PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed action:
Amendment of sections 1020.1, 1020.4(a)(1), (2), (c), (d)(2), (3), (4), (e)(1)(iv), (2)(iii), 1020.5(a)(1) and 1020.6 of Title 7 NYCRR.
Statutory authority:
Correction Law, section 112
Subject:
Urinalysis testing.
Purpose:
To improve clarity and readability and refine procedures in response to field experience and new testing equipment.
Text of proposed rule:
Section 1020.1 of Title 7 NYCRR is hereby amended as follows:
Urinalysis test procedures shall be used to verify whether or not an inmate has used drugs [or] and may be used to verify whether or not an inmate has used alcohol.
Section 1020.4(a)(1) of Title 7 NYCRR is hereby amended as follows:
(1) When correctional staff has reason to believe the inmate has used drugs or alcohol and/or the inmate is alleged to have been involved in an act of violent misconduct;
Section 1020.4(a)(2) of Title 7 NYCRR is hereby amended as follows:
(2) When the inmate is found to be in possession of suspected illicit drugs or alcohol or associated paraphernalia or when suspected illicit drugs or alcohol or associated paraphernalia are detected or found in an area controlled, occupied or inhabited by the inmate;
Section 1020.4(c) and (d)(2), (3), (4) of Title 7 NYCRR is hereby amended as follows:
(c) Ordering the inmate to be tested. The inmate ordered to submit a urine specimen for urinalysis testing shall be informed of the underlying reason (whether suspicious, routine, or random) why s/he is being ordered to submit the specimen. If the inmate refuses to submit the specimen s /he shall be informed that this refusal constitutes a violation of facility rules and that s/he may incur the same disciplinary disposition that a positive urinalysis result could have supported. The resultant misbehavior report shall indicate that the inmate was informed of the above.
(2) Security or medical staff shall hand to the inmate the specimen bottle, labeled with the inmate's name and number, the date, and any other relevant identifying information. This information shall be typed or written in indelible ink. The inmate shall also be asked if s/he has been taking any medication in the past month, and the inmate's response shall be noted on the request for urinalysis test form. If the inmate's response is “yes” and the subsequent test results are positive, an inquiry shall be made to medical personnel as to what medications the inmate has received in the past month which may lead to a positive result.
(3) Security or medical staff shall ensure that the inmate submits an unadulterated urine specimen in the specimen bottle provided by witnessing the inmate urinate into the bottle. The inmate must be pat frisked prior to submitting the urine specimen and s/he may be required to wash [his hands] or wear gloves to further ensure that the specimen submitted is that of the inmate. The foregoing shall be conducted by security or medical staff of the same sex, in private and outside the presence of other inmates or staff. Female inmates may be required to urinate into a urine collector or an unused plastic cup, rather than the specimen bottle itself. The contents of the collector or cup shall then be transferred to the specimen bottle by the inmate, or by the witnessing staff person in the presence of the inmate.
(4) If the inmate is unable to provide a urine specimen immediately, s/he shall be detained until s/he is able to provide a urine specimen. Drinking water should be available in an amount not to exceed eight ounces per hour. An inmate who is unable to provide a urine specimen within three hours of being ordered to do so shall be considered to be refusing to submit the specimen. The inmate shall be informed that this refusal constitutes a violation of facility rules and that he may incur the same disciplinary disposition that a positive urinalysis result could have supported. The resultant misbehavior report shall indicate that the inmate was informed of the above.
Section 1020.4(e)(1)(iv) of Title 7 NYCRR is hereby amended as follows:
(iv) If a positive result is obtained on the first test, the procedure followed and the results obtained shall be noted by the operator on the urinalysis procedure form. A second test shall be performed on the same sample [after new positive and negative control tests have been run]. The results of the second test shall be noted on a second urinalysis procedure form. If a positive result is obtained from the second test, the individual performing the urinalysis testing shall cause a misbehavior report to be issued. The inmate's copy of the misbehavior report shall be accompanied by the request for [the] urinalysis test form, the urinalysis procedure form, the inmate's printed [documents] results produced by the urinalysis testing apparatus for the positive tests and a statement of the scientific principles and validity of the testing apparatus.
Section 1020.4(e)(2)(iii) of Title 7 NYCRR is hereby amended as follows
(iii) If a positive result is obtained, a misbehavior report shall be [written] issued. The (inmate's copy of the) misbehavior report shall be accompanied by the request for urinalysis test form, the inmate's test report from the laboratory or facility, a copy of the methods and procedures used by the testing laboratory or facility, and a statement of the scientific principles and validity of the testing apparatus used by the laboratory or facility.
