[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 4984 Introduced in Senate (IS)]
<DOC>
116th CONGRESS
2d Session
S. 4984
To report data on COVID-19 immigration detention facilities and local
correctional facilities that contract with U.S. Immigration and Customs
Enforcement, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
December 9, 2020
Ms. Warren (for herself, Mr. Booker, Mr. Markey, Mr. Van Hollen, Mr.
Sanders, Mr. Blumenthal, Mr. Durbin, Mr. Merkley, Ms. Baldwin, Ms.
Klobuchar, Ms. Hirono, Mr. Wyden, Mr. Casey, Ms. Cortez Masto, and Ms.
Rosen) introduced the following bill; which was read twice and referred
to the Committee on Homeland Security and Governmental Affairs
_______________________________________________________________________
A BILL
To report data on COVID-19 immigration detention facilities and local
correctional facilities that contract with U.S. Immigration and Customs
Enforcement, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``COVID-19 in Immigration Detention
Data Transparency Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) CBP detention facility.--The term ``CBP detention
facility'' means any facility used by U.S. Customs and Border
Protection to detain noncitizens.
(2) CDC director.--The term ``CDC Director'' means the
Director of the Centers for Disease Control and Prevention.
(3) Contract detention facility.--The term ``contract
detention facility'' means any facility used for the detention
of noncitizens that is operated by a government agency or a
private entity that has contracted with U.S. Immigration and
Customs Enforcement, U.S. Customs and Border Protection, or the
Office of Refugee Resettlement to provide such detention
services, including service processing centers, juvenile
detention facilities, family residential centers, facilities
holding noncitizens awaiting removal, and similar facilities
operating under an intergovernmental service agreement with any
of such Federal agencies, including intergovernmental
agreements with the United States Marshals Service.
(4) COVID-19.--The term ``COVID-19'' means the 2019 novel
coronavirus disease caused by the SARS-CoV-2 virus.
(5) COVID-19 diagnostic test.--The term ``COVID-19
diagnostic test'' means a test--
(A) that is an in vitro diagnostic product (as
defined in section 809.3 of title 21, Code of Federal
Regulations) for the detection of SARS-CoV-2; and
(B) the administration of which--
(i) is approved, cleared, or authorized
under section 510(k), 513, 515, or 564 of the
Federal Food, Drug, and Cosmetic Act (21 U.S.C.
360(k), 360c, 360e, 360bbb-3);
(ii) the developer has requested, or
intends to request, emergency use authorization
under section 564 of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. 360bbb-3), unless
and until the emergency use authorization
request under such section 564 has been denied
or the developer of such test does not submit a
request under such section within a reasonable
timeframe;
(iii) is developed in and authorized by a
State that has notified the Secretary of Health
and Human Services of its intention to review
tests intended to diagnose COVID-19; or
(iv) is another test that the Secretary
determines appropriate in guidance.
(6) COVID-19 emergency data collection period.--The term
``COVID-19 emergency data collection period'' means the period
beginning on the date of enactment of this Act and ending on
the date that is 1 year after the date on which the public
health emergency declaration under section 319 of the Public
Health Service Act (42 U.S.C. 247d), with respect to COVID-19,
terminates.
(7) Facility staff.--The term ``facility staff'' includes
all individuals who work in a detention facility, including any
individual who regularly reports for work within the detention
facility, regardless of the actual employer of such individual.
(8) ICE detention facility.--The term ``ICE detention
facility'' means any facility used by U.S. Immigration and
Customs Enforcement to detain noncitizens, including service
processing centers.
(9) ORR contracted facility or program.--The term ``ORR
contracted facility or program'' means any facility or program
in which unaccompanied noncitizen children are in the care and
custody of the Department of Health and Human Services.
