II 116th CONGRESS 2d Session S. 4536 IN THE SENATE OF THE UNITED STATES September 8, 2020 Ms. Warren (for herself, Mrs. Murray , Mr. Booker , Mr. Blumenthal , Mr. Markey , Mr. Sanders , Mr. Durbin , Ms. Baldwin , Mr. Casey , Mr. Wyden , Mr. Van Hollen , and Mr. Merkley ) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To report data on COVID–19 in Federal, State, and local correctional facilities, and for other purposes.

1. Short title This Act may be cited as the COVID–19 in Corrections Data Transparency Act . 2. Definitions In this Act: (1) COVID– 19 The term COVID–19 means Coronavirus Disease 2019. (2) COVID–19 diagnostic test The term COVID–19 diagnostic test means a test— (A) that is an in vitro diagnostic product (as defined in section 809.3 of title 21, Code of Federal Regulations, or any successor thereto) for the detection of SARS–CoV–2 or the diagnosis of the virus that causes COVID–19; and (B) the administration of which— (i) is approved, cleared, or authorized under section 510(k), 513, 515, or 564 of the Federal Food, Drug, and Cosmetic Act ( 21 U.S.C. 360(k) , 360c, 360e, 360bbb–3); (ii) the developer has requested, or intends to request, emergency use authorization under section 564 of the Federal Food, Drug, and Cosmetic Act ( 21 U.S.C. 360bbb–3 ), unless and until the emergency use authorization request under such section 564 has been denied or the developer of such test does not submit a request under such section within a reasonable timeframe; (iii) is developed in and authorized by a State that has notified the Secretary of Health and Human Services of its intention to review tests intended to diagnose COVID–19; or (iv) is another test that the Secretary determines appropriate in guidance. (3) COVID–19 emergency data collection period The term COVID–19 emergency data collection period means the period beginning on the date of enactment of this Act and ending on the date that is 1 year after the date on which the public health emergency declaration under section 319 of the Public Health Service Act ( 42 U.S.C. 247d ), with respect to COVID–19, terminates. (4) State or local correctional facility The term State or local correctional facility — (A) means a correctional facility within the jurisdiction of a State or unit of local government; and (B) includes— (i) a municipal, regional, or county jail; (ii) a State prison; (iii) a State-run boot camp prison; (iv) a boot camp prison that is contracted out by the State; (v) a State or local contract facility; (vi) a juvenile detention facility; (vii) a juvenile secure correctional facility; and (viii) any other local or State correctional facility, including any juvenile facility. 3. Bureau of prisons and United States Marshals Service data collection (a) Bureau of Prisons The Director of the Bureau of Prisons shall— (1) on a daily basis during the COVID–19 emergency data collection period, make available to the public on the website of the Bureau of Prisons a report on the information described in section 6, with respect to incarcerated persons and staff; and (2) not later than 14 days after the date on which the Director of the Centers for Disease Control and Prevention publishes the guidance required under section 5(a), but in no case later than 45 days after the date of enactment of this Act, and not less frequently than once every 7 days thereafter until the date on which the COVID–19 emergency data collection period ends, submit to the Director of the Centers for Disease Control and Prevention every 7 days, a report on the information described in section 6, with respect to incarcerated persons and staff. (b) United States Marshals Service The Director of the United States Marshals Service shall— (1) on a daily basis during the COVID–19 emergency data collection period, make available to the public on the website of the United States Marshals Service a report on the information described in section 6, with respect to incarcerated persons in the custody of the United States Marshals Service, including individuals held at or employed by a State or local correctional facility contracted by Federal entities; and (2) not later than 14 days after the date on which the Director of the Centers for Disease Control and Prevention publishes the guidance required under section 5(a), but in no case later than 45 days after the date of enactment of this Act, and not less frequently than once every 7 days thereafter until the date on which the COVID–19 emergency data collection period ends, submit to the Director of the Centers for Disease Control and Prevention every 7 days, a report on the information described in section 6, with respect to incarcerated persons and staff. 4. State and local correctional facility data collection (a) State and local reports (1) In general Not later than 14 days after the date on which the Director of the Centers for Disease Control and Prevention publishes the guidance required under section 5(a), but in no case later than 45 days after the date of enactment of this Act, and not less frequently than once every 7 days thereafter until the date on which the COVID–19 emergency data collection period ends— (A) the head of each State department of corrections and the head of each State juvenile justice agency shall make available to the public on the website of the department, and submit to the public health authority of the State, the data described in section 6, with respect to incarcerated persons and staff; and (B) the head of each State or local correctional facility shall submit to the public health authority of the State or unit of local government, as the case may be, the data described in section 6, with respect to incarcerated persons and staff. (2) Submission of information to the CDC Not later than 24 hours after a State or local public health authority receives data under paragraph (1), the head of the public health authority shall submit the data to the Director of the Centers for Disease Control and Prevention. (3) Byrne grant amounts (A) In general If a State or jurisdiction within a State fails to comply with the requirements under paragraphs (1) and (2) in a fiscal year, the amount the State would otherwise be awarded in the following fiscal year under subpart 1 of part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968 ( 34 U.S.C. 10151 et seq.) shall be reduced by 10 percent. (B) Report on compliance to DOJ For purposes of carrying out this paragraph, the Director of the Centers for Disease Control and Prevention shall, not later than 30 days after the date on which the Director first receives data from a State or local public health authority and once every 30 days thereafter, submit to the Attorney General a report detailing which States, if any, are not in compliance with this Act. (b) Authorization of appropriations There is authorized to be appropriated to the Director of the Centers for Disease Control and Prevention such sums as are necessary to carry out this section. 