Section 1 Short title
This Act may be cited as the “Families Deserve to Know Act”.
Families Deserve to Know Act
A BILL
To establish Federal policies and procedures to notify the next-of-kin or other emergency contact upon the death, serious illness, serious injury, or hospitalization of an individual in the custody of U.S. Immigration and Customs Enforcement, and for other purposes.
Sec. 2 Emergency contact notification policies and procedures
In general— Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall implement policies and procedures for U.S. Immigration and Customs Enforcement to notify the next-of-kin or other emergency contact in the event of a covered death, or the serious illness or serious injury of an individual in custody, consistent with the requirements of this section.
Emergency contact information— The policies and procedures described in subsection (a) shall address the collection and use of emergency contact information, including the following:
Information requested upon taking custody— At the time of taking custody, U.S. Immigration and Customs Enforcement shall ask the individual—
for the name, last known address, telephone number, and email of any person or persons who shall be notified in the event of the individual’s death or serious illness or serious injury, and who are authorized to receive the individual’s body;
the order in which the individual prefers such emergency contacts to be notified;
whether the individual would like a faith leader to participate in the notification process and, if so, of what denomination; and
whether the individual has in place a medical proxy decision maker or medical power of attorney, advance directive, or do not resuscitate order.
Modification— U.S. Immigration and Customs Enforcement shall permit an individual in custody to modify the individual’s emergency contact information at any time and shall affirmatively offer each individual an opportunity to review and update such information not less frequently than every 90 days.
Language access— The request, form, and any disclosure required under this subsection shall be provided in a language the individual understands, with interpretation services provided as necessary.
Standardized form; disclosure; custodial record— The policies and procedures shall include—
a standardized template form for recording the information described in paragraph (1);
a requirement that U.S. Immigration and Customs Enforcement provide the individual information about the purpose and permissible uses of the information, including the limitations under subsection (f); and
a requirement that the completed form be included in the individual’s custodial record.
Notification requirements— The policies and procedures described in subsection (a) shall describe the notification requirements in the event of a covered death or the serious illness or serious injury of an individual in custody, including the following:
Notification timeframe—
Notification of death— In the event of a covered death, U.S. Immigration and Customs Enforcement shall notify the individual’s emergency contact not later than 12 hours after the declaration of death or after U.S. Immigration and Customs Enforcement learns of the death, whichever is earlier, and between the hours of 6:00 a.m. and midnight in the local time of the person notified.
Notification of serious illness or serious injury— In the event of a serious illness or serious injury suffered by an individual in custody, U.S. Immigration and Customs Enforcement shall notify the individual’s emergency contact as soon as practicable after the serious illness or serious injury occurs, and in any event not later than 12 hours after the individual is admitted to a hospital, undergoes emergency surgery, is admitted to an intensive care unit, or becomes incapacitated and unable to communicate, and not later than 24 hours after any other serious illness or serious injury. The notification shall occur prior to any required medical procedure, where practical and if such timeframe will not delay treatment, and in any event not later than any medical discharge or clearance. The time-of-day limitation in subparagraph (A) shall not apply to a notification under this subparagraph.
Consular coordination— U.S. Immigration and Customs Enforcement shall coordinate with the appropriate consulate as required by any treaty or agreement, except that consular coordination shall not delay any notification required by this paragraph.
Counsel of record— In the event of a covered death or a serious illness or serious injury suffered by an individual in custody, U.S. Immigration and Customs Enforcement shall notify any counsel of record for the individual in any pending immigration proceeding or Federal court proceeding within the same timeframe applicable under this paragraph.
Death notification information required— Each notification required to be made under paragraph (1) related to a covered death shall include—
all pertinent circumstances surrounding the death, including the official time of death;
the cause of death (if determined);
whether the death is under investigation and the reason for opening an investigation;
the facility at which the individual was held and the hospital, if any, to which the individual was transported; information concerning the disposition of the individual’s remains and property; and
a point of contact at U.S. Immigration and Customs Enforcement.
