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Texas Register Preamble


RESPONSE: Staff research has been inconclusive as to the impact and cost of accreditation for forensic pathology to local communities. Comments by the affected communities have been conflicting and staff has found that the true fiscal impact of mandating accreditation of forensic pathology is unclear. Staff therefore revised the rule as finally adopted to delete forensic pathology from an accredited discipline and exempt it from accreditation at this time. Further evaluation of this comment is moot.

COMMENT: Some comments assert that the forensic pathology discipline should be placed in a scientifically neutral corner, such as the Texas Department of Health or Texas State Board of Medical Examiners.

RESPONSE: Staff believes that these comments are beyond the scope of DPS rulemaking activity under HB 2703.

COMMENT: Some comments assert that many small counties routinely have autopsies performed in hospitals and funeral homes and that, if NAME accreditation is required, counties would have to discontinue this practice and incur enormous expense.

RESPONSE: Staff research has been inconclusive as to the impact and cost of accreditation for forensic pathology to local communities. Comments by the affected communities have been conflicting and staff has found that the true fiscal impact of mandating accreditation of forensic pathology is unclear. Staff therefore has decided to revise the proposed rule to delete forensic pathology from an accredited discipline and exempt it from accreditation at this time. Further evaluation of this comment is moot.

COMMENT: Some comments in favor of adoption of forensic pathology accreditation assert that every medical organization except medical examiners has accreditation and that accreditation is therefore appropriate.

RESPONSE: Staff research has been inconclusive as to the impact and cost of accreditation for forensic pathology to local communities. Comments by the affected communities have been conflicting and staff has found that the true fiscal impact of mandating accreditation of forensic pathology is unclear. Staff therefore has decided to revise the proposed rule to delete forensic pathology from an accredited discipline and exempt it from accreditation at this time

COMMENT: Some comments in favor of adoption of forensic pathology accreditation assert that NAME standards are consistent with other accreditation bodies. These comments assert that NAME standards are misunderstood--there is flexibility in the checklists that can accommodate local counties progress within the accreditation process. Also asserted was that the true NAME standard for annual autopsies are 350 per medical examiner per year rather than 250 per year as suggested by some comments. The favorable comments assert that the standard of 350 was carefully developed by NAME and is appropriate and supported by statistical research. Also asserted is that NAME will provide provisional accreditation to accommodate counties that are unable to meet the standards.

RESPONSE: Staff contacted NAME and confirmed that the standard of 350 autopsies per medical examiner per year is correct--350 is the maximum limit and 250 is a desirable target under NAME standards. Also, NAME reports that, if a medical examiner's office is in the active process of recruiting pathologists so as to reduce the autopsy caseload below the 350 limit, and the office is making a good faith effort to fill the positions by offering competitive compensation and fringe benefits, NAME would accept such actions as satisfactory progress.

However, although staff agrees with the favorable comments, staff research has been inconclusive as to the impact and cost of accreditation for forensic pathology to local communities. Comments by the affected communities have been conflicting and staff has found that the true fiscal impact of mandating accreditation of forensic pathology is unclear. Staff therefore has decided to revise the proposed rule to delete forensic pathology from an accredited discipline and exempt it from accreditation at this time. Further evaluation of this comment is moot.

COMMENT: One commenter, a medical examiner in favor of adoption of forensic pathology accreditation, asserts that he served as a NAME inspector and the standards are easily obtainable. The commenter asserts that the costs of NAME compliance for the county served would be acceptable.

RESPONSE: Staff research has been inconclusive as to the impact and cost of accreditation for forensic pathology to local communities. Comments by the affected communities have been conflicting and staff has found that the true fiscal impact of mandating accreditation of forensic pathology is unclear. Staff therefore has decided to revise the proposed rule to delete forensic pathology from an accredited discipline and exempt it from accreditation at this time. Further evaluation of this comment is moot.

COMMENT: Some comments against adoption of forensic pathology accreditation assert that many medical examiner offices will be unable to obtain accreditation and will be forced to either retain crime victim bodies until the conclusion of the criminal case or send bodies to one of the three accredited facilities in Texas and that neither of these options are acceptable. Some comments against adoption of forensic pathology accreditation assert that many medical examiner offices will be unable to meet NAME standards within the 2-year grace period of HB 2703.

