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Office of Inmate Advocacy v. Fauver

Decided: February 1, 1988.

OFFICE OF INMATE ADVOCACY, APPELLANT,
v.
WILLIAM H. FAUVER, COMMISSIONER, DEPARTMENT OF CORRECTIONS, RESPONDENT



On appeal from a final administrative decision of Commissioner, New Jersey Department of Corrections.

Shebell, Gaynor and Arnold M. Stein. The opinion of the court was delivered by Shebell, J.A.D.

Shebell

The Office of Inmate Advocacy (OIA) appeals the July 1986 Department of Corrections (DOC) adoption of amendments to the regulations governing medical screening of new inmates in county jails which abandoned the provision in the former regulations that all inmates be tested for infectious diseases. The new regulations provide for testing at the discretion of the county jail's physician.

On October 7, 1985, the DOC proposed an amendment to N.J.A.C. 10A:31-3.12 and 10A:31-3.15. 17 N.J.R. 2343 (1985). The OIA requested a public hearing on the proposal. The

Department heard testimony on January 21, 1986, and received written comments and documentation. The amendments were adopted on May 29, 1986 without modification of the proposal to eliminate testing for infectious diseases; they took effect on July 7, 1986. 18 N.J.R. 1384 (1986).

The OIA argues that the elimination of what it terms "routine, mandatory testing" violates a prisoner's "fundamental right," under the federal and state constitutions, to protection from disease, and that the new regulation should be overturned as arbitrary, capricious, unreasonable, and contrary to public policy and legislative intent.

Formerly, N.J.A.C. 10A:31-3.12(b)1.iv required that new inmates of county jails have "[m]edical screening, including tests for infectious diseases." Under the amendment the regulation was revised to require "[m]edical screening as detailed in N.J.A.C. 10A:31-3.15 Medical, dental and health service care." In turn, the first paragraph of N.J.A.C. 10A:31-3.15(b)11 was changed to read:

11. Upon admission, all inmates shall receive medical screening by a nurse or medical technician, and a physical examination by a licensed medical doctor, and any tests determined to be necessary by the facility's responsible physician. The medical screening and physical examination shall be performed on all inmates prior to their placement in the general population or housing area. The findings shall be recorded on a printed screening form approved by the responsible physician. [Emphasis supplied].

The new regulation requires medical examination by a physician, where none was required before, but leaves to the doctor's discretion whether to order tests for disease. The prior regulation mandated testing for all incoming inmates but did not specifically enumerate the infectious diseases for which testing was required.

The DOC rejected the premise of the objectors that the new regulation would end all testing for infectious diseases: "The Department does not believe that counties will cease testing for infectious disease where such tests are appropriate and are recommended by the responsible county physician." 18 N.J.R. 1385 (1986). The Department conceded that mandatory testing

was "desirable," but determined "that differences in populations, facilities and resources require that some latitude be given each county to develop its policy according to its individual needs." It preferred "to defer to the expertise of local county physicians regarding specific needs" for testing. We have no doubt that in the absence of specific enumeration of the infectious diseases to be tested for in the ...


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