5. CDC Reports (a) Guidance Not later than 30 days after the date of enactment of this Act, the Director of the Centers for Disease Control and Prevention shall issue guidance for Federal, State, and local correctional facilities on— (1) the categories of data required to be reported under this Act; and (2) how the Director will determine whether a State is in compliance with this Act. (b) Publication on website Not later than 7 days after data is reported to the Centers for Disease Control and Prevention under section 3 or 4, the Director of the Centers for Disease Control and Prevention shall make the data available to the public on the website of the Centers for Disease Control and Prevention, including all data reported by the Bureau of Prisons, the United States Marshals Service, and State and local correctional facilities. (c) Reports to Congress Not later than 60 days after the date of enactment of this Act, and every 30 days thereafter until the date on which the COVID–19 emergency data collection period ends, the Director of the Centers for Disease Control and Prevention shall compile and submit to Congress, including the Committees on the Judiciary and Health, Education, Labor, and Pensions of the Senate and the Committees on the Judiciary and Energy and Commerce of the House of Representatives, a report on the information submitted by the Bureau of Prisons, the United States Marshals Service, and the head of each State department of corrections under sections 3 and 4, respectively. 6. COVID–19 data (a) In general The data described in this section is the following data for each Federal, State, or local correctional facility within a State: (1) Testing numbers COVID–19 diagnostic testing, including cumulative and new (since the previous report) counts of— (A) the number of incarcerated persons tested for COVID–19, disaggregated by first-time COVID–19 diagnostic tests and retests; (B) the number of correctional facility staff tested for COVID–19, disaggregated by first-time COVID–19 diagnostic tests and retests; and (C) the COVID–19 diagnostic test developer and test name for each COVID–19 diagnostic test conducted. (2) Test results COVID–19 diagnostic testing outcomes, including cumulative and new (since the previous report) counts of— (A) the number of confirmed active cases of COVID–19 among incarcerated persons, disaggregated by first-time COVID–19 diagnostic tests and retests; (B) the number of confirmed negative cases of COVID–19 among incarcerated persons, disaggregated by first-time COVID–19 diagnostic tests and retests; (C) the number of confirmed active cases of COVID–19 among correctional facility staff, disaggregated by first-time COVID–19 diagnostic tests and retests; (D) the number of confirmed negative cases of COVID–19 among correctional facility staff, disaggregated by first-time COVID–19 diagnostic tests and retests; (E) the number of COVID–19 diagnostic tests pending results, disaggregated by incarcerated persons and correctional facility staff; (F) the average time between testing an incarcerated person for COVID–19 and receiving the results of the COVID–19 diagnostic test; and (G) the average time between testing a correctional facility employee for COVID–19 and receiving the results of the COVID–19 diagnostic test. (3) Case outcomes COVID–19 case outcomes, including cumulative and new (since the previous report) counts of— (A) the number of incarcerated persons hospitalized for a case of COVID–19; (B) the number of incarcerated persons who have recovered from COVID–19; (C) the number of incarcerated persons currently in quarantine or medical isolation for infection with or exposure to COVID–19; (D) the number of incarcerated persons who have completed quarantine or been released from medical isolation; (E) the number of incarcerated persons who have died from a case of COVID–19; (F) the number of correctional facility staff hospitalized for a case of COVID–19; (G) the number of correctional facility staff who have recovered from COVID–19; and (H) the number of correctional facility staff who have died from a case of COVID–19. (4) Release of incarcerated persons In the case of incarcerated persons, data related to the release of such incarcerated persons, including individuals released to home confinement and pursuant to compassionate release, as a result of the COVID–19 public health emergency. (5) Daily population Average daily population for the week preceding the COVID–19 emergency data collection period and for all weeks during this period. (b) Disaggregation of data The data described in this section shall be disaggregated by sex, sexual orientation, gender identity, age, race, ethnicity, disability, and geography (including county and State). (c) Incarcerated persons data The data described in this section with respect to incarcerated persons who are serving a term of imprisonment and who are infected with COVID–19 shall include, to the extent practicable, the term of imprisonment imposed on such incarcerated persons and the time served on such term of imprisonment. 7. Privacy protections Any data collected, stored, received, or published under this Act shall— (1) be so collected, stored, received, or published in a manner that protects the privacy of individuals whose information is included in such data; (2) be de-identified or anonymized in a manner that protects the identity of all individuals whose information is included in such data; (3) comply with privacy protections provided under the regulations promulgated under section 264(c) of the Health Insurance Portability and Accountability Act of 1996 ( 42 U.S.C. 1320d–2 note); and (4) be limited in use for the purpose of public health and be protected from all other internal use by any entity that collects, stores, or receives the data, including use of such data in determinations of eligibility (or continued eligibility) in health plans, and from any other inappropriate uses.