[Federal Register Volume 60, Number 193 (Thursday, October 5, 1995)]
[Rules and Regulations]
[Pages 52278-52281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24798]




[[Page 52277]]

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Part III





Department of Justice





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Bureau of Prisons



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28 CFR Part 549



Infectious Diseases; Interim Rule

  Federal Register / Vol. 60, No. 193 / Thursday, October 5, 1995 / 
Rules and Regulations  

[[Page 52278]]


DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 549

[BOP-1017-I]
RIN 1120-AA23


Infectious Diseases

AGENCY: Bureau of Prisons, Justice.

ACTION: Interim rule.

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SUMMARY: In this document, the Bureau of Prisons adopts as interim 
regulations provisions for the correctional management of chronic 
infectious diseases. These provisions, with minor adjustments, extend 
the scope of the existing provisions for Human Immunodeficiency Virus 
(HIV) programs to encompass the correctional management of other 
chronic infectious diseases such as hepatitis and tuberculosis. The 
intended effect of these regulations is to provide for the continued 
care of inmates in the Bureau's custody and for the continued secure 
and orderly operation of the institution.

DATES: Effective October 5, 1995; comments must be submitted by 
December 4, 1995.

ADDRESSES: Office of General Counsel, Bureau of Prisons, HOLC Room 754, 
320 First Street, NW., Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Office of General 
Counsel, Bureau of Prisons, phone (202) 514-6655.

SUPPLEMENTARY INFORMATION: The Bureau of Prisons is adopting as interim 
regulations the following procedures for the management of infectious 
diseases in a correctional setting. A final rule on the management of 
human immunodeficiency virus (HIV) programs (28 CFR part 549, subpart 
A) was published in the Federal Register December 21, 1990 (55 FR 
52826). These interim regulations represent a broadening of the 
existing provisions for HIV programs to encompass the management (e.g., 
mandatory testing requirements) of other chronic infectious diseases 
such as hepatitis and tuberculosis.
    The existing provisions have been reorganized in order to clearly 
separate requirements specific to the HIV and to the hepatitis B virus 
(HBV) from requirements common to the management of other chronic 
infectious diseases.
    Section 549.10 has been revised to state the regulations' common 
purpose of providing instruction and guidance in the management of 
infectious diseases in the confined environment of a correctional 
setting. The treatment and handling of routine infectious diseases 
continue to be covered by medical protocols and therefore are 
unaffected by the revised regulations.
    The provisions in former Sec. 549.11 relating to intake screening 
for HIV-infected inmates have been transferred to new Sec. 549.18(a) 
and are discussed below. New Sec. 549.11 is added detailing program 
administrative responsibilities.
    The provisions in former Sec. 549.12 on housing have been 
transferred to new Sec. 549.16 and are discussed below. New Sec. 549.12 
is added to detail administrative requirements for state health 
department reporting requirements and to reference further provisions 
specific to chronic infectious diseases.
    The provisions in former Sec. 549.13 on precautionary measures for 
the use of communal implements have been removed. The Bureau believes 
such measures are more suitably addressed in implementing instructions 
to staff. This allows for greater flexibility in following updated 
guidance on this subject from the Centers for Disease Control.
    A new Sec. 549.13 is added containing provisions on medical 
testing. Paragraph (a) of new Sec. 549.13 contains new provisions for 
testing of inmates following a bloodborne pathogen exposure incident. 
Such testing requires the written, informed consent of the inmate, 
except if the test is ordered by a court with proper jurisdiction. 
Under paragraph (a), an inmate may be subjected to disciplinary action 
for assaultive behavior related to an exposure incident. The Bureau's 
disciplinary procedures (see 28 CFR 541, subpart B) already specify 
assault as a prohibited act subject to disciplinary action. The 
provision in paragraph (a) is intended to clarify that an exposure 
incident could involve assaultive behavior; involvement in an exposure 
incident, however, does not, in and of itself, constitute grounds for 
disciplinary action.
    Paragraph (b) of new Sec. 549.13 summarizes the provisions 
previously stated in paragraphs (a), (b), and (c) of former 
Sec. 549.16. Testing provisions for HIV are also restated in new 
Sec. 549.18 along with provisions for HBV and are discussed below.
    Paragraph (c) of new Sec. 549.13 specifies new correctional 
procedures to be used in conjunction with the medical diagnosis and 
evaluation of infectious and communicable diseases. Under paragraph 
(c)(1), an inmate who refuses such diagnostic procedures and 
evaluations is subject to an incident report for failure to follow an 
order. This requirement is intended to encourage the inmate's voluntary 
cooperation with medically indicated procedures. Paragraph (c)(2) 
restates medical protocols for isolation or quarantine. Paragraph 
(c)(3) specifies that when isolation is not practicable, an inmate who 
refuses to comply with or adhere to the diagnostic process or 
evaluation shall be involuntarily evaluated or tested. The Bureau 
believes that the secure and orderly operation of the institution 
necessitates interim implementation of these provisions.
    The provisions of former Sec. 549.14 on work assignments have been 
transferred to new Sec. 549.16 and are discussed below. A new 
Sec. 549.14 has been added containing training requirements for inmates 
pertinent to infectious diseases. This section largely restates the 
education provisions of former Sec. 549.15 which were pertinent solely 
to HIV education. In addition to the broadening of subject matter 
covered (i.e., infectious diseases instead of merely HIV), this section 
reduces the requirements for supplementing the training given during 
Admission and Orientation.
    As noted above, the provisions of former Sec. 549.15 have been 
incorporated in new Sec. 549.14. A new Sec. 549.15 has been added on 
medical isolation and quarantining for infectious diseases which are 
transmitted through casual contact. This new section adapts standard 
medical protocols for use in a correctional setting.
    The provisions of former Sec. 549.16 have been transferred to new 
Sec. 549.18 and are discussed below. A new Sec. 549.16 is added 
containing provisions on duty and housing restrictions. Paragraph (a) 
of new Sec. 549.16 specifies that the Clinical Director shall assess 
any inmate with an infectious disease for appropriateness for duties 
and housing, and that inmates demonstrating infectious diseases which 
are transmitted through casual contact shall be prohibited from 
employment in any area until fully evaluated by a health care provider. 
This new provision, therefore, is an administrative measure intended to 
ensure that duty and housing restrictions are imposed only after 
appropriate review by health care providers or as a precautionary 
measure pending review. Paragraph (b), which derives from the 
provisions of Sec. 549.14, specifies that inmates may be limited in 
duty and housing assignments only if their disease could be transmitted 
despite the use of environmental/engineering controls or personal 
protective equipment, or when precautionary measures cannot be 