(10) Public health emergency.--The term ``public health
emergency'' means--
(A) a national emergency involving Federal primary
responsibility determined to exist by the President
under section 501(b) of the Robert T. Stafford Disaster
Relief and Emergency Assistance Act (42 U.S.C. 5191(b))
with respect to a communicable disease;
(B) a national emergency declared by the President
under sections 201 and 301 of the National Emergencies
Act (50 U.S.C. 1621 and 1631) with respect to a
communicable disease;
(C) a national public health emergency declared by
the Secretary of Health and Human Services under
section 319 of the Public Health Service Act (42 U.S.C.
247d); or
(D) a global pandemic declared by the World Health
Organization.
SEC. 3. COVID-19 DATA COLLECTION REQUIREMENTS.
(a) Federal Detention Facilities.--The Director of U.S. Immigration
and Customs Enforcement, the Commissioner of U.S. Customs and Border
Protection, the Director of the Office of Refugee Resettlement, and any
senior official acting in, or performing the duties of, any such
position shall, during the COVID-19 emergency data collection period--
(1) post daily updates on the public website of the
applicable agency containing the information described in
section 5 with respect to staff working at ICE detention
facilities, CBP detention facilities, or ORR contracted
facilities or programs, respectively, and noncitizens detained
at such facilities or served by such programs;
(2) archive, on a weekly basis, the data described in
paragraph (1) so that it remains publicly accessible and in a
machine readable format; and
(3) beginning not later than the earlier of the date that
is 14 days after the date on which the CDC Director publishes
the guidance required under section 4(a) or 45 days after the
date of the enactment of this Act, submit weekly reports to the
CDC Director containing the information described in section 5.
(b) Contract Detention Facilities.--
(1) In general.--Beginning not later than the earlier of
the date that is 14 days after the date on which the CDC
Director publishes the guidance required under section 4(a) or
45 days after the date of the enactment of this Act, the head
of each contract detention facility shall--
(A) submit weekly reports to the Federal agency
with which the facility is under contract and the
public health authority of the State in which the
facility is located containing the data described in
section 5 with respect to staff working at such
facility and noncitizens detained at such facility;
(B) post weekly updates containing the data
described in subparagraph (A) on the public website of
the facility, if the facility has a public website, in
a machine readable format, and archive prior updates so
that they remain publicly accessible; and
(C) submit weekly reports containing the data
referred to in subparagraph (A) to--
(i) the Immigration Detention Ombudsman
designated pursuant to section 405 of the
Homeland Security Act of 2002 (6 U.S.C. 205);
and
(ii) the Office for Civil Rights and Civil
Liberties of the Department of Homeland
Security.
(2) Submission of information to the cdc.--Not later than
24 hours after a Federal agency receives the data described in
paragraph (1), the head of such agency shall--
(A) submit such data to the CDC Director; and
(B) post such data to the public website of the
agency, which shall be archived weekly and shall remain
publically accessible in a machine readable format.
(c) Use of Existing Appropriations.--
(1) Department of health and human services.--The
Department of Health and Human Services such use amounts
otherwise appropriated for the Office of Refugee Resettlement
to carry out its responsibilities under this section.
(2) U.S. immigration and customs enforcement.--U.S.
Immigration and Customs Enforcement shall use amounts otherwise
appropriated to the Custody Operations Account to carry out its
responsibilities under this section.
(3) U.S. customs and border protection.--U.S. Customs and
Border Protection shall use amounts otherwise appropriated to
the Procurement, Construction, and Improvements Account to
carry out its responsibilities under this section.
SEC. 4. CDC REPORTS.
(a) Guidance.--Not later than 30 days after the date of enactment
of this Act, the CDC Director shall issue guidance for immigration
detention facilities regarding--
(1) the categories of data required to be reported under
this Act; and
(2) how the CDC Director will determine whether a Federal
or State agency is in compliance with the requirements under
this Act.
(b) Publication on Website.--
(1) In general.--Not later than 7 days after data is
reported to the Centers for Disease Control and Prevention
pursuant to section 3, the CDC Director shall make such data
available to the public on the website of the Centers for
Disease Control and Prevention, including all data reported by
U.S. Immigration and Customs Enforcement, U.S. Customs and
Border Protection, and the Office of Refugee Resettlement.
