necessary to ensure identification of an inmate prior to substance abuse testing. The language of the rule is generally amended for clarity and grammatical accuracy.
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.
The Office of the Inspector General shall be responsible for the development and implementation of the departments substance abuse testing program.
(1) Definitions.
(a) 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 DC1-824, Affidavit for Admission of Drug Use. Form DC1-824 is incorporated by reference in paragraph (3)(h) of this rule.
(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. No change.
2. For-cause drug testing (also referred to as reasonable suspicion drug testing) means drug testing based on a belief that an inmate is using or has used drugs or alcohol based on specific facts and reasonable inferences drawn from those facts in light of experience. Such facts and inferences shall be based upon:
a. through b. No change.
c. Evidence or intelligence reports indicating that an inmate has used, possessed, sold, solicited, or transferred drugs or alcohol.
3. through 5. No change.
6. A copy of Form DC6-210, Incident Report, shall be attached to the facilitys copy of 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) No change.
(c) Substance Abuse Program Testing. Inmates participating in substance abuse programs will be subject to substance abuse testing as a condition of the programs program.
(3) Procedures.
(a) Chain of Custody.
1. At a minimum, the Chain of Custody Form must include inmate and tester identification, initialed 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 laboratorys responsibility to maintain a chain of custody throughout the testing process.
2. 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 provided shall be noted.
3. through 4. No change.
(b) Specimen Collection Procedures.
1. The tester shall ensure that all urine specimens are collected in accordance with department procedures. All collections shall be performed under direct observation, where the tester directly observes the voiding of urine into the specimen cup, unless the inmate has been placed in a dry cell. Direct observation may also be accomplished through use of mirrors strategically mounted in the collection rest room.
2. Under no circumstances is direct observation of an inmate by a tester of the opposite sex allowed.
3. A female inmate shall not be required to provide a urine specimen during her menstrual cycle.
4. Prior to collecting a urine specimen, the The tester shall ensure that there is positive inmate identification by observing the inmate, confirming his or her prior to collecting the inmates urine specimen. Sight, name and, DC number, and examining the examination of an inmates picture identification card shall provide positive identification of the inmate selected for drug testing.
5. through 6. No change.
7. The inmate is expected to provide a minimum of 30 ml of urine. If the inmate provides less than this amount, the tester shall again attempt to collect an adequate specimen. If the inmate cannot immediately provide an adequate specimen, then the procedure outlined in subparagraph (3)(b)8. below shall apply.
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 DC1-823, Acknowledgement of Beverage Form, shall be completed. Form DC1-823 DCI-823 is incorporated by reference in paragraph (3)(h) of this rule. 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. No change.
10. Inmates who have adulterated their urine specimen by ingesting substances, as established by the on-site specimen adulteration testing product, shall be detained in the presence of the tester or placed in a dry cell for a period not to exceed one hour. During that time, the inmate shall not be allowed to consume any water or other beverage. If after the one 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. 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 DC1-823, Acknowledgement of Beverage Form, 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. No change.
2. The inmate shall remove the contents of his or her pockets and his or her shirt, shoes, pants, and hat, and the contents of his or her pockets. The inmate shall be thoroughly searched prior to entering the dry cell to prevent him or her from using any adulterants such as bleach or cleanser to alter the specimen.
3. 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) If an inmate claims an inability to urinate in front of or in the presence of others, the tester shall collect the urine specimen under the conditions outlined in subparagraphs (3)(c)1.-6. In this circumstance, the inability to urinate is not treated as a medical condition, and the officer does not need to 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.
(e) Testing of urine specimens.
1. through 4. No change.
5. Negative test results. The tester shall inform the inmate of the negative test results of the on-site testing device. The tester shall record all negative test results in on the departments electronic database. The tester will then dispose of the remaining specimen, specimen cup, and testing device. All forms shall be retained in accordance with state law and rules governing the retention of records.
6. No change.
a. If the inmate chooses to sign Form DC1-824, the testing officer shall complete the affidavit form and have the inmate swear to its content, with the officer witnessing the inmates signature. The inmate will be placed in into administrative confinement, and a disciplinary report shall be written. The signed Form DC1-824 will be attached to the disciplinary report to be used as evidence in the disciplinary report hearing.
b. No change.
c. If the inmate does not sign Form DC1-824, the following steps shall be taken:
i. through ii. No change.
iii. The tester shall then prepare the urine specimen for shipment, by a commercial carrier, to the designated outside laboratory for confirmation testing.
iv. No change.
7. 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 following the manufacturers testing protocols. If the initial result of the on-site testing device is positive, and the inmate declines to sign Form DC1-824, Affidavit for Admission of Drug Use, then 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 paragraph (3)(b), specimen collection procedures, and paragraph (3)(e) above, testing of urine specimens.
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 his designee. Form DC1-827, Reasonable Suspicion Testing Tracking Form, shall be utilized for this purpose. Form DC1-827 is incorporated by reference in paragraph (3)(h) of this rule.
(g) Record keeping. Each facility shall keep all records pertaining to the testing program. This includes the drug testing list and results, Chain of Custody forms, laboratory confirmation reports, and inventory control logs. All records shall be kept in accordance with state law and rules regarding retention of records.
(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, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500.
1. Form DC1-823, Acknowledgement of Beverage, effective date February 5, 2001.
2. Form DC1-824, Affidavit for Admission of Drug Use, effective date February 5, 2001.
3. Chain of Custody Form, effective date February 5, 2001, is a vendor form that may be obtained directly from the vendor or through the Office of the Inspector General, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500.
4. Form DC1-827, Reasonable Suspicion Testing Tracking Form, effective date February 19, 2007.
Rulemaking Authority 944.09, 944.472, 944.473 FS. Law Implemented 944.09, 944.472, 944.473 FS. HistoryNew 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,________.
