[House Report 105-665]
[From the U.S. Government Publishing Office]
105th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 105-665
_______________________________________________________________________
CORRECTION OFFICERS HEALTH AND SAFETY ACT OF 1998
_______
July 31, 1998.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______________________________________________________________________
Mr. McCollum, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 2070]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 2070) to amend title 18, United States Code, to
provide for the mandatory testing for serious transmissible
diseases of incarcerated persons whose bodily fluids come into
contact with corrections personnel and notice to those
personnel of the results of the tests, and for other purposes,
having considered the same, report favorably thereon with
amendments and recommend that the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 1
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 3
Hearings......................................................... 3
Committee Consideration.......................................... 3
Vote of the Committee............................................ 4
Committee Oversight Findings..................................... 4
Committee on Government Reform and Oversight Findings............ 4
New Budget Authority and Tax Expenditures........................ 4
Committee Cost Estimate.......................................... 5
Constitutional Authority Statement............................... 5
Section-by-Section Analysis...................................... 5
Agency Views..................................................... 8
Changes in Existing Law Made by the Bill, as Reported............ 9
The amendments are as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Correction Officers Health and Safety
Act of 1998''.
SEC. 2. TESTING FOR HUMAN IMMUNODEFICIENCY VIRUS.
(a) In General.--Chapter 301 of title 18, United States Code, is
amended by adding at the end the following:
``Sec. 4014. Testing for human immunodeficiency virus
``(a) The Attorney General shall cause each individual convicted of a
Federal offense who is sentenced to incarceration for a period of 6
months or more to be tested for the presence of the human
immunodeficiency virus not earlier than 3 nor later than 4 months after
the commencement of that incarceration.
``(b) If the Attorney General has a well founded reason to believe
that a person sentenced to a term of imprisonment for a Federal
offense, or ordered detained before trial under section 3142(e), may
have intentionally or unintentionally transmitted the human
immunodeficiency virus to any officer or employee of the United States,
or to any person lawfully present in a correctional facility who is not
incarcerated there, the Attorney General shall, upon the request of the
affected officer, employee, or other person, cause the person who may
have transmitted the virus to be promptly tested for the presence of
such virus and communicate the test results as soon as practicable to
the person requesting that the test be performed and to the person
tested, if person tested so requests.
``(c) If the results of the test indicate the presence of the virus,
the Attorney General shall provide appropriate access for counselling,
health care, and support services to the affected officer, employee, or
other person, and the person tested.
``(d) The results of a test under this section are inadmissible
against the person tested in any Federal or State civil or criminal
case or proceeding.
``(e) Not later than one year after the date of enactment of this
section, the Attorney General shall make rules to implement this
section. Such rules shall require that the results of any test are
communicated only to a person requesting the test, to the person
tested, and, if the results of the test indicate the presence of the
virus, to the chief administrative officer of the correctional facility
in which the person tested is imprisoned or detained. Such rules shall
also provide for procedures designed to protect the privacy of a person
requesting that the test be performed and the privacy of the person
tested.''.
(b) Clerical Amendment.--The table of sections at the beginning of
chapter 301 of title 18, United States Code, is amended by adding at
the end the following new item:
``4014. Testing for human immunodeficiency virus.''.
(c) Guidelines for States.--Not later than one year after the date of
the enactment of this Act, the Attorney General, in consultation with
the Secretary of Health and Human Services, shall provide to the
several States proposed guidelines for the prevention, detection, and
treatment of incarcerated persons and correctional employees who have,
or may be exposed to, infectious diseases in correctional institutions.
Amend the title so as to read:
A bill to amend title 18, United States Code, to provide
for the testing of certain persons who are incarcerated or
ordered detained before trial, for the presence of the human
immunodeficiency virus, and for other purposes.
Purpose and Summary
H.R. 2070, the Corrections Officers Health and Safety Act,
is intended to protect corrections officers and others who work
with incarcerated persons from exposure to the human
immunodeficiency virus, commonly known as the HIV virus, which
causes the disease known as acquired immune deficiency syndrome
or AIDS. This bill requires the testing of all persons
convicted of a federal offense and sentenced to a period of
incarceration of six months or more within a specific period of
time after that incarceration has begun.
The bill also requires the testing of any inmate
incarcerated in the federal prison system, or any person who
has been ordered detained before trial, when there is reason to
believe that the person may have intentionally or
unintentionally transmitted the HIV virus to any Federal
government employee or other person lawfully present in a
federal correctional facility. Under the bill, whenever an
incident occurs that, under guidelines developed by the
Attorney General in conjunction with Secretary of Health and
Human Services, it is possible that an inmate or detained
person could have transmitted the HIV virus, the exposed person
may request that the inmate or detained person involved be
tested for the virus. The bill then requires that the test
results be communicated directly to the person requesting the
test be performed.