[[Page 52279]]
implemented or are not available to prevent the transmission of the 
specific disease. Reference to HIV antibody screening as a criterion 
for work detail assignment has been removed. The Bureau believes that 
the provisions of paragraph (b) precisely state the criteria used for 
both housing and work detail assignment, and consequently there is no 
need to exclude further criteria. Paragraph (c) restates the provisions 
of former Sec. 549.12.
    The provisions in Sec. 549.17 on confidentiality have been revised 
for the purpose of indicating wider applicability to chronic infectious 
diseases, to include reference to release under the Privacy Act, and to 
include a prohibition against third party disclosure.
    The provisions in former Sec. 549.18 have been designated as 
paragraph (i) of new Sec. 549.18. As revised, new Sec. 549.18 contains 
miscellaneous provisions pertaining to HIV or HBV. Paragraph (a) 
restates the provisions of former Sec. 549.11 and, for the sake of 
emphasis, repeats the advisory on incident reports prescribed by new 
Sec. 549.13(b). Paragraph (b) restates the provisions of the 
introductory text of former Sec. 549.16 (non-prescriptive language was 
not restated for the sake of conciseness). Paragraphs (c) and (d) 
partly restate the provisions of former Secs. 549.16(a) (1) and (2). 
The remainder of Secs. 549.16(a) (1) and (2) have been restated in new 
Sec. 549.13(b). Paragraph (e) revises the provisions of former 
Sec. 549.16(b)(1) to limit inmate requests for voluntary HIV/HBV 
antibody tests to no more than once yearly. Paragraph (f) restates the 
provisions of former Sec. 549.16(b)(2). Paragraph (g) restates the 
provisions of former Sec. 549.16(c). Paragraph (h) restates the 
provisions of former Sec. 549.16(d) and adjusts the timeframe for 
notification to the United States Probation Office. Paragraph (i) 
restates the provisions of former Sec. 549.18. Paragraph (j), formerly 
contained in Sec. 549.19, has been revised to require clinical 
evaluation and review at least quarterly rather than monthly. This 
change is being made pursuant to guidelines on managing early HIV 
infection issued by the Agency for Health Care Policy and Research, 
Public Health Service. Paragraph (k) restates the provisions contained 
in former Sec. 549.19.
    The provisions on autologous blood banking contained in former 
Sec. 549.20 have been removed. Under community standards of care, these 
provisions are considered to be discretionary. Because the typical 
procedures for blood banking necessitate a disproportionate allocation 
of Bureau resources (namely, staff escorts to community hospitals and 
constraints of time schedules), the Bureau has determined that it is 
impractical to offer this procedure to inmates.
    The Bureau is publishing these revisions as an interim rule for two 
reasons. First, the Bureau has determined that it is important to 
effect these changes as quickly as possible in order to allow for the 
judicious management of those contagious diseases which can pose 
serious problems in the confined environment of a prison. Second, a 
significant portion of the regulations are restatements of provisions 
which had previously gone through proposed rulemaking. Members of the 
public may submit comments concerning this rule by writing to the 
previously cited address. These comments will be considered before the 
rule is finalized.
    The Bureau of Prisons has determined that this rule is not a 
significant regulatory action for the purpose of E.O. 12866. After 
review of the law and regulations, the Director, Bureau of Prisons has 
certified that this rule, for the purpose of the Regulatory Flexibility 
Act (Pub. L. 96-354), does not have a significant impact on a 
substantial number of small entities.

