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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.

           *       *       *       *       *       *       *