Serious illness or serious injury notification information required— Each notification required to be made under paragraph (1) related to a serious illness or serious injury suffered by an individual in custody shall include—
the cause and nature of the event;
whether the individual is incapacitated, unconscious, or unable to speak;
whether any medical procedures or lifesaving measures were or will be performed;
the name and location of the facility and provider providing treatment;
contact information for the responsible official of U.S. Immigration and Customs Enforcement; and
information regarding procedures for communicating with the individual, when medically appropriate.
Compassionate and professional notification— Standards for providing notification in a compassionate and professional manner, in a language the recipient understands, including—
a description of what information cannot be included in a voicemail;
an offer for an in-person or virtual face-to-face meeting in the event a death notification is provided during a live telephone conversation; and
a requirement that notifications be provided in a private setting and, when practicable, by a person trained in notification best practices.
Notification opt out— Standards to ensure that notification does not occur where the individual, while able to communicate, is advised of the right to notification and instructs U.S. Immigration and Customs Enforcement not to provide it, or requests the opportunity to provide such notification personally, in which case U.S. Immigration and Customs Enforcement shall provide the individual an opportunity to deliver such notification within the applicable time period.
Belongings and remains— Standards for handling the belongings and remains of an individual whose death is a covered death, including—
returning the belongings and remains, if desired, to the emergency contact and providing at least 7 days for a decision as to disposition;
assistance, in coordination with the appropriate consulate, in the repatriation of remains where requested by the family;
follow-up with the emergency contact regarding the outcome of any review or investigation not available at the time of initial notification; and
documentation within the custodial record of any unclaimed or rejected claim for the body or property.
Documentation of attempts— Requirements that each notification attempt be contemporaneously documented and maintained within the custodial record, including—
the staff name and contact information of each person responsible for the notification;
the date, time, and method of each successful and unsuccessful attempt;
the name and contact information of each person to whom an attempt was made;
any acknowledgment received; and
the reason for any failed attempt or delay.
Additional procedures in the event of serious illness or injury— Standards to ensure that U.S. Immigration and Customs Enforcement—
implements medical proxy, medical power of attorney, advance directive, and do not resuscitate orders;
provides meaningful opportunity for communication between the emergency contact and the medical staff caring for the individual;
ensures emergency contacts are given a meaningful opportunity to visit a seriously ill or seriously injured individual, with in-person visitation when practicable and a written response to any visitation request within 48 hours; and
provides the individual’s emergency contact information to an outside hospital and allows the hospital to follow its established bylaws concerning communication with next-of-kin.
Autopsy notifications— Requirements that, in the event an autopsy is performed following a covered death, the emergency contact be informed not later than 12 hours after any determination that an autopsy will be performed, including the reason for the autopsy and the procedures for obtaining the report, and that a copy of the autopsy report and results be made available to the emergency contact upon completion.
Written notification plan— The policies and procedures described in subsection (a) shall require the Director of U.S. Immigration and Customs Enforcement to develop a written notification plan conforming to this section, published on the website of the Department of Homeland Security in English, Spanish, and the other languages most commonly spoken by individuals in the custody of U.S. Immigration and Customs Enforcement, and made accessible to individuals in custody through inclusion in intake information, handbooks, and other materials distributed upon taking custody.
Delay exception— A notification required by this section may be delayed only if the Secretary of Homeland Security determines, in writing, that immediate notification would present a specific and articulable threat to public safety, would materially interfere with an active criminal investigation, or would place the individual at substantial risk of serious harm. Any delay under this subsection shall be reviewed every 24 hours, shall be documented in the custodial record, and shall not exceed 72 hours unless personally approved in writing by the Secretary.
Confidentiality— Information collected under this Act by U.S. Immigration and Customs Enforcement, or any agent or contractor acting on behalf of U.S. Immigration and Customs Enforcement, may not be disclosed or used for any purpose except as provided in this Act.
Voluntary collection— Nothing in this Act shall be construed to require an individual in custody to provide emergency contact information. U.S. Immigration and Customs Enforcement may not attempt to coerce or persuade the individual to provide such information, and may not impose any penalty, fine, or fee on the individual for declining to provide such information or for providing information later determined to be inaccurate.