List of Subjects in 28 CFR Part 549

    Prisoners.
Kathleen M. Hawk,
Director, Bureau of Prisons.

    Accordingly, pursuant to the rulemaking authority vested in the 
Attorney General in 5 U.S.C. 552(a) and delegated to the Director, 
Bureau of Prisons in 28 CFR 0.96(p), part 549 in subchapter C of 28 
CFR, chapter V is amended as set forth below.

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 549--MEDICAL SERVICES

    1. The authority citation for 28 CFR part 549 continues to read as 
follows:

    Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4005, 
4042, 4045, 4081, 4082, (Repealed in part as to offenses committed 
on or after November 1, 1987), 4241-4247, 5006-5024 (Repealed 
October 12, 1984, as to offenses committed after that date), 5039: 
28 U.S.C. 509, 510; 28 CFR 0.95-0.99.

    2. Subpart A, consisting of Secs. 549.10 through 549.20, is revised 
to consist of Secs. 549.10 through 549.18 as follows:

Subpart A--Infectious Diseases

Sec.
549.10  Purpose and scope.
549.11  Program responsibility.
549.12  Reporting.
549.13  Medical testing.
549.14  Training.
549.15  Medical isolation and quarantining.
549.16  Duty and housing restrictions.
549.17  Confidentiality of information.
549.18  Human immunodeficiency virus (HIV) and hepatitis B virus 
(HBV).

Subpart A--Infectious Diseases


Sec. 549.10  Purpose and scope.

    This policy is designed to provide instruction and guidance in the 
management of infectious diseases in the confined environment of a 
correctional setting.


Sec. 549.11  Program responsibility.

    (a) The Health Services Administrator (HSA) and Clinical Director 
(CD) of each institution shall be responsible for the development and 
implementation of this program.
    (b) Each HSA shall designate a member of the clinical health care 
staff, for example, a physician, dentist, physician assistant, nurse 
practitioner, or nurse, as the Coordinator of Infectious Diseases 
(CID).


Sec. 549.12  Reporting.

    The HSA shall ensure that each institution's respective state 
health department is informed of all cases of reportable infectious 
diseases. See Sec. 549.17 for reporting requirements of chronic 
infectious diseases and for Freedom of Information Act requests.


Sec. 549.13  Medical testing.

