§ 34.2 Definitions. As used in this part, terms shall have the following meanings: (a) CDC. Centers for Disease Control, Public Health Service, U.S. Department of Health and Human Services. (b) Communicable disease of public health significance. Any of the following diseases: (1) Chancroid. (2) Gonorrhea. (3) Granuloma inguinale. (4) Human immunodeficiency virus (HIV) infection. (5) Leprosy, infectious. (6) Lymphogranuloma venereum. (c) Civil surgeon. A physician, with not less than 4 years' professional experience, selected by the District Director of INS to conduct medical examinations of aliens in the United States who are applying for adjustment of status to permanent residence or who are required by the INS to have a medical examination. (d) Class A medical notification. Medical notification of: (1) A communicable disease of public health significance; (2)(i) A physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others; (ii) A history of a physical or mental disorder and behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or lead to other harmful behavior; or (3) Drug abuse or addiction. (e) Class B medical notification. Medical notification of a physical or mental abnormality, disease, or disability serious in degree or permanent in nature amounting to a substantial departure from normal well-being. (f) Director. The Director of the Centers for Disease Control. (g) Drug abuse. The non-medical use of a substance listed in section 202 of the Controlled Substances Act, as amended (21 U.S.C. 802) which has not necessarily resulted in physical or psychological dependence. (h) Drug addiction. The non-medical use of a substance listed in section 202 of the Controlled Substances Act, as amended (21 U.S.C. 802) which has resulted in physical or psychological dependence. (i) INS. Immigration and Naturalization Service, U.S. Department of Justice. (j) Medical examiner. A panel physician, civil surgeon, or other physician designated by the Director to perform medical examinations of aliens. (k) Medical hold document. A document issued to the INS by a quarantine inspector of the Public Health Service at a port of entry which defers the inspection for admission until the cause of the medical hold is resolved. (1) Medical notification. A document issued to a consular authority or the INS by a medical examiner, certifying the presence or absence of: (1) A communicable disease of public health significance; (2)(i) A physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others; (ii) A history of a physical or mental disorder and behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or lead to other harmful behavior; (3) Drug abuse or addiction; or (4) Any other physical abnormality, disease, or disability serious in degree or permanent in nature amounting to a substantial departure from normal well-being. (m) Medical officer. A physician of the Public Health Service Commissioned Corps assigned by the Director to conduct physical and mental examinations of aliens. (n) Mental disorder. A currently accepted psychiatric diagnosis, as defined by the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association, or by other authoritative sources. (0) Panel physician. A physician selected by a United States embassy or consulate to conduct medical examinations of aliens applying for visas. (p) Physical disorder. A currently accepted medical diagnosis, as defined by the Manual of the International Classification of Diseases, Injuries, and Causes of Death published by the World Health Organization, or by other authoritative sources. [21 FR 9829, Dec. 12, 1956, as amended at 52 FR 32543, Aug. 28, 1987; 56 FR 25001, May 31, 1991] $34.3 Scope of examinations. (a) General. In performing examinations, medical examiners shall consider those matters that relate to: (1) A communicable disease of public health significance; (2)(i) A physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others; (ii) A history of a physical or mental disorder and behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or lead to other harmful behavior; (3) Drug abuse or addiction; and (4) Any other physical abnormality, disease, or disability serious in degree or permanent in nature amounting to a substantial departure from normal well-being. The scope of the examination shall include any laboratory or additional studies that are deemed necessary, either as a result of the physical examination or pertinent information elicited from the alien's medical history, for the examining physician to reach a conclusion about the presence or absence of a physical or mental abnormality, disease, or disability. (b) Persons subject to requirement for chest X-ray examination and serologic testing. (1) Except as provided in paragraph (b)(1)(v) of this section, a chest X-ray examination, serologic testing for syphilis and serologic testing for HIV of persons 15 years of age and older shall be required as part of the examination of: (i) Applicants for immigrant visas; (ii) Students, exchange visitors, and other applicants for a nonimmigrant visa who are required by a consular authority to have a medical examination; (iii) Aliens outside the United States who apply for refugee status; (iv) Applicants in the United States who apply for adjustment of status under the immigration statute and regulations; (v) Exceptions. Neither a chest X-ray examination nor serologic testing for syphilis and HIV shall be required if the alien is under the age of 15. Provided, a tuberculin skin test shall be required if there is evidence of contact with a person known to have tuberculosis or other reason to suspect tuberculosis, and a chest X-ray examination shall be required in the event of a positive tuberculin reaction, and serologic testing where there is reason to suspect infection with syphilis or HIV. Additional exceptions to the requirement for a chest X-ray examination may be authorized for good cause upon application approved by the Director. (2) Tuberculin skin test