Section 1020.5(a)(1) of Title 7 NYCRR is hereby amended as follows
(1) the urinalysis procedure forms, any printed documents produced by the urinalysis testing apparatus, and [a] the appropriate statement of the scientific principles and validity of the testing apparatus if the facility has urinalysis testing apparatus; or
Section 1020.6 of Title 7 NYCRR is hereby amended as follows
All results obtained in the course of urinalysis testing [shall be assembled and retained on the daily log form or other appropriate form and] shall be entered on the computerized drug testing system.
Text of proposed rule and any required statements and analyses may be obtained from:
Anthony J. Annucci, Deputy Commissioner and Counsel, Department of Correctional Services, Bldg. 2, State Campus, Albany, NY 12226-2050, (518) 485-9613, e-mail: AJAnnucci@docs.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
Statutory Authority:
Section 112 of the Correction Law assigns to the commissioner of correction the powers and duties of management and control of correctional facilities and inmates. This includes, but is not limited to, the power to make rules and regulations for the government and discipline of each correctional facility.
Legislative Objective:
By vesting the commissioner with this rulemaking authority, the legislature intended that procedures be established to conduct random urinalysis tests on inmates to detect use of illicit drugs and alcohol and to deter their importation and possession within the correctional environment.
Needs and Benefits:
The use and possession of illicit drugs and alcohol within the correctional environment present a serious threat to safety and security and are contrary to the law and correctional goals. To detect and deter the use of such substances, the department has relied heavily on random urinalysis testing of the total and of selected groups of inmates.
The Department has found it necessary to establish that any inmate who it is believed has used drugs or alcohol, and/or is alleged to have been involved in drug or alcohol related violent misconduct, or has been found to be in possession of illicit drugs, alcohol, and/or associated paraphernalia will be subject to additional testing.
With technological advances have come improved testing equipment and materials. The department has made use of these advancements which enhance accuracy and streamline the testing procedure, eliminating the need to run repeat control procedures after each test.
These provisions will improve substance abuse enforcement efforts within correctional facilities and deter such abuse.
Amendment of 1020.1 includes the discretion to use urinalysis testing procedures to verify whether or not an inmate has used alcohol.
Amendment 1020.4(a)(1) adds the inmate's alleged involvement in an act of violent misconduct as reason for urinalysis testing.
Amendment of 1020.4(a)(2) includes the possession of associated drug or alcohol paraphernalia as a reason for urinalysis testing.
Amendment of 1020.4(c) and (d)(2)(3)(4) revises all references to inmates as he to s/he.
Amendment of 1020.4(e)(1)(iv) eliminates the practice of running new positive and negative tests, when a second test is performed on the same sample, after an initial positive result is obtained. Updated equipment and enhanced materials have perfected the testing procedures and have eliminated the need to run positive and negative controls more than once daily. Also, the clarity and readability of the section has been improved.
Amendment 1020.5(a)(1) improves the clarity and readability of the section.
Amendment of 1020.6 eliminates the necessity for duplicate record keeping.
Costs:
a. To regulated parties: The proposed amendments do not appear to apply to regulated parties
b. To agency, the state and local governments: no discernible costs
c. Source of information: initial cost comparisons
Local Government Mandates:
There are no new mandates imposed upon local governments by these proposals. These proposed amendments do not apply to local governments.
Paperwork:
There are no new reports, forms or paperwork that would be required as a result of amending these rules.
Duplication:
This proposed amendment does not duplicate any existing State or Federal requirement.
Alternatives:
No alternative was considered.
Federal Standards:
There are no minimum standards of the Federal government for this or a similar subject area.
Compliance Schedule:
The Department of Correctional Services will achieve compliance with the proposed rule immediately.
Regulatory Flexibility Analysis
A regulatory flexibility analysis is not required for this proposal since it will not impose any adverse economic impact or reporting, record keeping or other compliance requirements on small businesses or local governments. This merely improves clarity and readability and also refines procedures for urinalysis testing in response to field experience and updated testing equipment.
Rural Area Flexibility Analysis
A rural area flexibility analysis is not required for this proposal since it will not impose any adverse economic impact or reporting, record keeping or other compliance requirements on rural areas. This proposal merely improves clarity and readability and also refines procedures for urinalysis testing in response to field experience and updated testing equipment.
Job Impact Statement
A job impact statement is not submitted because this proposed rule will have no adverse impact on jobs or employment opportunities. This merely improves clarity and readability and also refines procedures for urinalysis testing in response to field experience and updated testing equipment.