Inadmissibility— No information disclosed or used in violation of this Act may be admitted into any State, Federal, or other court, or into any immigration proceeding, as evidence or for any other purpose, except in the case of information that has been discovered through independent means.
Sec. 3 Applicability
Covered deaths— The requirements of this Act apply with respect to every covered death, including a death occurring during or at the conclusion of a serious illness or serious injury suffered by an individual in custody and a death occurring within 30 days after an individual is released from custody, notwithstanding any release from custody effected during a medical emergency or episode of medical treatment and notwithstanding any policy, directive, or guidance of the Department of Homeland Security.
Contract and intergovernmental facilities—
In general— This Act applies with respect to every covered facility without regard to the ownership or operation of the facility.
Contract terms— Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall ensure that every contract, subcontract, and intergovernmental service agreement for the operation of a covered facility requires compliance with this Act as a material term, requires immediate reporting to U.S. Immigration and Customs Enforcement of any death or a serious illness or serious injury suffered by an individual in custody, and provides that failure to comply—
shall result in the civil penalties described in paragraph (3); and
in the case of 2 or more such failures at the same covered facility during any 12-month period, shall result in termination of the contract, subcontract, or agreement, and debarment of the contractor from any contract or agreement for the operation of a covered facility for a period of 3 years.
Civil penalty—
In general— A contractor (including any subcontractor thereof) that violates this Act, shall be subject to a civil penalty in the amount of $100,000 for each day a notification required by this Act remains unmade.
No waiver— The Secretary may not waive, reduce, or reimburse a contractor for any penalty under this paragraph.
Family Notification Fund— There is established in the general fund of the Treasury an account to be known as the “Family Notification Fund”. Amounts collected as fines under this paragraph shall be deposited into the fund and shall remain available until expended to pay awards of damages under section 6 that are imposed against the United States. Such amounts may not be retained or used by the Department of Homeland Security.
Sec. 4 Reporting and review
Congressional notification— Not later than 24 hours after a covered death, the Secretary of Homeland Security shall notify the appropriate committees of Congress of the death.
Public notification— Not later than 2 business days after a covered death, the Secretary shall publish on a publicly available website of the Department of Homeland Security a release identifying the facility involved and the known circumstances of the death.
Death report— Not later than 90 days after a covered death, the Secretary shall complete and publish a report on the death, including a description of the medical care provided, a timeline of the events preceding the death, and the results of any review conducted under subsection (d).
Review— The Secretary shall ensure that each covered death is reviewed by the Office of Professional Responsibility of U.S. Immigration and Customs Enforcement or an equivalent office, with the results provided to the Office for Civil Rights and Civil Liberties and the Inspector General of the Department of Homeland Security.
Semiannual report— Not later than 1 year after the date of the enactment of this Act, and semiannually thereafter, the Secretary shall submit to the appropriate committees of Congress a report identifying, for the preceding 180-day period—
each covered death, and the time elapsed between the death and the completed notification of the emergency contact;
each notification required under section 2 that was not completed within the applicable period, with an explanation, and each delay invoked under section 2(e);
each release from custody granted, by field office, while an individual was hospitalized, being transported for emergency medical care, or experiencing a medical emergency, and whether the individual is known to have died following release; and
the number of complaints received under section 5(b) and corrective actions taken.
Records— Records created under this Act shall be retained for not less than 10 years and may not be destroyed while any litigation, investigation, or congressional inquiry concerning the death or event is pending.
Sec. 5 Oversight
Inspector general— Not later than 1 year after the date of the enactment of this Act, and biennially thereafter, the Inspector General of the Department of Homeland Security shall audit compliance with this Act and publish the results and any recommendations for corrective action.
Complaints— The Officer for Civil Rights and Civil Liberties of the Department of Homeland Security shall establish a mechanism by which a family member, emergency contact, or representative of an individual in custody may submit a complaint concerning compliance with this Act, and shall report annually to the appropriate committees of Congress on complaints received and their resolution.
Sec. 6 Civil action
In general— Any individual in custody aggrieved by a violation of this Act, or the emergency contact, next-of-kin, or personal representative of the estate of such an individual, may bring a civil action for any violation of this Act in an appropriate district court of the United States against the United States, any contractor, subcontractor, or operator of a covered facility, or any officer or employee thereof acting in an official capacity.
