Sec. 152. Detention conditions
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The Secretary shall— ensure that all detainees are treated humanely and granted the protections described in this section; and comply with the minimum requirements set forth in this section. Each detainee has the right to— prompt and adequate medical care, designed to ensure continuity of care, at no cost to the detainee; care to address medical needs that existed prior to detention; and primary care, emergency care, chronic care, prenatal care, dental care, eye care, mental health care, and other medically necessary specialized care.
Each detainee shall receive— a comprehensive medical, dental, and mental health intake screening, including screening for sexual abuse or assault by a licensed health care professional upon arrival at a detention facility or short-term detention facility; and a comprehensive medical and mental health examination by a licensed health care professional not later than 14 days after the detainee’s arrival at a detention facility. Each detainee taking prescribed medications prior to detention shall be allowed to continue taking such medications, on schedule and without interruption, until and unless a licensed health care professional examines the immigration detainee and decides upon an alternative course of treatment.
Detainees who arrive at a detention facility without prescription medications and report being on such medications shall be evaluated by a qualified health care professional not later than 24 hours after arrival. All decisions to discontinue or modify a detainee’s reported prescription medication regimen shall be conveyed to the detainee in a language that the detainee understands and shall be recorded in writing in the detainee’s medical records. Medication may not be forcibly administered to a detainee to facilitate transport, removal, or otherwise to control the detainee’s behavior.
Involuntary psychotropic medication may only be used, to the extent authorized by applicable law, in emergency situations after a physician has personally examined the detainee and determined that— the detainee is imminently dangerous to self or others due to a mental illness; and involuntary psychotropic medication is medically appropriate to treat the mental illness and necessary to prevent harm. Each detainee shall be provided medically necessary treatment, including prenatal care, prenatal vitamins, hormonal therapies, and birth control.
Female detainees shall be provided with adequate access to sanitary products. Any decision regarding requested medical care for a detainee— shall be made in writing by an on-site licensed health care professional not later than 72 hours after such medical care is requested; and shall be immediately communicated to the detainee. Detention facilities, in conjunction with the Department of Homeland Security, shall ensure that detainees, medical providers, and legally appointed advocates have the opportunity to appeal a denial of requested health care services by an on-site provider to an independent appeals board.
The appeals board shall include health care professionals in the fields relevant to the request for medical or mental health care. Not later than 7 days after an appeal is received by the appeals board under this paragraph, or earlier if medically necessary, the appeals board shall issue a written decision regarding the appeal and notify the detention facility and the appellee of such decision. The Secretary shall respond within 72 hours to any request by an on-site medical provider for authorization to provide medical or mental health care to a detainee.
If the Secretary denies or fails to grant a request described in subparagraph (A), the Secretary shall immediately provide a written explanation of the reasons for such decision to the on-site medical provider and the detainee. The on-site medical provider and the detainee (or the detainee’s legally appointed advocate) shall be permitted to appeal the denial of, or failure to grant, a request described in subparagraph
(A)to an independent appeals board. Not later than 7 days after an appeal is received by the appeals board under this paragraph, or earlier if medically necessary, the appeals board shall issue a written decision regarding the appeal and notify the on-site medical provider, the detainee, and the detention facility of such decision. If a licensed health care professional determines that a detainee has a medical or mental health care condition, is pregnant, or is a nursing mother, the Secretary shall consider releasing the detainee on parole, on bond, or into a secure alternatives program. If a detainee described in subparagraph
(A)is not initially released under this paragraph, the Secretary shall periodically reevaluate the situation of the detainee to determine if such a release would be appropriate. Upon removal or release, all detainees with medical or mental health conditions and women who are pregnant, post-natal, and nursing mothers shall receive discharge planning to ensure continuity of care for a reasonable period of time. The Secretary shall maintain complete, confidential medical records for every detainee and make such records available to a detainee or to individuals authorized by the detainee not later than 72 hours after receiving a request for such records. Immediately upon a detainee’s transfer between detention facilities, the detainee’s complete medical records, including any transfer summary, shall be provided to the receiving detention facility. Detention facilities shall provide to detainees reasonable and equitable access to working telephones, and the ability to contact, through confidential toll-free numbers, legal representatives, family courts, child protective services, foreign consulates, the immigration courts, Federal and State courts in which the detainee is, or may become, involved in a legal proceeding, the Board of Immigration Appeals, nongovernmental organizations designated by the Secretary, all government immigration agencies and adjudicatory bodies including the Office of the Inspector General of the Department of Homeland Security and the Office for Civil Rights and Civil Liberties of the Department of Homeland Security, in addition to persons and offices contacted for the purpose of obtaining legal representation. Detention facilities shall provide to detainees access to telephones during facility working hours and on an emergency basis in accordance with the following: The detention facility shall provide to each detainee a copy of its rules governing telephone access and shall post those rules, together with an explanation of how to make calls, within sight of each telephone available to detainees. These rules shall be translated into Spanish and two additional languages spoken by a substantial part of the detainee population of the detention facility. If a detention facility has determined that more than 5 percent of its population is of a certain language group, the document should be translated into that language group’s appropriate language. The detention facility shall also provide oral interpretation and written translation assistance to detainees in reading any relevant materials required to request telephone access, including oral interpretation assistance for those who are not literate in English, Spanish, and other languages spoken by the detainee population of the facility. The rates charged for telephone calls shall