(2) Weekly archival.--The data referred to in paragraph (1)
shall be archived weekly and shall remain publically accessible
in a machine readable format.
(c) Reports to Congress.--Not later than 60 days after the date of
the enactment of this Act, and monthly thereafter during the COVID-19
emergency data collection period, the CDC Director shall submit a
report to Committee on Health, Education, Labor, and Pensions of the
Senate, the Committee on the Judiciary of the Senate, the Committee on
Homeland Security of the House of Representatives, and the Committee on
the Judiciary of the House of Representatives that--
(1) summarizes the information submitted by U.S.
Immigration and Customs Enforcement, U.S. Customs and Border
Protection, the Office of Refugee Resettlement, and State
public health authorities pursuant to section 3; and
(2) analyzes the trends and patterns of the disease
outbreak and the care provided in immigration detention
facilities and contracted facilities.
SEC. 5. COVID-19 DATA.
(a) In General.--The data described in this section is the
following data with respect to each ICE, CBP, ORR, and contract
detention facility:
(1) Testing numbers.--Data related to COVID-19 diagnostic
testing by such facilities, including cumulative and new (since
the previous weekly report) counts of--
(A) the number of detained noncitizens tested for
COVID-19, including the dates on which such tests were
administered, disaggregated by--
(i) first-time COVID-19 diagnostic tests
and retests; and
(ii) symptomatic and asymptomatic;
(B) the number of detained noncitizens who have
requested COVID-19 testing, including the number of
such requests that were denied and the reasons for such
denials;
(C) the number of facility staff tested for COVID-
19, disaggregated by first-time COVID-19 diagnostic
tests and retests; and
(D) the COVID-19 diagnostic test developer and test
name for each COVID-19 diagnostic test conducted.
(2) Test results.--Data related to COVID-19 diagnostic
testing outcomes, including cumulative and new (since the
previous weekly report) counts of--
(A) the number of confirmed active cases of COVID-
19 among detained noncitizens, disaggregated by--
(i) first-time COVID-19 diagnostic tests
and retests; and
(ii) the COVID-19 diagnostic test developer
and test name for each COVID-19 diagnostic test
used to confirm each active case;
(B) the number of confirmed negative cases of
COVID-19 among detained noncitizens, disaggregated--
(i) by first-time COVID-19 diagnostic tests
and retests; and
(ii) the COVID-19 diagnostic test developer
and test name for each COVID-19 diagnostic test
used to confirm each negative case;
(C) the number of confirmed active cases of COVID-
19 among detention facility staff, disaggregated by--
(i) first-time COVID-19 diagnostic tests
and retests; and
(ii) the COVID-19 diagnostic test developer
and test name for each COVID-19 diagnostic test
used to confirm each active case;
(D) the number of confirmed negative cases of
COVID-19 among detention facility staff, disaggregated
by--
(i) first-time COVID-19 diagnostic tests
and retests; and
(ii) the COVID-19 diagnostic test developer
and test name for each COVID-19 diagnostic test
used to confirm each negative case;
(E) the number of COVID-19 diagnostic tests pending
results, disaggregated by detained noncitizens and
detention facility staff;
(F) the average time between testing a detained
person for COVID-19 and receiving the results of the
COVID-19 diagnostic test; and
(G) the average time between testing a detention
facility employee for COVID-19 and receiving the
results of the COVID-19 diagnostic test.