Relief— In an action under this section, the court shall award to a prevailing plaintiff—
actual damages or statutory damages of not less than $100,000 for each violation, whichever is greater;
in the case of a willful violation, punitive damages against any defendant other than the United States;
declaratory and injunctive relief, as appropriate; and
reasonable attorney’s fees and litigation costs.
Separate violations— For purposes of this section and section 3(b), each day a notification required by this Act remains unmade constitutes a separate violation.
Waiver of sovereign immunity— The United States shall not be immune from suit under this section, and sovereign immunity shall not be a defense to any action brought under this section.
Relationship to other remedies— The remedies under this section are in addition to, and not in lieu of, the civil penalty under section 3(b) and any other remedy available under Federal or State law, and may not be conditioned on the exhaustion of any administrative remedy. An award under this section shall not reduce, satisfy, or bar the civil penalty under section 3(b), and payment of that penalty shall not bar an action under this section.
Sec. 7 Rules of construction; severability
Rules of construction— Nothing in this Act may be construed—
to create any legal or financial obligation on the part of any person designated as a next-of-kin or other emergency contact;
to confer any immigration status, benefit, or relief on any person;
to discourage, limit, or condition the release of any individual from custody, including release for medical or humanitarian reasons;
to alter existing medical privacy protections under Federal law, or to limit any rights otherwise available to individuals in custody under any other provision of law;
to displace any requirement of the Death in Custody Reporting Act of 2013 (34 U.S.C. 60105); or
to authorize the detention of any individual.
No additional funds— No additional funds are authorized to be appropriated to carry out this Act. This Act shall be carried out using amounts otherwise made available to the Department of Homeland Security.
Severability— If any provision of this Act or its application is held invalid, the remainder of this Act and its application to other persons and circumstances shall not be affected.
Sec. 8 Definitions
In this Act:
Appropriate committees of congress— The term appropriate committees of Congress means the Committee on the Judiciary and the Committee on Homeland Security of the House of Representatives and the Committee on the Judiciary and the Committee on Homeland Security and Governmental Affairs of the Senate.
Covered death— The term covered death means the death of any individual that occurs—
while the individual is in custody of U.S. Immigration and Customs Enforcement; or
within 30 days after the individual’s release from the custody of U.S. Immigration and Customs Enforcement, when U.S. Immigration and Customs Enforcement knows or reasonably should know of the death.
Covered facility— The term covered facility means any facility at which individuals are detained by or on behalf of U.S. Immigration and Customs Enforcement, including a Service Processing Center, a contract detention facility, a facility operated pursuant to an intergovernmental service agreement, a Federal facility, and any other facility operated by or under contract or agreement with the Department of Homeland Security for the detention of individuals in the custody of U.S. Immigration and Customs Enforcement.
Custodial record— The term custodial record means the central file of an individual in custody, including the individual’s detention file.
In custody— The term in custody means, with respect to an individual, that the individual is—
detained at a covered facility;
being transported by or on behalf of U.S. Immigration and Customs Enforcement; or
receiving medical treatment at a hospital or other medical facility to which the individual was transported from a covered facility or from the custody of U.S. Immigration and Customs Enforcement, through the conclusion of the episode of treatment, notwithstanding any release from custody effected during such treatment.
Serious illness or serious injury— The term serious illness or serious injury means a medical event, episode, condition, or injury with respect to which, at minimum—
without immediate treatment, death is imminent;
admission to a hospital is required;
emergency surgery is required;
admission to an intensive care unit occurs;
the individual suffers cardiac arrest, stroke, respiratory failure, or serious trauma;
the individual is unconscious or incapacitated such that the individual is incapable of providing consent for medical treatment or of communicating;
the individual has been diagnosed with a terminal illness; or
a licensed physician determines the condition presents a substantial risk of death or permanent impairment.
Taking custody— The term taking custody means the point at which U.S. Immigration and Customs Enforcement takes custody or control of an individual, including during or prior to booking or intake screening, in transfer from another institution or agency, or as a holdover.