examination. (i) All aliens 2 years of age or older in the United States who apply for adjustment of status to permanent residents, under the immigration laws and regulations, or other aliens in the United States who are required by the INS to have a medical examination in connection with a determination of their admissibility, shall be required to have a tuberculin skin test. Exceptions to this requirement may be authorized for good cause upon application approved by the Director. In the event of a positive tuberculin reaction, a chest X-ray examination shall be required. If the chest radiograph is consistent with tuberculosis, the alien shall be referred to the local health authority for evaluation. Evidence of this evaluation shall be provided to the civil surgeon before a medical notification may be issued. (ii) Aliens less than 2 years old shall be required to have a tuberculin skin test if there is evidence of contact with a person known to have tuberculosis or other reason to suspect tuberculosis. In the event of a positive tuberculin reaction, a chest X-ray examination shall be required. If the chest radiograph is consistent with tuberculosis, the alien shall be referred to the local health authority for evaluation. Evidence of this evaluation shall be provided to the 190-164 D-00--4 civil surgeon before a medical notification may be issued. (3) Sputum smear examination. All aliens subject to the chest X-ray examination requirement and for whom the radiograph shows an abnormality consistent with pulmonary tuberculosis shall be required to have a sputum smear examination for acid-fast bacilli. (4) How and where performed. All chest X-ray films used in medical examinations performed under the regulations in this part shall be large enough to encompass the entire chest (approximately 14 by 17 inches; 35.6×43.2 cm.). Serologic testing for HIV shall be a sensitive and specific test, confirmed when positive by a test such as the Western blot test or an equally reliable test. For aliens examined abroad, the serologic testing for HIV must be completed abroad, except that the Attorney General after consultation with the Secretary of State and the Secretary of Health and Human Services may in emergency circumstances permit serologic testing of refugees for HIV to be completed in the United States. (5) Chest X-ray, laboratory, and treatment reports. The chest X-ray reading and serologic test results for syphilis and HIV shall be included in the medical notification. When the medical examiner's conclusions are based on a study of more than one chest X-ray film, the medical notification shall include at least a summary statement of findings of the earlier films, followed by a complete reading of the last film, and dates and details of any laboratory tests and treatment for tuberculosis. (c) Procedure for transmitting records. For aliens issued immigrant visas, the medical notification and chest X-ray film, if any, shall be placed in a separate envelope which shall be sealed and attached to the alien's visa in such a manner as to be readily detached at the U.S. port of entry. When more than one chest X-ray film is used as a basis for the examiner's conclusions, all films shall be included. (d) Failure to present records. When a determination of admissibility is to be made at the U.S. port of entry, a medical hold document shall be issued pending completion of any necessary examination procedures. A medical hold document may be issued for aliens who: (1) Are not in possession of a valid medical notification, if required; (2) Have a medical notification which is incomplete; (3) Have a medical notification which is not written in English; (4) Are suspected to have an excludable medical condition. (e) The Attorney General, after consultation with the Secretary of State and the Secretary of Health and Human Services, may in emergency circumstances permit the medical examination of refugees to be completed in the United States. (f) All medical examinations shall be carried out in accordance with such technical instructions for physicians conducting the medical examination of aliens as may be issued by the Director. Copies of such technical instructions are available upon request to the Director, Division of Quarantine. Mailstop E03, CDC, Atlanta GA 30333. [56 FR 25002, May 31, 1991] $34.4 Medical notifications. (a) Medical examiners shall issue medical notifications of their findings of the presence or absence of Class A or Class B medical conditions. The presence of such condition must have been clearly established. (b) Class A medical notifications. (1) The medical examiner shall report his/ her findings to the consular officer or the INS by Class A medical notification which lists the specific condition for which the alien may be excluded, if an alien is found to have: (i) A communicable disease of public health significance; (ii)(A) A physical or mental disorder, and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others; or (B) A history of a physical or mental disorder and behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or lead to other harmful behavior; (iii) Drug abuse or addition. Provided, however, That a Class A medical notification of a physical or mental disorder, and behavior associated with that disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, shall in no case be issued with respect to an alien having only mental shortcomings due to ignorance, or suffering only from a condition attributable to remediable physical causes or of a temporary nature, caused by a toxin, medically prescribed drug, or disease. E (2) The medical notification shall state the nature and extent of the ab= normality; the degree to which the alien is incapable of normal physical activity; and the extent to which the condition is remediable. The medical examiner shall indicate the likelihood, that because of the condition, the applicant will require extensive medical care or institutionalization. (c) Class B medical notifications. (1) If