33-108.101: Inmate Substance Abuse Testing
PURPOSE AND EFFECT: The purpose and effect of the proposed rule is to amend Rule 33-108.101, F.A.C., to allow for use of the dry cell procedure when an inmate indicates an inability to urinate in the presence of others and provide definitions for “confirmation testing” and “threshold levels.”
SUBJECT AREA TO BE ADDRESSED: Substance Abuse Testing.
SPECIFIC AUTHORITY: 944.09, 944.472, 944.473 FS.
LAW IMPLEMENTED: 944.09, 944.472, 944.473 FS.
IF REQUESTED IN WRITING AND NOT DEEMED UNNECESSARY BY THE AGENCY HEAD, A RULE DEVELOPMENT WORKSHOP WILL BE NOTICED IN THE NEXT AVAILABLE FLORIDA ADMINISTRATIVE WEEKLY.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Jamie Leigh Jordan, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500
THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:
33-108.101 Inmate Substance Abuse Testing.
The Office of the Inspector General shall be responsible for the development and implementation of the department’s substance abuse testing program.
(1) Definitions.
(a) No change.
(b) Tester – a correctional officer who has been trained and certified as competent by the manufacturer of the onsite testing device or certified training personnel, affiliated with the department, on the proper procedures for collecting urine specimens, including the completion and maintenance of the Chain of Custody Form, the handling and disposing of urine specimens, and the administration and interpretation of the on-site testing device. All testing personnel must be approved by the Office of the Inspector General. The Chain of Custody Form is incorporated by reference in paragraph (3)(h)(g) of this rule.
(c) through (f) No change.
(g) Confirmation Testing – testing conducted by an outside contract laboratory using gas chromatography coupled with mass spectrometry (GC/MS) when on-site results of a test are positive and the inmate refuses to sign an Affidavit for Admission of Drug Use, Form DC1-824. Form DC1-824 is incorporated by reference in paragraph (3)(h) of this rule.
(h) Threshold Level – the concentration of a drug in the urine used to determine whether the test will be considered positive or negative. The threshold level for confirmation testing is the lowest legally defensible, scientifically acceptable, level of quantification (L.O.Q.) as determined by the contract tester.
(2) The Department of Corrections conducts the following types of inmate substance abuse testing:
(a) For-Cause or Reasonable Suspicion Testing.
1. through 5. No change.
6. A copy of the Incident Report, Form DC6-210, shall be attached to the facility’s copy of the Chain of Custody Form for positive specimens sent to the laboratory for confirmation testing. Form DC6-210 is incorporated in Rule 33-602.210, F.A.C. The Chain of Custody Form is incorporated by reference in paragraph (3)(h)(g) of this rule.
(b) through (c) No change.
(3) Procedures.
(a) No change.
(b) Specimen Collection Procedures.
1. through 7. No change.
8. An inmate who has not provided an adulterated urine specimen and who indicates a claimed inability to provide an adequate urine specimen shall be detained in the presence of the tester or other designated person for a period not to exceed 1 hour to provide an adequate specimen. During that time, the inmate shall be allowed to consume one cup (8 oz.) of water every 1/2 hour, not to exceed a total of 2 cups during this time period and an Acknowledgement of Beverage Form, DC1-823, shall be completed. Form DC1-823, Acknowledgement of Beverage Form, is incorporated by reference in paragraph (3)(h)(g) of this rule. If after the 1 hour period an inmate still fails to submit a valid adequate urine specimen, the inmate shall be considered to have refused to provide a urine specimen and a disciplinary report shall be prepared in accordance with Rules 33-601.301-601.314, F.A.C. If an inmate claims an inability to urinate due to a medical condition, the procedures set forth in paragraph (3)(d)(c) shall apply.
9. through 12. No change.
(c) Upon notification from an inmate that he is unable to urinate due to a medical condition, the officer shall verify with medical staff that the inmate possesses a specific medical condition or is taking medication which inhibits the inmate from urinating within the designated time frame. Upon receiving such verification, the inmate shall be given the opportunity to provide a urine specimen under the following conditions:
1. through 5. No change.
6. Upon receipt of the urine specimen the tester shall visually inspect the urine specimen to ensure it appears valid and unadulterated and the procedures outlined in subparagraph (3)(e)(d)1. for the testing of urine specimens shall be followed.
(d) If an inmate claims an inability to urinate in front of or in the presence of others, the tester shall collect the urine specimen under the conditions outlined in subparagraphs (3)(c)1.-6.
(e)(d) Testing of urine specimens.
1. Only certified testing personnel are authorized to utilize the on-site testing equipment. For every on-site test conducted, regardless of purpose, the Inmate Scannable Drug Testing Control Card shall be filled out. The Inmate Scannable Drug Testing Control Card, DC1-826 is incorporated in paragraph (3)(h)(g) of this rule.
2. through 5. No change.
6. Positive test results. The tester shall inform the inmate of the positive results of the on-site testing device. The inmate will then be given the opportunity to sign an Affidavit for Admission of Drug Use, DC1-824. Form DC1-824, Affidavit for Admission of Drug Use, is incorporated by reference in paragraph (3)(h)(g) of this rule.
a. through c. No change.
7. No change.
(f)(e) Other on-site testing device procedures.
1. Due to product limitations, it may become necessary to utilize other noninvasive on-site testing devices for alcohol testing. In such instances, the certified tester will utilize the on-site testing device in the presence of the inmate following the manufacturer’s testing protocols. If the initial result of the on-site testing device is positive, and the inmate declines to sign the Affidavit for Admission of Drug Use Form, DC1-824, then a urine specimen will be obtained from the inmate and sent to a designated outside laboratory for confirmation testing, in accordance with the procedures outlined in paragraph (3)(b), specimen collection procedures, and paragraph (3)(e)(d), testing of urine specimens.
2. All correctional facilities shall maintain a record of all reasonable suspicion substance abuse tests conducted. This record shall be maintained by the correctional officer chief or his designee. Form DC1-827, Reasonable Suspicion Testing Tracking Form, shall be utilized for this purpose. Form DC1-827, Reasonable Suspicion Testing Tracking Form, is incorporated by reference in paragraph (3)(h)(g) of this rule.
(f) through (g) renumbered (g) through (h) No change.
Specific Authority 944.09, 944.472, 944.473 FS. Law Implemented 944.09, 944.472, 944.473 FS. History–New 2-8-00, Amended 2-5-01, Formerly 33-602.2045, Amended 7-2-02, 2-19-07,_________.