(3) Case outcomes.--COVID-19 case outcomes, including
cumulative and new (since the previous report) counts of--
(A) the number of detained noncitizens hospitalized
for a case of COVID-19, including the locations of the
hospitals at which the noncitizens are receiving
treatment;
(B) the number of detained noncitizens who have
recovered from COVID-19;
(C) the number of detained noncitizens currently in
quarantine and the number of detained noncitizens in
medical isolation for infection with or exposure to
COVID-19;
(D) the number of detained noncitizens who have
completed quarantine and the number of detained
noncitizens who have been released from medical
isolation;
(E) the number of detained noncitizens identified
as having one or more COVID-19 risk factors;
(F) the number of noncitizens who have been
released from detention because of one or more COVID-19
risk factors, disaggregated by their applicable risk
factor;
(G) the number of detained noncitizens with active
COVID-19 cases in the previous weekly report who are
not included in the present report, disaggregated by
the specific reason for such exclusion, including
release, negative COVID-19 test, transfer, and absence
of COVID-19 symptoms;
(H) the number of detained noncitizens who have
died from COVID-19;
(I) the number of detained noncitizens who died
after testing positive for COVID-19, but the official
cause of death was not COVID-19;
(J) the number of detention facility staff
hospitalized for a case of COVID-19;
(K) the number of detention facility staff who have
recovered from COVID-19; and
(L) the number of detention facility staff who have
died from a case of COVID-19.
(4) General medical attention.--The number of detained
noncitizens who have requested general medical attention,
including the number of such requests that were denied and the
reasons for such denials.
(5) Daily population.--Average daily population of detained
noncitizens for the week preceding the COVID-19 emergency data
collection period and for all weeks during such period.
(6) Transferred noncitizens.--Data related to the COVID-19
testing, results, and case outcomes (at the time of release) of
noncitizens who were transferred between detention facilities
during the reporting period, including--
(A) the number of all individuals who were
transferred, including--
(i) the dates on which such transfers
occurred;
(ii) the number of such noncitizens who
were tested and received a result before their
transfer; and
(iii) the number of such noncitizens who
were not tested or did not receive a result
before their transfer;
(B) the purposes of such transfers;
(C) the dates on which COVID-19 testing occurred
during the transfer process;
(D) the number of transferees who tested positive
at any point during the transfer process; and
(E) the number of positive COVID-19 cases in the
transferring facility and in the arriving facility at
the time of each such transfer.
(7) Released noncitizens.--Data related to the COVID-19
testing, results, and case outcomes (at the time of release) of
noncitizens who were released from detention, and juvenile
noncitizens who were released from the custody of the
Department of Health and Human Services, during the reporting
period, disaggregated by the type of release, and including--
(A) individuals released to alternatives to
detention programs as a result of the COVID-19 public
health emergency; and
(B) any recent positive COVID-19 tests and
referrals to external medical care.
(8) Removed noncitizens.--Data related to the COVID-19
testing, results, and case outcomes (at the time of removal or
expulsion) of noncitizens who were deported from an ICE, CBP,
ORR, or contract detention facility during the reporting
period, including--
(A) any recent positive COVID-19 tests and
referrals to external medical care;
(B) the number of noncitizens removed or expelled
from the United States;
(C) the number of such noncitizens who were tested
and received a result before their removal or
expulsion; and
(D) the number of such noncitizens who were not
tested or did not receive a result before their removal
or expulsion.
(b) Disaggregation of Data.--
(1) In general.--The data described in subsection (a) shall
be disaggregated by sex, sexual orientation, gender identity,
age, race, ethnicity, disability, last known place of
residence, location at which the individual is being detained,
nationality, and statutory authority for detention.
(2) Exclusion of individuals incarcerated for
nonimmigration reasons at contract detention facilities.--Data
regarding individuals incarcerated at contract detention
facilities for nonimmigration reasons shall be excluded from
the data described in subsection (a).
(c) Detention Period.--The data described in subsection (a) with
respect to detained noncitizens who are infected with COVID-19 shall
include, to the extent practicable, the period of their detention.
SEC. 6. PRIVACY PROTECTIONS.
(a) In General.--Any data collected, stored, received, or published
under this Act--
(1) shall be collected, stored, received, or published in a
manner that protects the privacy of individuals whose
information is included in such data;
(2) shall be de-identified or anonymized in a manner that
protects the identity of all individuals whose information is
included in such data;
(3) shall comply with privacy protections provided under
the regulations promulgated under section 264(c) of the Health
Insurance Portability and Accountability Act of 1996 (42 U.S.C.
