[Federal Register Volume 67, Number 134 (Friday, July 12, 2002)]
[Proposed Rules]
[Pages 46136-46139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-17564]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 549

[BOP-1104-P]
RIN 1120-AB03


Infectious Disease Management: Voluntary and Involuntary Testing

AGENCY: Bureau of Prisons, Justice.

ACTION: Proposed rule.

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SUMMARY: In this document, the Bureau of Prisons proposes to revise its 
regulations on the management of infectious diseases. The changes 
address the circumstances under which the Bureau conducts voluntary and 
involuntary testing for HIV, tuberculosis, and other infectious 
diseases. We intend this amendment to provide for the health and safety 
of staff and inmates.

DATES: Comments due by September 10, 2002.

ADDRESSES: Submit comments to: Rules Unit, Office of General Counsel, 
Bureau of Prisons, 320 First Street, NW., Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General 
Counsel, Bureau of Prisons, phone (202) 307-2105.

SUPPLEMENTARY INFORMATION: The Bureau proposes to revise its 
regulations on the infectious disease management program (28 CFR, part 
549, subpart A). These regulations were published in the Federal 
Register on October 5, 1995 (60 FR 52278) as interim final rules. We 
received no public comment on that interim rule. We had published an 
entry in the Unified Regulatory Agenda describing the finalization of 
that

[[Page 46137]]

interim final rule (BOP-1017-F, RIN 1120-AA23). To clarify that this 
rulemaking is a change to the same interim rules, we are merging that 
action into this proposed rule.
    The Correction Officers Health and Safety Act of 1998 gave the 
Bureau new statutory authority for conducting HIV tests. Additionally, 
the Centers for Disease Control (CDC) has issued a variety of 
recommendations on prevention and control of HIV, Tuberculosis, and 
other infectious diseases. Consequently, the Bureau is proposing to 
revise its regulations in accordance with the new statutory authority 
and in consideration of CDC recommendations.
    Currently, Bureau regulations on the management of infectious 
diseases provide for mandatory HIV testing of a yearly random sample, 
yearly new commitment sample, new commitment re-test sample, pre-
release testing, and clinically indicated testing. Any inmate refusing 
an order for one of these mandatory HIV testing programs is subject to 
an incident report for refusing to obey an order. Current regulations 
do not allow for involuntary HIV testing of an inmate following any 
intentional or unintentional exposure, when there is a risk of 
transmission of HIV infection to Bureau employees or other persons in a 
Bureau institution.
    The Correction Officers Health and Safety Act of 1998 provides that 
each individual convicted of a Federal offense who is sentenced to a 
period of six months or more is to be tested for HIV, if such 
individual is determined to be at risk for HIV infection in accordance 
with the guidelines issued by the Bureau. The act also provides for 
involuntary HIV testing following any intentional or unintentional 
exposure when there is a risk of transmission of HIV infection to 
Bureau employees or other persons in a Bureau institution. Because of 
this new statutory authority, the Bureau is proposing to amend its 
regulations to allow involuntary testing in those instances where an 
inmate refuses to be tested following any intentional or unintentional 
exposure. The inmate may also be subject to an incident report for 
refusing to obey an order.
    The Bureau will continue to allow an inmate to request to be tested 
for HIV. Such testing is limited to no more than once per 12-month 
period, unless the Bureau determines that additional testing is 
warranted. The Bureau will also continue to provide pre- and post-test 
counseling, regardless of the test results.
    The Bureau is also proposing to amend its regulations on infectious 
disease management to address testing requirements for tuberculosis 
(TB). The Bureau's general authority to protect and provide for the 
safekeeping and care of inmates in Bureau custody (18 U.S.C. 4042(a)) 
allows us to conduct medical tests as necessary to protect the health 
of the inmate population. Currently, testing of inmates for TB is 
conducted in accordance with the recommendations and guidelines 
published by the Centers for Disease Control (CDC) in 1992. In response 
to the increased transmission of TB in correctional facilities, the CDC 
updated and expanded previously published recommendations for 
preventing and controlling TB in correctional facilities.
    Based on these updated recommendations, the Bureau will screen each 
inmate for TB within two calendar days of initial incarceration. We 
intend to appropriately treat, isolate and/or protect inmates as a 
result of exposure in the two-day interim before testing. The Bureau 
will also conduct follow-up testing for each inmate annually. In 
addition, the Bureau will screen an inmate for TB when health services 
staff determine that the inmate may be at risk for infection. An inmate 
who refuses TB screening may be subject to an incident report for 
refusing to obey an order. If an inmate refuses PPD skin testing, and 
there is no contraindication to PPD skin testing, institution medical 
staff will educate and counsel the inmate regarding the need for such 
testing in an institutional setting (for example, the need to identify 
HIV+ inmates who have not received a course of prophylaxis and are at 
high risk for the development of active tuberculous disease). If an 
inmate still refuses PPD skin testing despite education and counseling, 
institution medical staff will test the inmate involuntarily. The 
intent of this amendment is to control TB among staff and inmates in 
correctional facilities.
    To provide for the protection, safekeeping, and care of inmates in 
our custody (as required by 18 U.S.C. 4042(a)), we retain, revised for 
clarity, regulations on diagnostics (549.12(c)); Programming, Duty and 
Housing Restrictions (549.13); Confidentiality of Information (549.14); 
and Infectious Disease Training and Preventive Measures (549.15).
    Finally, the Bureau is removing provisions in current 
Sec. 549.13(c)(2) and (3) dealing with medical isolation and 
quarantining as these are governed by normal medical protocols and do 
not need to appear in the regulations. Removing these provisions from 
regulation and retaining them in Bureau policy allows us the 
flexibility to adhere to ever-changing medical standards and Federal 
medical guidelines.
    Interested persons may participate in this proposed rulemaking by 
submitting data, views, or arguments in writing to the Rules Unit, 
Office of General Counsel, Bureau of Prisons, 320 First Street, NW., 
HOLC Room 754, Washington, DC 20534. Comments received during the 
comment period will be considered before final action is taken. 
Comments received after the expiration of the comment period will be 
considered to the extent practicable. All comments received remain on 
file for public inspection at the above address. The proposed rule may 
be changed in light of the comments received. No oral hearings are 
contemplated.