The bill also authorizes the test results be given to the
person tested, if that person requests. If the test is
positive, the results are also to be communicated to the chief
administrative officer, usually the warden, of the correctional
facility in which the person tested is imprisoned or detained.
Further, the bill requires that guidelines be developed to
protect the privacy of the person requesting the test and the
person tested.
The bill also requires the Attorney General to develop
model guidelines for states to follow to prevent, detect, and
treat infectious diseases in correctional facilities. The
Attorney General is to distribute these guidelines to the
States so that they can use them when developing their own
procedures for managing diseases in correctional settings.
Background and Need for the Legislation
The need for this legislation is simple. Drugs have now
been developed which can prevent the transmission of the HIV
virus after exposure to someone who carries the virus. The
drugs are effective in preventing transmission approximately 80
per cent of the time. However, for optimal effect, the drugs
must be administered within one to two hours after exposure and
no later than 24 to 36 hours after exposure. Also, these drugs
cause extremely unpleasant side effects in most persons. If a
corrections officer comes in contact with the blood of a
inmate, knowing the HIV status of the inmate will enable the
officer and his or her doctor to make a more informed decision
as to whether to undergo this course of treatment.
Unfortunately, some inmates refuse to be tested when
corrections officials request. This bill will require that they
be tested.
Hearings
The Committee's Subcommittee on Crime held one day of
hearings on H.R. 2070 on March 26, 1998. Testimony was received
from four witnesses, representing three organizations, with no
additional material submitted.
Committee Consideration
On May 7, 1998, the Subcommittee on Crime met in open
session and ordered favorably reported the bill H.R. 2070, as
amended, by voice vote, a quorum being present. On July 21,
1998, the Committee met in open session and ordered favorably
reported the bill H.R. 2070, with amendment, by voice vote, a
quorum being present.
Vote of The Committee
Mr. Watt offered an amendment that would have deleted that
portion of the bill which allows corrections officers and other
persons to require an inmate or detained person to be tested
for the HIV virus following an incident during which the HIV
virus could have been transmitted. The amendment would have
placed the decision to test an inmate or detained person solely
with the Attorney General. The amendment was defeated by a roll
call vote of 5 to 20.
AYES NAYS
Mr. Conyers Mr. Hyde
Mr. Scott Mr. McCollum
Mr. Watt Mr. Gekas
Ms. Jackson Lee Mr. Coble
Ms. Waters Mr. Smith
Mr. Canady
Mr. Goodlatte
Mr. Buyer
Mr. Chabot
Mr. Barr
Mr. Jenkins
Mr. Hutchinson
Mr. Pease
Mr. Rogan
Ms. Bono
Mr. Frank
Mr. Delahunt
Mr. Rothman
Mr. Bryant
Mr. Inglis
Committee Oversight Findings
In compliance with clause 2(l)(3)(A) of rule XI of the
Rules of the House of Representatives, the Committee reports
that the findings and recommendations of the Committee, based
on oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform and Oversight Findings
No findings or recommendations of the Committee on
Government Reform and Oversight were received as referred to in
clause 2(l)(3)(D) of rule XI of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 2(l)(3)(B) of House Rule XI is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Committee Cost Estimate
In compliance with clause 7(a) of rule XIII of the Rules of
the House of Representatives, the Committee believes that the
cost incurred in carrying out H.R. 2070 would be no more than
$400,000 per year.
Constitutional Authority Statement
Pursuant to rule XI, clause 2(l)(4) of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in Article I, section 8 of the Constitution.
Section-by-Section Analysis
Sec. 1. Short title
Section 1 states the short title of the bill as the
``Corrections Officers Health and Safety Act of 1998.''
Sec. 2. Testing for human immunodeficiency virus
This section adds new section 4014 to title 18 of the
United States Code to provide for the testing of certain
persons who are incarcerated or ordered detained before trial
for the presence of the human immunodeficiency virus, more
commonly referred to as the HIV virus. New section 4014
contains five subsections.
Subsection (a) of new section 4014 requires the Attorney
General to test all persons convicted of a federal offense and
sentenced to a period of incarceration of six months or more
for the presence of the HIV virus. This provision applies
regardless of whether the incarcerated person is incarcerated
in a federal facility or in a state or privately operated
facility under contract with the Federal government. The test
is to be administered after a person has been incarcerated for
at least three months and before the person has been
incarcerated for four months. The purpose of this provision is
to help ensure that the test will detect the presence of the
virus in a person who contracted the virus immediately prior to
their incarceration. The Committee has been informed that
existing tests will not reliably detect the virus until after
three months following contraction.
Subsection (b) provides that, in certain circumstances, an
officer or employee of the Federal government may request that
a person imprisoned for a federal offense, or a person who has
been ordered detained pending trial for a federal offense
pursuant to 18 U.S.C. Sec. 3142(e), be tested for the HIV
virus. The circumstances under which such a test may be
requested are to be specified by the Attorney General through
the issuance of regulations to implement section 4014.