RESPONSE: Staff research has been inconclusive as to the impact and cost of accreditation for forensic pathology to local communities. Comments by the affected communities have been conflicting and staff has found that the true fiscal impact of mandating accreditation of forensic pathology is unclear. Staff therefore has decided to revise the proposed rule to delete forensic pathology from an accredited discipline and exempt it from accreditation at this time. Further evaluation of this comment is moot.

COMMENT: Some comments against adoption of forensic pathology accreditation assert that exemption is appropriate based on Garcia v. State, 868 SW2d 337 (Tex. Crim. App. 1993) in which, it is asserted, the court determined that a medical examiner is not law enforcement but a disinterested third party.

RESPONSE: Staff agrees that exemption is appropriate but only for the reasons as stated in other parts of this preamble. Further evaluation is moot because staff revised the adopted sections to delete forensic pathology from the status of an accredited discipline and instead recognize the discipline as exempt from accreditation at this time.

COMMENT: One comment inquires about the possibility for pathologists in Texas to organize an accrediting body that would provide accuracy and standardization and use the NAME guidelines as a template for accreditation.

RESPONSE: Staff believes that a state accrediting body for forensic pathology could be recognized by DPS in the future if the standards identified for accreditation as described in these rules were met.

Digital Evidence

Comments were received from a number of entities regarding the applicability of DPS accreditation to digital evidence. Based on these comments and staff research, staff reached the conclusion that digital evidence should be exempt from accreditation by rule under the statutory exemption authority provided by Government Code §411.0205(c). The basis for this determination is explained in other parts of this preamble. Comments regarding digital evidence are summarized below.

COMMENT: Comments assert that digital evidence analysis is primarily a search for evidence and is not laboratory forensic analysis of physical evidence. Comments assert that digital evidence analysis is a "search" that has always been in the purview of police agencies rather than a laboratory function.

RESPONSE: Staff agrees that digital evidence collection in many cases may not be subject to the requirements of HB 2703 and these regulations. However, if a search involves analysis, manipulation, or application of analysis software leading to a conclusion, staff believes that it is forensic analysis. In cases where digital evidence analysis does constitute activity covered by HB 2703, staff has determined that exemption is appropriate as explained in other parts of this preamble at this time.

COMMENT: One comment asserts the following: DPS may not have the commitment to a digital evidence recovery program of accreditation; DPS lacks adequate expertise to pass judgment over other law enforcement agency practices regarding digital evidence; other law enforcement agencies have equipment, training and personnel that exceed DPS' current capacity.

RESPONSE: Staff believes that this comment is beyond the scope of DPS rulemaking activity under HB 2703.

COMMENT: Some comments assert that there is presently sufficient law that supports the guarantee of integrity in the processing and analysis of digital evidence. These comments assert that digital evidence should not be lumped together in the same category with physical evidence because that was not the intent of the law.

RESPONSE: Staff agrees that digital evidence is subject to sufficient laws assuring the integrity in processing and analysis of digital evidence, as is every other discipline under the Texas Rules of Evidence.

COMMENT: One comment against accreditation asserts that it is more important that examiners be certified and that there is really no need for a "lab" to process digital evidence that fulfills evidentiary rules. The comment asserts that there are few tools really needed to conduct the acquisition and analysis, and a great deal of this work is done in the field and not in a "lab" at all. The comment also asserts that as long as the chain of custody is followed and best practices used, digital evidence should be admissible and any expert testimony may be left to the voir dire process in the courts.

RESPONSE: Staff believes that additional research is necessary to properly evaluate the scope of accreditation for digital evidence. Further discussion of this is contained in other parts of this preamble.

COMMENT: A comment in favor of adoption of accreditation for digital evidence asserts that digital evidence is similar to other physical evidence. The comment asserts this evidence can be lost, contaminated, or destroyed if not handled properly. The comment asserts that short training programs are inadequate because the investigator lacks an established standard operating procedure for analysis, handling or processing evidence, does not have quality assurance procedures to provide accurate repeatable results, and lacks quality assurance practice such as inter-laboratory comparisons, proficiency testing programs, and internal quality control schemes. This comment generally asserts that any cost associated with the accreditation is necessary because it is the only way to ensure accurate forensic results.

RESPONSE: Staff agrees with this comment and believes that forensic analysis of digital evidence should be subject to accreditation at a future date. Further discussion of this matter is contained in other parts of this preamble.

