[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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