    (a) Bloodborne pathogens. Following an incident in which a staff 
member or an inmate may have been exposed to bloodborne pathogens, 
written, informed consent shall be obtained prior to acquiring or 
processing the source individual's blood or other biological specimen 
for the purpose of determining an actual exposure to a bloodborne 
pathogen. In the context of exposure incidents, no inmate shall be 
tested forcibly or involuntarily, unless such testing is ordered by a 
court with proper jurisdiction. Inmates may be subjected to 
disciplinary action for assaultive behavior related to an exposure 
incident.
    (b) HIV testing. HIV testing programs are mandatory and include a 
yearly random sample, yearly new commitment sample, new commitment re-
test sample, pre-release testing, and clinically indicated testing. 
Inmates must participate in all mandatory testing programs. Staff shall 
initiate an incident report for failure to follow an order for any 
inmate refusing one of the mandatory HIV testing programs.
    (c) Diagnostics. (1) An inmate who refuses clinically indicated 
diagnostic 

[[Page 52280]]
procedures and evaluations for infectious and communicable diseases 
shall be subject to an incident report for failure to follow an order; 
involuntary testing subsequently may be performed in accordance with 
paragraph (c)(3) of this section.
    (2) Any inmate who refuses clinically indicated diagnostic 
procedures and evaluations for infectious and communicable diseases 
shall be subject to isolation or quarantine from the general population 
until such time as he/she is assessed to be non-communicable or the 
attending physician determines the inmate poses no health threat if 
returned to the general population.
    (3) If isolation is not practicable, an inmate who refuses to 
comply with or adhere to the diagnostic process or evaluation shall be 
involuntarily evaluated or tested.


Sec. 549.14  Training.

    The HSA shall ensure that a qualified health care professional 
provides training, incorporating a question-and-answer session, about 
infectious diseases to all newly committed inmates, during Admission 
and Orientation (A&O). Additional training shall be provided at least 
yearly.


Sec. 549.15  Medical isolation and quarantining.

    (a) The CD, in consultation with the HSA, shall ensure that inmates 
with infectious diseases which are transmitted through casual contact 
(e.g., tuberculosis, chicken pox, measles) are isolated from the 
general inmate population until such time as they are assessed or 
evaluated by a health care provider.
    (b) Inmates shall remain in medical isolation unless their 
activities, housing, and/or duty assignments can be limited or 
environmental/engineering controls or personal protective equipment is 
available to eliminate the risk of transmitting the disease.


Sec. 549.16  Duty and housing restrictions.

    (a) The CD shall assess any inmate with an infectious disease for 
appropriateness for duties and housing. Inmates demonstrating 
infectious diseases, which are transmitted through casual contact, 
shall be prohibited from employment in any area, until fully evaluated 
by a health care provider.
    (b) Inmates may be limited in duty and housing assignments only if 
their disease could be transmitted despite the use of environmental/
engineering controls or personal protective equipment, or when 
precautionary measures cannot be implemented or are not available to 
prevent the transmission of the specific disease. The Warden, in 
consultation with the CD, may exclude inmates, on a case-by-case basis, 
from work assignments based upon the classification of the institution 
and the safety and good order of the institution.
    (c) With the exception of the Bureau of Prisons rule set forth in 
subpart E of 28 CFR part 541, there shall be no special housing 
established for HIV-positive inmates.


Sec. 549.17  Confidentiality of information.

    (a) Medical information relevant to chronic infectious diseases 
shall be limited to members of the institutional medical staff, 
institutional psychologist, and the Warden and case manager, as needed, 
to address issues regarding pre- and post-release management. Prior to 
an inmate's release, medical information may be shared with the United 
States Probation Officer in the respective area of intended release for 
the inmate and, if applicable, with the Community Corrections Manager 
and the Director of the Community Correctional Center (CCC) for 
purposes of post-release management and access to care. Any other 
release of information shall be in accordance with the Privacy Act of 
1974.
    (b) All parties, with whom confidential medical information 
regarding another individual is communicated, shall be advised not to 
share this information, by any means, with any other person. Medical 
information may be communicated among medical staff directly concerned 
with a patient's case in the course of their professional duties.


Sec. 549.18  Human immunodeficiency virus (HIV) and hepatitis B virus 
(HBV).