Executive Order 12866

    This rule has been reviewed as a ``significant regulatory action'' 
under section 3(f) of Executive Order 12866 by the Office of Management 
and Budget (OMB).

Executive Order 13212

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Regulatory Flexibility Act

    The Director of the Bureau of Prisons, in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this 
regulation and by approving it certifies that this regulation will not 
have a significant economic impact upon a substantial number of small 
entities for the following reasons: This rule pertains to the 
correctional management of offenders committed to the custody of the 
Attorney General or the Director of the Bureau of Prisons, and its 
economic impact is limited to the Bureau's appropriated funds.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions

[[Page 46138]]

of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by Sec. 804 of the Small 
Business Regulatory Enforcement Fairness Act of 1996. This rule will 
not result in an annual effect on the economy of $100,000,000 or more; 
a major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Plain Language Instructions

    We try to write clearly. If you can suggest how to improve the 
clarity of these regulations, call or write Sarah Qureshi at the 
address listed above.

List of Subjects in 28 CFR Part 549

    Prisoners.

Kathleen Hawk Sawyer,
Director, Bureau of Prisons.

    Under rulemaking authority vested in the Attorney General in 5 
U.S.C. 552(a) and delegated to the Director, Bureau of Prisons, we 
amend 28 CFR part 549 as follows.

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 549--MEDICAL SERVICES

    1. Revise the authority citation for 28 CFR part 549 to read as 
follows:

    Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4005, 
4014, 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.

    2. Revise Subpart A to read as follows:

Subpart A--Infectious Disease Management
Sec.
549.10   Purpose and scope.
549.11   Program responsibility.
549.12   Testing.
549.13   Programming, duty, and housing restrictions.
549.14   Confidentiality of information.
549.15   Infectious disease training and preventive measures.

Subpart A--Infectious Disease Management


Sec. 549.10  Purpose and scope.

    The Bureau will manage infectious diseases in the confined 
environment of a correctional setting through a comprehensive approach 
which includes testing, appropriate treatment, prevention, education, 
and infection control measures.


Sec. 549.11  Program responsibility.

    Each institution's Health Services Administrator (HSA) and Clinical 
Director (CD) are responsible for the operation of the institution's 
infectious disease program in accordance with applicable laws and 
regulations.


Sec. 549.12  Testing.