be reasonable and equitable and shall not significantly impair detainees’ access to telephones. The detention facility shall not restrict the number of calls detainees may place to their legal representatives or consular officials, or to any others for the purpose of obtaining legal representation, or limit the duration of those calls by rule or automatic cut-off, unless necessary for security reasons. The detention facility shall have a reasonable number of working phones available to detainees, and at a minimum one phone per each 25 users. The detention facility shall ensure the privacy of telephone conversations between detainees and legal representatives or consular officials, and calls made for the purpose of obtaining legal representation. Means to ensure privacy may include the use of privacy panels, the placement of phones in housing pods, and other appropriate measures. Detainees’ telephone calls to a court, legal representative, or consular official, or for the purpose of obtaining legal representation, shall not be monitored or recorded without a court order and without prior notification to the detainee. The detention facility shall take and deliver telephone messages to detainees as promptly as possible, but no less often than twice a day. Detainees shall be permitted to make confidential telephone calls promptly within 8 hours of receipt of messages left by a court, legal representative, prospective legal representative, or consular official as soon as reasonably possible after the delivery of the message. Detention facilities shall take all necessary measures to prevent sexual abuse of detainees, including sexual assaults, and shall observe the minimum standards under the Prison Rape Elimination Act of 2003 ( 42 U.S.C. 15601 et seq. ). Where sexual abuse occurs, detention facilities shall ensure that— prompt and appropriate medical intervention is taken to minimize medical and psychological trauma; a medical history is taken and a physical examination is conducted by qualified and culturally appropriate licensed medical professionals to determine the extent of physical injury and whether referral to another medical facility is indicated; prophylactic treatment and follow-up for sexually transmitted diseases are provided within the appropriate timeframe; the case is evaluated by a qualified and culturally appropriate mental health professional for crisis intervention counseling and long-term follow-up; victims are separated from their abusers and are considered for release on parole or for an alternative to detention program— shall not result in the transfer of the victim away from counsel absent exceptional circumstances; and shall never result in the placement of the victim in solitary confinement; and any and all medical and mental health records arising out of a detainee’s allegation of sexual abuse shall be treated as confidential, as required by the Health Insurance Portability and Accountability Act of 1996. A detention facility shall not subject any person to punishment or any other form of retaliation for reporting incidents of sexual abuse. In all cases of alleged sexual abuse, the detention facility shall conduct a thorough and timely investigation and shall provide to the Secretary of Homeland Security a report of the circumstances and the response of the detention facility. If the report is not completed within 30 days after alleged sexual abuse comes to the attention of the detention facility, the detention facility shall submit to the Secretary of Homeland Security a description of the status of the investigation and an estimated date of completion 30 days after the alleged sexual abuse comes to the attention of the detention facility and every 30 days thereafter until the report is provided to the Secretary of Homeland Security. The report required by this subsection shall include at minimum a determination of whether the alleged sexual abuse occurred, an in-depth analysis of the relevant facts including the causes of any sexual abuse that may have occurred and whether and to what extent the alleged abuse indicates a failure of policy, a failure of training, a failure of oversight, or a failure of management, and a description of the actions that the facility will take to prevent the occurrence of similar incidents in the future and a plan for monitoring the implementation of those actions. The detention facility shall provide to the Secretary of Homeland Security periodic reports monitoring the implementation of the plan in accordance with the schedule set forth in such plan as approved by the Secretary of Homeland Security. In adopting procedures governing the transfer of individuals detained under the Immigration and Nationality Act ( 8 U.S.C. 1226 ), the Secretary of Homeland Security shall prohibit transfer of a detainee if such transfer would— negatively affect an existing attorney-client relationship; negatively affect the detainee's legal proceedings, including merits or calendar hearings, or a pending application with United States Citizenship and Immigration Services or the Executive Office for Immigration Review, by— limiting the detainee's access to securing legal representation; limiting the detainee's ability to prepare a legal defense to removal; or removing the detainee from the legal venue of such proceeding; negatively affect the detainee's health and medical fitness; or to the extent it does not conflict with clauses (i), (ii), and (iii)— place the detainee in a location more distant from the detainee's residence than the original detention location; or place the detainee in a location more distant from family members than the original detention location. Unless exigent circumstances dictate an immediate transfer— the Secretary of Homeland Security shall provide not less than 72 hours notice to any detainee prior to transferring the detainee to another detention facility; detainees shall be afforded at least one toll-free call and the Secretary of Homeland Security shall notify the detainee’s legal representative or if unrepresented, an adult family member or other person designated by the detainee, of the transfer and the detainee’s new location by telephone and in writing; if removal proceedings are pending, the Secretary of Homeland Security shall also promptly notify the Immigration Court, Board of Immigration Appeals, or the Circuit Court of Appeals, as appropriate of the transfer and the detainee’s new address; and the Secretary of Homeland Security shall not transfer any detainee who has already requested, and is awaiting, a bond hearing or a bond redetermination hearing. The Secretary may transfer a detainee who has an existing attorney-client relationship to an alternate detention facility if such transfer is necessitated by a highly unusual emergency, such as a natural disaster or comparable emergency. If the Secretary determines that a transfer is necessary due to a highly unusual emergency, the Secretary shall ensure that the detainee’s legal rights are not prejudiced and the existing attorney-client relationship is not impaired, including evaluating the location of the detention facility based on it proximity to the detainee’s counsel or nongovernmental or pro bono organizations providing free or low cost immigration legal services. In cases in which a detainee is transferred, the Secretary shall make a record of the reasons and circumstances necessitating such transfer.
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