1320d-2 note); and
(4) shall be limited in use for the purpose of public
health and be protected from all other internal use by any
entity that collects, stores, or receives the data, including
use of such data in determinations of eligibility (or continued
eligibility) in health plans, and from any other inappropriate
uses.
(b) Restriction on Use of COVID-19 Status in Immigration
Proceedings.--The Government may not use a noncitizen's positive COVID-
19 test, a noncitizen's treatment for COVID-19 symptoms, or the state
of the COVID-19 pandemic in the noncitizen's country of origin as
evidence against the noncitizen in any immigration proceeding,
including--
(1) a proceeding to determine if the noncitizen is a public
charge; and
(2) proceedings involving asylum, withholding of removal,
and protection under the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, done at
New York December 10, 1984.
SEC. 7. COVID-19 SAFETY PROTOCOLS AND PRACTICES.
(a) In General.--Not later than 30 days after the date of the
enactment of this Act, the Director of U.S. Immigration and Customs
Enforcement, the Commissioner of U.S. Customs and Border Protection,
the Director of the Office of Refugee Resettlement, and any senior
official acting in, or performing the duties of, any such position
shall submit a report to the congressional committees referred to in
section 4(c) that identifies, for each detention facility under the
jurisdiction of the applicable agency head, including contract
detention facilities, the protocols and practices for protecting
detainees from exposure to the novel coronavirus (SARS-CoV-2),
including--
(1) the health standards at the facility, including--
(A) the standards for transfer to hospital or other
specialized care;
(B) the procedure for the detained person to
request and obtain a COVID-19 test and associated
results; and
(C) detainee access to information about the
facility's COVID-19 plans and protocols;
(2) the medical care provided to detainees, including--
(A) the specific efforts to cohort smaller groups
of detained people;
(B) the specific efforts to provide humane medical
isolation to symptomatic people, and separately, people
who have tested positive for COVID-19; and
(C) the standards for clinical monitoring of
symptomatic and COVID-19 positive detained persons; and
(3) the sanitation practices at the facility, including the
frequency and amount of detainees' access to soap and masks.
(b) Notification of Outbreak or Exposure.--Each detention facility
shall create, share, and enforce a process for notifying anyone who has
recently entered or visited such facility of any COVID-19 outbreak or
exposure at such facility.
SEC. 8. ACCESS TO LEGAL COUNSEL.
Not later than 30 days after the date of the enactment of this Act,
and monthly thereafter, the Director of U.S. Immigration and Customs
Enforcement, the Commissioner of U.S. Customs and Border Protection,
the Director of the Office of Refugee Resettlement, the head of each
contract detention facility, and any senior official acting in, or
performing the duties of, any such position shall submit a report to
the congressional committees referred to in section 4(c) that
identifies, for each detention facility for which he or she is
responsible--
(1) the efforts made to ensure that each noncitizen
detained in such facility has access to legal counsel;
(2) if any detained noncitizen does not have access to
legal counsel, the changes being made to ensure universal
access to legal counsel;
(3) the number of telephones are available to detainees;
(4) the number of detainees who have used the free
telephone call minutes available to them;
(5) the number of detainees who have access to video
conference technology with their lawyers and the number of
detainees have used video conference technology to communicate
with their lawyers;
(6) the number of computers or internet-enabled portable
electronic devices available to detainees; and
(7) the process for notifying the public when the facility
is locked down because of an outbreak, including the
accommodations made during such lockdowns to provide detainees
with increased access to telephones or videoconferencing.
SEC. 9. RIGHT OF DETAINED NONCITIZENS TO ACCESS TEST RESULTS.
The Director of U.S. Immigration and Customs Enforcement, the
Commissioner of U.S. Customs and Border Protection, the Director of the
Office of Refugee Resettlement, the head of each contract detention
facility, and any senior official acting in, or performing the duties
of, any such position shall ensure that each detained noncitizen
receives the results of, and any medical records related to, any COVID-
19 diagnostic test administered to the noncitizen, in the noncitizen's
preferred language, and in a private and confidential manner, not later
than 24 hours after such results become available.
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