DEPARTMENT OF HEALTH AND HUMAN SERVICES
Indian Health Service
Rockville, Maryland 20852
Refer to: OCPSINDIAN HEALTH SERVICE CIRCULAR NO. 2004-01
Effective Date: 01/29/2004
LAW ENFORCEMENT-REQUESTED BLOOD COLLECTION AT INDIAN
HEALTH SERVICE FACILITIES FOR TESTING OF ALCOHOL LEVEL
- PURPOSE. The purpose of this circular is to clarify Indian Health Service (IHS) support for law enforcement requests to draw blood for alcohol testing. Since the IHS and the Department of Justice (DOJ) share an interest in preventing alcohol-related vehicular incidents, IHS personnel shall cooperate with Federal, State, local, and Tribal law enforcement for this purpose where specifically authorized by law.
- BACKGROUND. The IHS and the DOJ have a shared interest in preventing alcohol-related vehicular incidents. The IHS also agrees that DOJ’s role in investigating and prosecuting people who commit such offenses contributes to the overall public health of Indian communities. A meaningful law enforcement program will contribute to the protection of the health and welfare of the community and/or the identification, treatment, and rehabilitation of individuals with potential or known alcohol abuse problems.
- AUTHORITIES. The Federal Tort Claims Act (FTCA) of 1946, the Economy Act, 31 United States Code (U.S.C.) 1535, the Snyder Act, 25 U.S.C. 131, the Transfer Act, 42 U.S.C. 20011, and the General Counsel Opinion dated July 13,1978.
- POLICY. Indian Health Service personnel should promptly respond to law enforcement requests to draw blood for alcohol testing. Because alcohol rapidly dissipates from the bloodstream, law enforcement officials are often working under significant time constraints imposed by law, and the IHS facility may be the only reasonable resource available for blood draws. This cooperation, however, may be appropriately deferred when clinical judgment indicates a priority exists to provide health care to a medically unstable, seriously ill, or injured patient. The specimens drawn for blood alcohol testing shall be directly and immediately provided to law enforcement officers for chain of custody accounting, including laboratory processing.
Only credentialed IHS health care providers shall order that a blood specimen be drawn when requested by a law enforcement officer to specifically determine an individual's blood alcohol level. The blood sample will not be drawn if one or more of the following exceptions apply:
- Such a blood draw is not authorized by controlling applicable law;
- the patient presents a danger to IHS personnel;
- there is a medical contraindication to the requested blood collection; or
- the patient refuses consent.
- Area Directors. Area Directors shall ensure that each service unit has in place a policy governing the drawing of blood samples to determine alcohol levels that is consistent with this circular and IHS Circular 2001-07, "Tribal Consultation and Participation Policy."
- Service Unit Directors/Chief Executive Officers. Service Unit Directors/Chief Executive Officers will ensure that a written policy is in place ensuring that unless one or more of the exceptions (see Section 4) are present, blood samples will be collected. Assistance may be sought from the appropriate Regional Counsel, as needed.
The service unit policy shall also require that specific items of information be noted in the patient's chart about each blood draw performed at the request of a law enforcement officer or agency. The patient's chart shall indicate the following:
- The name of the requesting officer and/or agency.
- The name of the health care provider ordering the blood draw.
- The date of the request.
- The date and time of the blood draw.
- How the blood sample was labeled.
- The name(s) of the IHS staff drawing, having custody of, and delivering the blood sample to the officer.
- The name of the officer to whom the blood sample was delivered.
A copy of the above information must be provided to the officer along with the blood sample.
- AGREEMENTS FOR DRAWING BLOOD. Drawing a blood specimen to determine its blood alcohol level contributes to the effective operation of the law enforcement program. In situations where the IHS performs this function for another Federal agency, such as the Bureau of Indian Affairs or the Federal Bureau of Investigation, there is an additional requirement that the IHS enter into a formal agreement under the Economy Act, 31 U.S.C. 1535, with that agency. Such an agreement is made with Federal agencies only and not with Tribal or State agencies. These Federal agencies must have detainment powers.
- PROCEDURES FOR DRAWING BLOOD.
- Individual Rights. It is the responsibility of the law enforcement officer to explain to the individual his or her rights before a blood draw is conducted. If the patient agrees to submit to the procedure, the blood draw will be performed. However, if the patient expressly refuses to consent or presents a danger to IHS personnel, the blood will not be drawn, and the appropriate medical record entry shall be made.
- Court Order. If an IHS staff member is presented with a court order directing the drawing of blood or a controlling applicable law requires the drawing of a blood specimen to test the blood alcohol level, the employee shall comply with the statute or court order when compliance is physically possible, it is not dangerous to do so, and the patient does not refuse. If the patient refuses, the IHS staff member should not draw the blood and shall document the patient's refusal. In all cases, the staff member shall provide prompt notification(s) to administrative service unit and/or Area staff of the court order, any blood specimen request, and the resulting actions taken, as provided in the local service unit policy.
- Medical Reasons. Blood alcohol samples drawn for medical reasons are not affected by this policy. If the IHS conducts a blood draw and test to determine alcohol levels for medical purposes and a law enforcement official requests the results of the blood test, the request will be handled in the same manner as any other request for medical records.
- Notification Regarding IHS Policy. Tribal Governments and law enforcement officials requesting blood draws to test for alcohol levels shall be informed of applicable IHS policies and be advised of restrictions on the disclosure of IHS patient information and of the Privacy Act and the Health Insurance Portability and Accountability Act privacy rule.
- Federal Tort Claims Act. The FTCA protects IHS personnel acting within the scope of their duties pursuant to IHS policy. However, Government liability can and should be avoided by obtaining patient consent, whether expressed or implied.
- SUPERSEDURE. This circular supersedes IHS Circular No. 90-5, "Blood Alcohol Testing Requested by Law Enforcement Officials," dated June 11, 1990.
- SEFFECTIVE DATE. This circular is effective on the date of signature.
/Charles W. Grim, DDS/
Charles W. Grim, D.D.S., M.H.S.A.
Assistant Surgeon General
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