33-108.101: Inmate Substance Abuse Testing
PURPOSE AND EFFECT: The purpose and effect of the proposed rule is to: remove reference to Form DC1-826, Inmate Scannable Drug Testing Control Card, as the form is being eliminated; provide that female inmates shall not be subject to testing while they are menstruating; clarify the procedure for retesting inmates who are found to have blood in the their urine upon initial testing; clarify the requisite training and certification for testers.
SUBJECT AREA TO BE ADDRESSED: Inmate 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: Kendra Lee Jowers, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500
THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:
33-108.101 Inmate Substance Abuse Testing.
(1) Definitions.
(a) Random Selection – a A computerized random selection model utilized to obtain a sample of inmates to be tested for drugs or alcohol.
(b) Tester – a correctional officer who has been trained and certified as competent by the manufacturer of the onsite testing device and trained by 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) of this rule.
(c) through (d) No change.
(e) Test refusal – failure on the part of an inmate to fully comply with the department’s substance abuse testing procedures, which includes failing to provide a valid urine specimen, attempting to alter a his or her urine specimen with adulterants, as established by an on-site specimen adulteration testing product, and using substitute urine in makeshift devices or objects. Any inmate who refuses to comply with the testing process or fails to provide a valid specimen, within the specified time frames of this rule as stipulated in subparagraphs (3)(b)8. and (3)(b)10., shall be given a disciplinary report in accordance with Rules 33-601.301-.314, F.A.C.
(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 Form DC1-824, 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) No change.
(2) The Department of Corrections conducts the following types of inmate substance abuse testing:
(a) For-Cause or Reasonable Suspicion Testing.
1. Inmates suspected of involvement with drugs or alcohol shall be subject to for-cause testing upon order of the warden, the or duty warden of the institution, or the correctional officer chief of the facility, a or their designees of one the above individuals, or the Office of the Inspector General. An inmate should only be tested for a maximum of four drugs on a for-cause basis, unless extenuating circumstances exist. For-cause tests will only be conducted on inmates who meet the criteria outlined in subparagraphs sub-subparagraph 2.a. through c. below.
2. No change.
3. When for-cause testing is ordered, an incident report shall be prepared including the dates and times of reported drug-related events and the rationale leading to the request for testing:
a. Dates and times of reported drug-related events;
b. Rationale leading to the request for testing.
4. The senior correctional officer on duty shall be notified that a the staff member has identified a suspicious inmate who meets the for-cause drug testing criteria. The highest ranking correctional officer shall ensure that an incident report is prepared. The incident report shall contain all pertinent information concerning the inmate that which prompted the request for testing, to include any supporting evidence.
5. Upon approval of the warden, duty warden, correctional officer chief, or their designees, or the Office of the Inspector General, collection and testing procedures shall be conducted immediately pursuant to this rule.
6. A copy of Form DC6-210, 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) of this rule.
(b) Random Substance Abuse Testing. All correctional facilities shall receive on a weekly basis a list of the names and DC numbers of inmates generated through random selection for substance abuse testing. The list will be electronically transmitted from the department’s electronic database Offender Base Information System to the secure printer of the warden of each major institution or the correctional officer chief of the correctional facility. Any facility that does not have a secure printer will have its their respective list printed to a secure printer at another facility as designated by the warden of the institution or correctional officer chief of the facility. The list is considered confidential and shall not be disseminated to inmates or non-essential staff members prior to testing. Each time an inmate’s name appears on the random list, he or she shall be tested regardless of whether or not he or she has been previously tested.
(c) No change.
(3) Procedures.
(a) Chain of Custody.
1. At a minimum, the Chain of Custody Form must include inmate and tester identification, initialed by both the inmate and the tester, date and time of collection, type of test (i.e., random, for-cause or substance abuse program participation), and identification of all individuals who had custody of the specimen from the time of collection until the specimen was prepared for shipment to the laboratory. Once the outside laboratory receives the specimen, it will become the laboratory’s responsibility to maintain a chain of custody throughout the testing process.