an alien is found to have a physical or mental abnormality, disease, or disability serious in degree or permanent in nature amounting to a substantial departure from normal well-being, the medical examiner shall report his/her findings to the consular or INS officer by Class B medical notification which lists the specific conditions found by the medical examiner. Provided, however, that a Class B medical notification shall in no case be issued with respect to an alien having only mental shortcomings due to ignorance, or suffering only from a condition attributable to remediable physical causes or of a temporary nature, caused by a toxin, medically prescribed drug, or disease. (2) The medical notification shall state the nature and extent of the abnormality, the degree to which the alien is incapable of normal physical activity, and the extent to which the condition is remediable. The medical examiner shall indicate the likelihood, that because of the condition, the applicant will require extensive medical care or institutionalization. (d) Other medical notifications. If as a result of the medical examination, the medical examiner does not find a Class A or Class B condition in an alien, the medical examiner shall so indicate on § 34.7 Medical and other care; death. (a) An alien detained by or in the custody of the INS may be provided medical, surgical, psychiatric, or dental care by the Public Health Service through interagency agreements under which the INS shall reimburse the Public Health Service. Aliens found to be in need of emergency care in the course of medical examination shall be treated to the extent deemed practical by the attending physician and if considered to be in need of further care, may be referred to the INS along with the physician's recommendations cerning such further care. con (b) In case of the death of an alien, the body shall be delivered to the consular or immigration authority concerned. If such death occurs in the United States, or in a territory or possession thereof, public burial shall be provided upon request of the INS and subject to its agreement to pay the burial expenses. Autopsies shall not be performed unless approved by the INS. [56 FR 25003, May 31, 1991] $34.8 Reexamination; convening of review boards; expert witnesses; reports. (a) The Director shall convene a board of medical officers to reexamine an alien: (1) Upon the request of the INS for a reexamination by such a board; or (2) Upon an appeal to the INS by an alien who, having received a medical examination in connection with the determination of admissiblity to the United States (including examination on arrival and adjustment of status as provided in the immigration laws and regulations) has been certified for a Class A condition. (b) For boards convened to reexamine aliens certified as: (1) Having a communicable disease of public health significance, the board shall consist of three medical officers, at least one of whom is experienced in the diagnosis and treatment of the communicable disease for which medical notification has been made, and the decision of the majority of the board shall prevail; (2)(i) Having a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others; or (ii) Having a history of a physical or mental disorder and behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or lead to other harmful behavior; or (iii) Being a drug abuser or addict; (3) In circumstances covered by paragraph (b)(2) of this section, the board shall consist of three medical officers, at least one of whom shall be a board certified psychiatrist, and the decision of the majority of the board shall prevail. (c) Reexamination shall include: (1) Review of all records submitted by the alien, other witnesses, or the board; (2) Use of any laboratory or additional studies which are deemed clinically necessary as a result of the phys ical examination or pertinent information elicited from the alien's medical history; (3) Consideration of statements regarding the alien's physical or mental condition made by a physician after his/her examination of the alien; and (4) An independent physical or psychiatric examination of the alien performed by the board, at the board's option. (d) An alien who is to be reexamined shall be notified of the time and place of his/her reexamination not less than 5 days prior thereto. (e) The alien, at his/her own cost and expense, may introduce as witnesses before the board such physicians or medical experts as the board may in its discretion permit; provided that the alien shall be permitted to introduce at least one expert medical witness. If any witnesses offered are not permitted by the board to testify, the record of the proceedings shall show the reason for the denial of permission. (f) Witnesses before the board shall be given a reasonable opportunity to examine the medical notification and other records involved in the reexamination and to present all relevant and material evidence orally or in writing until such time as the proceedings are declared by the board to be closed. During the course of the hearing the alien's attorney or representative shall be permitted to examine the alien and he/she, or the alien, shall be permitted to examine any witnesses offered in the alien's behalf and to cross-examine any witnesses called by the board. If the alien does not have an attorney or representative, the board shall assist the alien in the presentation of his/her case to the end that all of the material and relevant facts may be considered. (g) The findings and conclusions of the board shall be based on its medical examination of the alien, if any, and on the evidence presented and made a part of the record of its proceedings. (h) The board shall report its findings and conclusions to the INS, and shall also give prompt notice thereof to the alien if his/her reexamination has been based on his/her appeal. The board's report to the INS shall specifically affirm, modify, or reject the findings and |