    (a) Human Immunodeficiency Virus (HIV). (1) Clinically indicated. 
The Bureau tests inmates who have sentences of six months or more if 
health services staff determine, taking into consideration the risk as 
defined by the Centers for Disease Control guidelines, that the inmate 
is at risk for HIV infection. If the inmate refuses testing, staff may 
initiate an incident report for refusing to obey an order.
    (2) Exposure incidents. The Bureau tests an inmate, regardless of 
the length of sentence or pretrial status, when there is a significant 
risk that the inmate transmitted the HIV infection, whether 
intentionally or unintentionally, to Bureau employees or other non-
inmates who are lawfully present in a Bureau institution. Exposure 
incident testing does not require the inmate's consent.
    (3) Surveillance testing. The Bureau conducts HIV testing for 
surveillance purposes as needed. If the inmate refuses testing, staff 
may initiate an incident report for refusing to obey an order.
    (4) Inmate request. An inmate may request to be tested. The Bureau 
limits such testing to no more than one per 12-month period unless the 
Bureau determines that additional testing is warranted.
    (5) Counseling. Inmates being tested for HIV are to receive pre- 
and post-test counseling, regardless of the test results.
    (b) Tuberculosis (TB). (1) The Bureau screens each inmate for TB 
(e.g., PPD skin test, medical history, etc.) within two calendar days 
of initial incarceration.
    (2) The Bureau conducts follow-up tests for each inmate annually.
    (3) The Bureau will screen an inmate for TB when health services 
staff determine that the inmate may be at risk for infection.
    (4) An inmate who refuses TB screening may be subject to an 
incident report for refusing to obey an order. If an inmate refuses PPD 
skin testing, and there is no contraindication to PPD skin testing, 
then, institution medical staff will test the inmate involuntarily.
    (5) The Bureau conducts TB contact investigations following any 
incident in which inmates or staff may have been exposed to 
tuberculosis. Inmates will be tested according to paragraph (b)(4) of 
this section.
    (c) Diagnostics. The Bureau tests an inmate for an infectious or 
communicable disease when the test is necessary to verify transmission 
following exposure to bloodborne pathogens or to infectious body fluid. 
An inmate who refuses diagnostic testing is subject to an incident 
report for refusing to obey an order.


Sec. 549.13  Programming, duty, and housing restrictions.

    (a) The CD will assess any inmate with an infectious disease for 
appropriateness for programming, duty, and housing. Inmates with 
infectious diseases, that are transmitted through casual contact, will 
be prohibited from employment in any area, until fully evaluated by a 
health care provider.
    (b) Inmates may be limited in programming, duty, and housing 
assignments when their infectious disease is transmitted through casual 
contact. The Warden, in consultation with the CD, may exclude inmates, 
on a case-by-case basis, from work assignments based upon the security 
and good order of the institution.
    (c) If an inmate tests positive for an infectious disease, that 
test alone does not constitute sole grounds for disciplinary action. 
Disciplinary action may be considered when coupled with a secondary 
action that could lead to transmission of an infectious agent. Inmates 
testing positive for infectious disease are subject to the same 
disciplinary policy that applies to all inmates (see 28 CFR part 541, 
subpart B). Except as provided for in our disciplinary policy, no 
special or separate housing units may be established for HIV-positive 
inmates.


Sec. 549.14  Confidentiality of information.

    Any disclosure of test results or medical information is made in 
accordance with the Privacy Act of 1974 and the HHS Standards for 
Privacy of Individually Identifiable Health Information promulgated 
pursuant to the Health Insurance Portability and Accountability Act of 
1996. Routine uses of such information maintained by the Bureau in its 
Privacy Act systems of records include the following:
    (a) The HSA will ensure that each institution's respective state 
health department is informed of all cases of infectious diseases which 
are required by the state to be reported to the state health 
department.
    (b) For all inmates being released from Bureau custody on parole, 
supervised

[[Page 46139]]

release, placement in a community-based program, furlough, or full-term 
release, the Warden will send a letter to the Chief, United States 
Probation Office (USPO) in the district where the inmate is being 
released if the inmate is known to be HIV seropositive or under 
treatment for active TB.
    (c) If the inmate is being released to a halfway house, a copy of 
the USPO letter will be forwarded to the appropriate Community 
Corrections Manager (CCM). The CCM will notify the Director of the 
halfway house (if applicable).
    (d) The HSA will notify the Immigration and Naturalization Service 
(INS) of any inmate testing HIV positive or who is under treatment for 
active TB who is to be released to an INS detainer.


Sec. 549.15  Infectious disease training and preventive measures.

    (a) The HSA will 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.
    (b) Inmates in work assignments which staff determine to present 
the potential for occupational exposure to blood or infectious body 
fluids will receive annual training on prevention of work-related 
exposures and will be offered vaccination for Hepatitis B.

[FR Doc. 02-17564 Filed 7-11-02; 8:45 am]
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