2. The Chain of Custody Form, allows for any comments by the tester regarding any unusual observations. Any failure by the inmate to cooperate with the collection process, and any the unusual nature (e.g., discolored urine or urine containing foreign objects) of a any specimen provided shall be noted.
3. The tester shall ensure that all collected urine specimens, being sent to a designated outside laboratory for confirmation testing, are properly labeled and sealed with a security label as provided on the Chain of Custody Form. The tester shall also ensure that the Chain of Custody Form for all collected urine specimens is completed in accordance with department procedures.
4. If an inmate is unable or unwilling to enter his or her initials on the Chain of Custody Form, the tester will make a notation in the comment section of the form Chain of Custody Form and leave the space blank. The tester will not under any circumstances sign the Chain of Custody Form for an inmate.
(b) Specimen Collection Procedures.
1. The tester shall ensure that all urine specimens are collected in accordance with department procedures. All collections shall be performed under direct observation, where the tester directly observes the voiding of urine into the specimen cup, unless the inmate has been placed in a dry cell. Direct observation may also be accomplished through use of mirrors strategically mounted in the collection rest room.
2. Under no circumstances is direct observation of an inmate by a tester of the opposite sex from the inmate allowed.
3. A female inmate shall not be required to provide a urine specimen during her menstrual cycle.
4.3. The tester shall ensure that there is positive inmate identification prior to collecting the inmate’s urine specimen. Sight, name, DC number, and examination of an inmate’s picture identification card shall provide positive identification of the inmate selected for drug testing.
5.4. The tester shall search the inmate to ensure that the inmate is not concealing any substances or materials that could be used to alter or substitute his or her urine specimen. If any such substances or materials are found, the inmate will be charged with refusing to submit to a substance abuse test.
5. If an inmate attempts to alter his or her urine specimen during the collection process through the use of adulterants or substitute urine, the inmate will be charged with refusing to submit to substance abuse testing.
6. No change.
7. The inmate is expected to provide a minimum of 30 ml of urine. If the inmate provides less than this amount, the tester shall again attempt to collect an adequate specimen. If the inmate cannot immediately provide an adequate submit another urine specimen, then the procedure outlined in subparagraph (3)(b)8. 8. below for a claimed inability to provide a urine specimen shall apply.
8. An inmate who has not provided an adulterated urine specimen and who claims an 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 or other beverage every 1/2 hour, not to exceed a total of 2 cups during this time period, and Form DC1-823, an Acknowledgement of Beverage Form, DC1-823, shall be completed. Form DC1-823 DCI-823, Acknowledgement of Beverage Form, is incorporated by reference in paragraph (3)(h) 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-.314, F.A.C. If an inmate claims an inability to urinate, the procedures set forth in paragraph (3)(d) shall apply.
9. After the inmate has voided a urine specimen into the cup, the tester will visually inspect the urine specimen to make sure that it the specimen appears to be valid and unadulterated. If the tester suspects that the specimen has been adulterated based upon observation, experience, or prior training, the tester will utilize the on-site specimen adulteration testing product in front of the inmate following the manufacturer’s testing protocols. If a positive result is received on the on-site specimen adulteration testing product indicating that the urine specimen was adulterated, the adulterated specimen will not be accepted as a valid specimen and will be discarded. The inmate will be required to submit a valid and unadulterated specimen pursuant to. If the inmate cannot submit a valid and unadulterated specimen, then the procedure outlined below in subparagraph (3)(b)10. below (3)(b)10. shall apply.
10. Inmates who have adulterated their urine specimen by ingesting substances, as established by the on-site specimen adulteration testing product, shall be detained in the presence of the tester or placed in a dry cell “dry cell” for a period not to exceed one hour. During that time, the inmate shall not be allowed to consume any water or other beverage. If after the one hour period an inmate still fails to submit an unadulterated valid 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-.314, F.A.C.