    (a) During routine intake screening, all new commitments shall be 
interviewed to identify those who may be HIV- or HBV-infected. Medical 
personnel may request any inmates identified in this manner to submit 
to an HIV or HBV test. Failure to comply shall result in an incident 
report for failure to follow an order.
    (b) A seropositive test result alone may not constitute grounds for 
disciplinary action. Disciplinary action may be considered when coupled 
with a secondary action that could lead to transmission of the virus, 
e.g. sharing razor blades.
    (c) A sample of all newly incarcerated inmates committed to the 
Bureau of Prisons ordinarily shall be tested annually.
    (d) Additionally, a random sample for HIV of all inmates in the 
Bureau of Prisons shall be conducted once yearly. Inmates tested in 
this random sample are not scheduled for follow-up routine retesting.
    (e) After consultation with a Bureau of Prisons' health care 
provider, an inmate may request an HIV/HBV antibody test. Ordinarily, 
an inmate will not be allowed to test, as a volunteer, more frequently 
than once yearly.
    (f) A physician may order an HIV/HBV antibody test if an inmate has 
chronic illnesses or symptoms suggestive of an HIV or HBV infection. 
Inmates who are pregnant, inmates receiving live vaccines or inmates 
being admitted to community hospitals, if required by the hospital, 
shall be tested. Inmates demonstrating sexual behavior which is 
promiscuous, assaultive, or predatory shall also be tested.
    (g) (1) An inmate being considered for full-term release, parole, 
good conduct time release, furlough, or placement in a community-based 
program such as a Community Corrections Center (CCC) shall be tested 
for the HIV antibody. An inmate who has been tested within one year of 
this consideration ordinarily will not be required to submit to a 
repeat test prior to the lapse of a one-year period. An inmate who 
refuses to be tested shall be subject to an incident report for 
refusing an order and will ordinarily be denied participation in a 
community activity.
    (2) A seropositive test result is not sole grounds for denying 
participation in a community activity. Test results ordinarily must be 
available prior to releasing an inmate for a furlough or placement in a 
community-based program. When an inmate requests an emergency furlough, 
and current (within one year) HIV and HBV antibody test results are not 
available, the Warden may consider authorizing an escorted trip for the 
inmate, at government expense.
    (h) (1) No later than thirty days prior to release on parole or 
placement in a community-based program, the Warden shall send a letter 
to the Chief United States Probation Officer (USPO) in the district 
where the inmate is being released, advising the USPO of the inmate's 
positive HIV status. A copy of this letter shall also be forwarded to 
the Community Corrections Manager. The Community Corrections Manager, 
in turn, shall notify the Director of the CCC (if applicable). In all 
instances of notification, precautions shall be taken to ensure that 
only authorized persons with a legitimate need to know are allowed 
access to the information.
    (2) Prior to an HIV-positive inmate's participation in a community 
activity 

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(including furloughs), notification of the inmate's infectious status 
shall be made:
    (i) By the Warden to the USPO in the district to be visited, and
    (ii) By the Health Service Administrator to the state health 
department in the state to be visited, when that state requires such 
notification.
    Notification is not necessary for an escorted trip.
    (3) Prior to release on parole, completion of sentence, placement 
in a community-based program, or participation in an unescorted 
community activity, an HIV-positive inmate shall be strongly encouraged 
to notify his/her spouse (legal or common-law) or any identified 
significant others with whom it could be assumed the inmate might have 
contact resulting in possible transmission of the virus.
    (4) When an inmate is confirmed positive for HIV or HBV, the HSA 
shall be responsible for notifying the state health departments in the 
state in which the institution is located and the state in which the 
inmate is expected to be released, when either state requires such 
notification. The HSA shall ensure medical staff perform the 
notification at the time of confirmed positive HIV or HBV antibody 
tests.
    (5) The HSA shall notify the Immigration and Naturalization Service 
(INS) of any inmate testing positive who is to be released to an INS 
detainer.
    (i) Inmates receiving the HIV or HBV antibody test shall receive 
pre- and post-test counseling, regardless of the test results.
    (j) Health service staff shall clinically evaluate and review each 
HIV-positive inmate at least once quarterly.
    (k) Pharmaceuticals approved by the Food and Drug Administration 
for use in the treatment of AIDS, HIV-infected, and HBV-infected 
inmates shall be offered, when indicated, at the institution.

[FR Doc. 95-24798 Filed 10-4-95; 8:45 am]
BILLING CODE 4410-05-P