Generally speaking, however, the Committee expects the Attorney
General to allow these tests to be requested in situations
where the officer or employee was exposed to the bodily fluids
of an incarcerated or detained person in such a manner that
transmission of the virus to the officer or employee could have
occurred had the incarcerated or detained person been infected.
The Committee expects that the Attorney General will consult
with the Secretary of Health and Human Services in developing
these regulations.
In such a situation, the officer or employee may request
that the incarcerated or detained person be tested for the HIV
virus. The bill requires that the test be performed promptly.
The Committee expects that the test would be administered
immediately and, barring extreme circumstances, no later than
48 hours from the time the request is made. The test results
are to be communicated as soon as practicable to the person
requesting the test. If the person tested requests, the test
results are to be communicated to them as well.
In addition to officers and employees of the United States,
other persons who were lawfully present in a correctional
facility and who were involved in an incident as described in
the regulations promulgated by the Attorney General may also
request that the inmate or detained person involved be tested.
This provision is designed to benefit state and local law
enforcement officials who might be present in a federal
facility as well as visitors to the facility. This provision
does not apply to inmates or persons detained in a facility
while awaiting trial.
In some cases, a person required to be tested under this
bill may be incarcerated or detained in a state or privately
operated facility. In such a case, the person may be tested by
state officials pursuant to an agreement with the Federal
government which may be, but need not be, the contract under
which the inmate or detained person is housed in the non-
Federal facility. If no such arrangement has or can be made,
the Committee expects that the Attorney General will cause the
person to be tested by Bureau of Prisons or Public Health
Service employees in the non-federal facility or will transport
the person to a federal facility and test them there.
Subsection (c) of new section 4014 requires that in the
event a test is positive, the Attorney General is to provide
appropriate access for counseling, health care, and support
services to the affected officer, employee, or other person,
and the person tested. In the case of incarcerated or detained
persons, the Committee expects that the Attorney General will
provide appropriate health care, including medical and
psychological care, to the inmate either through Bureau of
Prisons and Public Health Service employees, or through
contractual arrangements with civilian health care providers.
In the case of officers and employees of the Federal
government, the Committee expects that the Attorney General
will make available health care to augment, if needed, care
that the officer or employee receives through their own private
health care providers. In the case of other persons to whom the
statute relates, the Attorney General is to provide information
about national hotlines, health care referral centers, and
other sources of information concerning treatment for HIV and
AIDS.
The Committee further expects that when a person who has
tested positive for the HIV virus is released from
incarceration or, in the event a person ordered detained before
trial is released from that detention, the person will be
provided with information concerning counseling, health care,
and support services that are available to them with respect to
HIV and AIDS. The Committee does not expect Bureau of Prisons
personnel to attempt to elicit from the person tested
information concerning where they plan to reside upon release
in order to provide the names of health care providers in that
location. It is sufficient that the Bureau of Prisons provides
information about national hotlines, health care referral
centers, and other sources of information concerning treatment
for HIV and AIDS. The Committee also encourages the Attorney
General to provide such information to any government officer
and employee, at the time their employment with the government
ends, if they have contracted the virus through contact with
inmates or detained persons.
Subsection (d) of section 4014 provides that the results of
a test under this section are inadmissable against the person
tested in any Federal or State civil or criminal case or
proceeding. The purpose of this subsection is to ensure that
section 4014 is used solely to help government employees and
others know if they have been exposed to the HIV virus so that
appropriate treatment may be quickly obtained. While the
results of a test obtained under this section are inadmissable
in a Federal or State civil or criminal case or proceeding,
nothing in this bill prevents the court in such a case from
ordering a separate test, provided it is otherwise appropriate
under applicable law, and procedural and evidentiary rules.
Subsection (e) of new section 4014 requires the Attorney
General to make rules to implement section 4014. As part of the
rules, the Attorney General is required to provide for
procedures designed to protect the privacy of the person
requesting a test and the person tested under this section, and
also limiting the dissemination of the test results to only
those persons specified in the bill.
Subsection (b) of the bill makes a clerical amendment to
the table of sections in title 18 of the United States Code.
Subsection (c) of the bill requires the Attorney General to
develop guidelines for the prevention, detection, and treatment
of incarcerated persons and correctional employees who have, or
may be exposed to, infectious diseases in correctional
institutions. The guidelines are then to be provided to the
States for their use in developing policies to manage these
diseases in correctional settings. The Committee intends for
these guidelines to address not only HIV and AIDS, but
tuberculosis, Hepatitis B, and Hepatitis C, and any other
disease that the Attorney General deems appropriate to be
included in the guidelines. In developing the guidelines, the
Attorney General is to consult with the Secretary of Health and
Human Services. It is the Committee's understanding that the
Attorney General will direct the Bureau of Prisons and the
Public Health Service to develop these guidelines, and that
they will consider the guidance on these issues developed by
the Centers for Disease Control and the Occupational Safety and
Health Administration. The Committee encourages the Attorney
General to also consult with non-governmental organizations
which may have developed expertise in this area, such as the
National Commission on Correctional Health Care.