11. No change.
12. If a urine specimen contains blood or appears to contain blood, the inmate who produced the specimen shall be referred immediately to the medical department for evaluation. If no valid reason exists for having blood in the specimen, the inmate will be required to provide another urine specimen. If the inmate cannot submit a urine specimen, the inmate 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 or other beverage every 1/2 hour, not to exceed a total of 2 cups during this time period, and Form DC1-823, Acknowledgement of Beverage Form, shall be completed. 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-.314, F.A.C then the procedure outlined above for a claimed inability to provide a urine specimen shall apply.
(c) Upon notification from an inmate that he or she 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 that 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. No change.
2. The inmate shall remove the contents of his or her pockets, and his or her shirt, shoes, pants and hat. The inmate shall be thoroughly searched prior to entering the dry cell to prevent him or her from using any adulterants such as bleach or cleanser to alter the his or her urine specimen.
3. No change.
4. The inmate shall be allowed to consume one cup (8 oz.) of water or other beverage every 1/2 hour, not to exceed a total of two cups during the time spent in the dry cell, and Form DC1-823, an Acknowledgement of Beverage Form, DC1-823, shall be completed.
5. A physical check shall be made on the inmate once every 30 minutes to see if he or she has provided a valid urine specimen.
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 paragraph (3)(e) subparagraph (3)(e)1. for the testing of urine specimens shall be followed.
7. through (d) No change.
(e) 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 results shall be entered into the department’s electronic database 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) of this rule.
2. through 4. No change.
5. Negative test results. The tester shall inform the inmate of the negative test results of the on-site testing device. The tester shall record all negative test results on the department’s electronic database Inmate Scannable Drug Testing Control Card and the OBIS printout. The tester will then dispose of the remaining specimen, specimen cup and testing device. All forms shall be retained in accordance with state law and rules governing the retention of records.
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 Form DC1-824, 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) of this rule.
a. If the inmate chooses to sign Form DC1-824 the Affidavit for Admission of Drug Use, DC1-824, the testing officer shall complete the affidavit form and have the inmate swear to its content, with the officer witnessing the inmate’s signature. The inmate will be placed into administrative confinement and a disciplinary report shall be written. The signed Form DC1-824 Affidavit for Admission of Drug Use, DC1-824, will be attached to the disciplinary report to be used as evidence in the disciplinary report hearing.
b. The testing officer shall indicate will complete the Inmate Scannable Drug Testing Control Card indicating the positive results of the on-site testing device in the department’s electronic database.
c. If the inmate does not sign Form the Affidavit for Admission of Drug Use, DC1-824, the following steps shall be taken:
i. through iv. No change.
7. Once received from the outside laboratory, the confirmation testing results will be entered into the department’s electronic database onto the respective Inmate Scannable Drug Testing Control Card. If the confirmation testing results are positive, a copy of the results will be attached to the disciplinary report for use as evidence during the disciplinary hearing.
(f) 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 Form DC1-824, 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), 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) of this rule.
(g) No change.
(h) Forms. The following forms referenced in this rule are hereby incorporated by reference. Copies of these forms, unless otherwise indicated, may be obtained from the Forms Control Administrator, Office of Research, Planning and Support Services, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500.
1. Form DC1-823, Acknowledgement of Beverage, effective date February 5, 2001.
2. Form DC1-824, Affidavit for Admission of Drug Use, effective date February 5, 2001.
3. Chain of Custody, effective date February 5, 2001, is a vendor form that may be obtained directly from the vendor or through the Office of the Inspector General, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500.
4. Form DC1-826, Inmate Scannable Drug Testing Control Card, effective date February 5, 2001, may be obtained directly from the vendor or through the Office of the Inspector General, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500.
4.5. Form DC1-827, Reasonable Suspicion Testing Tracking Form, effective date February 19, 2007.
Rulemaking 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, 7-29-08, 8-26-09,_________.