Minnesota Department of Corrections
PURPOSE: To establish a safe and efficient method for obtaining a blood sample from an offender who refuses to comply with blood draws ordered by the courts or after an employee experiences a significant blood/body fluid exposure.
APPLICABILITY: All facilities.
POLICY: When department staff sustain a significant exposure to an offender's blood or other potentially infectious materials and the offender refuses to supply a blood specimen for testing, the warden/superintendent or designee of the facility may authorize an involuntary blood draw from an offender once a court order has been obtained.
The warden/superintendent or designee may also authorize an involuntary blood draw from an offender subject to mandatory DNA specimen collection, or if a court order for an involuntary blood draw has been received and the offender refuses to supply a blood specimen for testing.
Blood - human blood, human blood components, and products made from human blood.
Bloodborne pathogen – pathogenic microorganisms present in human blood that can cause disease in humans. These pathogens include, but are not limited to, hepatitis B virus (HBV), hepatitis C virus (HCV), and human immunodeficiency virus (HIV).
Bloodborne pathogen tests - Hepatitis B Surface Antigen
Hepatitis C Antibody – If positive get: Hepatitis C RNA by PCR Quantitative
HIV Antibody – If positive get: Western Blot – If positive get: HIV Viral Load
If offender record indicates any positive results, contact the department medical director for specific lab orders.
Other Potentially Infectious Materials (OPIM) - includes human body fluids--semen, vaginal secretions, cerebrospinal fluid, synovial fluid, pericardial fluid, peritoneal fluid, amniotic fluid, saliva in dental procedures, any body fluid visibly contaminated with blood, and all body fluids in situations where it is difficult or impossible to differentiate between body fluids.
Significant exposure - defined by Minn. Stat. §144.761, subd. 7, as "(1) contact, in a manner supported by contemporary epidemiological research as a method of HIV or hepatitis B or hepatitis C transmission, of the broken skin or mucous membrane of [correctional employees] with [an individual's] blood, amniotic fluid, pericardial fluid, peritoneal fluid, pleural fluid, synovial fluid, cerebrospinal fluid, semen, vaginal secretions, or bodily fluids grossly contaminated with blood; (2) a needle stick, scalpel or instrument wound, or other wound inflicted by an object that is contaminated with blood, and that is capable of cutting or puncturing the skin of [an employee]; or (3) an exposure that occurs by any other method of transmission recognized by contemporary epidemiological standards as a significant exposure."
A. In the event of a department staff exposed to offender blood and/or body fluids:
1. When a department employee believes he/she may have experienced a significant exposure to an offender's blood and/or body fluids, he/she may request a bloodborne pathogen test of the offender's blood. Upon review of the request, the department medical director may authorize the testing.
2. Minn. Stat. §241.331, subd. 2 requires the following conditions to be met before the department seeks a court order to test the offender's blood for bloodborne pathogens:
a) A licensed physician (or independent practitioner working under physician direction) determines a significant exposure has occurred.
b) The licensed physician for the affected department employee needs the offender's bloodborne pathogens test result to begin, continue, modify, or discontinue treatment of the employee.
c) The affected department employee provides a sample of his/her blood for bloodborne pathogens testing.
3. When seeking the offender's consent for the bloodborne pathogens test, a registered nurse will inform the offender that:
a) the test results are for medical purposes only and may not be used by the department as evidence against the offender in any criminal or civil proceeding.
b) the test results will be reported to the requesting department employee’s health care practitioner by the department medical director without the offender's name or other uniquely identifying information, and the department employee will be informed of confidentiality requirements and penalties before the employee's health care practitioner discloses any test results.
c) the test results cannot be used by health insurance providers to make a decision regarding providing health insurance coverage, as per Minn. Stat. §72A.20 subd. 29.
d) the offender may refuse to provide a blood sample, and the offender's refusal may result in a request for a court order to require the offender to provide a blood sample.
4. Before disclosing any information about the offender to the affected department employee, human resources will inform the affected employee of confidentiality requirements and penalties contained in Minn. Stat. §241.34 for unauthorized release of offender medical information, and also inform the employee that per Minn. Stat. §72A.20 subd. 29 the test result cannot be used by health insurance providers to make a decision regarding health insurance coverage.