Agency Views
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, June 22, 1998.
Hon. Henry Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: This letter presents the views of the
Department of Justice on the substitute amendment offered by
Rep. McCollum to H.R. 2070, the ``Correction Officers Health
and Safety Act of 1997.'' Rep. McCollum's amendment to H.R.
2070 would require the Attorney General to test Federal inmates
and Federal pre-trial offenders for the human immunodeficiency
virus (HIV) at the request of a Federal employee or other
person, if the Attorney General believes that the inmate or
offender may have transmitted the virus to the individual. It
also provides for the disclosure of the test results to the
requester.
We have previously provided comments to H.R. 2070 and wish
to reiterate our opposition to any legislation which would
require the Bureau of Prisons to conduct forcible testing for
the HIV. As we have stated previously, if an inmate refuses to
submit to a test, the BOP does not want to be in a position of
exposing additional staff to another possible transmission
incident by forcibly testing the inmate. The BOP already has a
range of sanctions available to persuade inmates to voluntarily
submit to testing. Our concerns with the bill could be
addressed by replacing the first occurrence of the phrase ``the
Attorney General shall'' in section 4014(a) with the phrase
``the Attorney General may.'' In this way, the BOP could
forcibly test an inmate if to do so would not jeopardize the
safety and security of others, but would not be required to do
so in every circumstance regardless of the risk to staff.
We also note that this bill, like the introduced version,
does not limit itself to exposure incidents which occur within
a Federal correctional facility. As currently written, the
subsection permits individuals to request testing for a
possible transmission which may have occurred prior to the
inmate's confinement. The bill also permits individuals to
request testing on Federal inmates or pre-trial offenders who
are not being held in Federal facilities. The only limitation
on any request is that the Attorney General does not have
reason to believe the transmission did not occur. Correctional
management interests are not served by requiring testing for
exposure incidents which occurred outside of the offender's
confinement. Likewise, we believe it would be impractical, in
certain instances, to require the Attorney General to test
offenders who are confined in non-Federal facilities.
Thank you for the opportunity to present our views. Please
do not hesitate to call upon us if we may be of further
assistance. The Office of Management and Budget has advised us
that there was insufficient time to clear this letter
throughout the Administration.
Sincerely,
L. Anthony Sutin,
Acting Assistant Attorney General.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3 of rule XIII of the Rules of the
House of Representatives, changes in existing law made by the
bill, as reported, are shown as follows (new matter is printed
in italic and existing law in which no change is proposed is
shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
PART III--PRISONS AND PRISONERS
* * * * * * *
CHAPTER 301--GENERAL PROVISIONS
Sec.
4001. Limitation on detention; control of prisons.
* * * * * * *
4014. Testing for human immunodeficiency virus.
* * * * * * *
Sec. 4014. Testing for human immunodeficiency virus
(a) The Attorney General shall cause each individual
convicted of a Federal offense who is sentenced to
incarceration for a period of 6 months or more to be tested for
the presence of the human immunodeficiency virus not earlier
than 3 nor later than 4 months after the commencement of that
incarceration.
(b) If the Attorney General has a well founded reason to
believe that a person sentenced to a term of imprisonment for a
Federal offense, or ordered detained before trial under section
3142(e), may have intentionally or unintentionally transmitted
the human immunodeficiency virus to any officer or employee of
the United States, or to any person lawfully present in a
correctional facility who is not incarcerated there, the
Attorney General shall, upon the request of the affected
officer, employee, or other person, cause the person who may
have transmitted the virus to be promptly tested for the
presence of such virus and communicate the test results as soon
as practicable to the person requesting that the test be
performed and to the person tested, if person tested so
requests.
(c) If the results of the test indicate the presence of the
virus, the Attorney General shall provide appropriate access
for counselling, health care, and support services to the
affected officer, employee, or other person, and the person
tested.
(d) The results of a test under this section are inadmissible
against the person tested in any Federal or State civil or
criminal case or proceeding.
(e) Not later than one year after the date of enactment of
this section, the Attorney General shall make rules to
implement this section. Such rules shall require that the
results of any test are communicated only to a person
requesting the test, to the person tested, and, if the results
of the test indicate the presence of the virus, to the chief
administrative officer of the correctional facility in which
the person tested is imprisoned or detained. Such rules shall
also provide for procedures designed to protect the privacy of
a person requesting that the test be performed and the privacy
of the person tested.
* * * * * * *