5. A registered nurse must attempt to obtain the offender's consent for bloodborne pathogens testing. If the offender is incapacitated or otherwise unable to provide consent, department Health Services staff will seek consent from a representative for the offender. The department medical director is to be notified of all significant exposures.
a) Consent is not required if the offender is incapacitated or otherwise unable to provide consent and the department has made reasonable efforts to obtain the representative's consent and consent cannot be obtained within 24 hours of a significant exposure.
b) If testing of available blood occurs without consent because the offender is unconscious or unable to provide consent and a representative cannot be located, the department will notify the offender or representative of the information required in step 3 above, whenever it is possible to do so.
c) If an offender dies before an opportunity to consent to bloodborne pathogens testing, the department may test the offender's blood without consent.
6. If the offender does not consent to providing a blood sample for testing, the facility litigation coordinator or designee will notify the department litigation coordinator in Central Office to file a petition for issuance of a court order requiring the offender to provide a blood sample for testing.
a) The petition must be filed in the county district court in which the offender is confined.
b) Department staff will serve the petition on the offender 3 days before a hearing on the petition.
c) The petition must include one or more affidavits attesting that:
1) The department has followed the procedures of Minn. Stat. §241.33 in an attempt to obtain the offender's bloodborne pathogen test results;
2) A licensed physician, knowledgeable about the most current recommendations of the United States Public Health Service, has determined that the affected employee experienced a significant exposure;
3) A licensed physician has documented that the affected employee has provided a blood sample and consented to testing it for bloodborne pathogens, and that the offender's bloodborne pathogen test results are needed for beginning, continuing, modifying, or discontinuing medical treatment for the employee.
7. A Health Services nursing staff will notify the department medical director/designee of the offender blood test results.
8. The department medical director will inform the employee’s health care practitioner of the offender blood test results. The results will not contain the offender’s name or other uniquely identifying information.
9. The facility Health Services practitioner will inform the offender of his/her blood test results.
B. Mandatory DNA specimen collection
1. In the event of an offender's refusal to provide a buccal swab sample required by mandatory DNA specimen collection, Health Services staff will complete an incident report and notify the watch commander of the refusal.
2. The watch commander will notify the warden/superintendent the offender is refusing to comply with the procedure to supply a buccal swab specimen for testing.
3. The warden/superintendent will consult with the Assistant Commissioner of Facility Services or designee and determine whether a blood sample will be drawn from the refusing offender.
4. If the warden/superintendent determines the blood sample will be drawn, representative security and Health Services staff will meet with the offender and give a direct order to him/her to submit to the blood draw.
5. If the offender fails to comply, the warden/superintendent may issue written authorization to Health Services staff to complete the involuntary blood draw.
C. Court-ordered involuntary blood draws
1. Once a court order has been obtained regarding the involuntary blood draw, representative security and Health Services staff will meet with the offender and give a direct order to submit to the blood draw.
2. If the offender fails to comply, the warden/superintendent may issue written authorization to facility staff to complete the involuntary blood draw.
D. Involuntary blood draw procedure
1. Security staff will restrain the offender in the presence of supervisory security staff using the minimal amount of force necessary to safely complete the blood draw.
2. The offender will be positioned on his/her back with the blood draw access site fully exposed.
3. The supervisory staff will consult with the warden/superintendent if the restraint cannot be accomplished in a safe manner.
4. A qualified heath services staff will ensure that the offender's blood sample is drawn, processed and forwarded to the designated laboratory to determine HIV, HBV, and HCV infectivity, or testing as ordered.
5. The Health Services staff performing the blood draw will document the procedure in the medical record.
a) Mandatory DNA testing
Health Services staff will send test results to the Minnesota Bureau of Criminal Apprehension.
b) Employee exposure testing - if the offender has given consent for the test, the department medical director will transmit the test results to the employee’s health care provider to be communicated to the affected employee without the offender's name or other uniquely identifying information. Health Services staff will also enter the test results in the offender's medical record.
c) Other court ordered tests
Health Services staff will distribute the test results as articulated on the court order.
REFERENCES: Policy 203.040, "DNA Analysis of Offenders."
SUPERSESSION: Policy 500.240, "Involuntary Blood Draw," 10/6/09.
All facility policies, memos, or other communications whether verbal, written, or transmitted by electronic means regarding this topic.
Nanette M. Larson, Director
David R. Crist, Deputy Commissioner
Chris Bray, Deputy Commissioner