COMMENT: Some comments assert that accreditation of digital evidence will cause the cost of operation of laboratory work to increase excessively. Comments assert that hardware turns over frequently and accreditation would require huge amounts of work in writing procedures for new hardware.

RESPONSE: Staff believes that additional research is necessary to properly evaluate the scope of accreditation for digital evidence. Further discussion of this is contained in other parts of this preamble.

COMMENT: Some comments assert that ASCLD/LAB requires a Bachelor of Science ("B.S.") Degree as a minimum qualification and that this would create an unnecessary hardship on the laboratories. Further, some comments assert that since current training requirements in the discipline often go beyond any four year degree program, the requirement is unnecessary.

RESPONSE: Staff research indicates that a B.S. degree is not an essential requirement for ASCLD/LAB accreditation. However, for reasons identified in other parts of this preamble, the proposed rule will be modified to exempt digital evidence from accreditation at this time, and therefore further review of this issue is moot.

COMMENT: At least one comment in favor of the accreditation of digital evidence asserts that other comments that the ASCLD/LAB requirement of a B.S. degree is incorrect and that the education level is directory in nature rather than mandatory and a laboratory would not fail accreditation if personnel lacked a B.S. degrees.

RESPONSE: Staff research indicates that a B.S. degree is not an essential requirement for ASCLD/LAB accreditation. However, for reasons identified in other parts of this preamble, the proposed rule will be modified to exempt digital evidence from accreditation at this time and therefore further review of this issue is moot.

COMMENT: Some comments assert that private laboratories will leave Texas if digital evidence is accredited because of the cost in accreditation.

RESPONSE: Staff believes that additional research is necessary to properly evaluate the scope of accreditation for digital evidence. Further discussion of this is contained in other parts of this preamble.

COMMENT: Some comments assert that digital evidence accreditation should be under the oversight of other agencies such as the Texas Commission on Law Enforcement Officer Standards and Education ("TCLEOSE").

RESPONSE: Staff believes that this comment goes beyond the DPS rulemaking scope provided under HB 2703.

COMMENT: One commenter asserts that the digital evidence products being developed for his particular district attorney office is excellent and does not necessitate accreditation. The commenter asserts that a key component in developing digital evidence is speed and the proposed requirement of accreditation will interfere with this need. More specifically, the comment asserts that accreditation will require centralization of digital evidence work and this will cause delay and decline in service levels.

RESPONSE: Staff believes that additional research is necessary to properly evaluate the scope of accreditation for digital evidence. Further discussion of this is contained in other parts of this preamble.

COMMENT: At least one comment asserts that most investigators in the digital evidence discipline are qualified professionals that are certified by entities other than accrediting bodies such as ASCLD/LAB. The commenter asserts that this certification is sufficient. Some comments add that DPS should consider multiple certification bodies for accreditation purposes.

RESPONSE: Staff believes that additional research is necessary to properly evaluate the scope of accreditation for digital evidence. Further discussion of this is contained in other parts of this preamble.

COMMENT: One comment in favor of the accreditation of digital evidence asserts that the scientific community of ASCLD/LAB voted by an 81 percent margin to require digital evidence to be a non-optional forensic discipline and that state accreditation is therefore appropriate. The comment also asserts that the discipline presently lacks appropriate standard operating procedures for analysis, and lacks peer or administrative review to ensure quality assurance without accreditation. The comment asserts that adoption of the accreditation requirement will benefit citizens.

RESPONSE: Staff agrees with this comment and believes that forensic analysis of digital evidence should be subject to accreditation at a future date.

COMMENT: At least one comment against the accreditation of digital evidence asserts that digital evidence work is different than other physical evidence in that the investigator does not create a sample--the investigator creates a complete and accurate copy. These comments assert that the discipline is not a comparison function but rather a search function.

RESPONSE: Staff agrees that digital evidence collection in many cases may not be subject to the requirements of HB 2703 and these regulations. However, if that search involves the analysis, manipulation, or application of analysis software leading to a conclusion, staff believes that it is forensic analysis. In cases where digital evidence analysis does constitute activity covered by HB 2703, staff has determined that exemption at this time is appropriate as explained in other parts of this preamble.

COMMENT: At least one comment against the accreditation of digital evidence asserts that the digital evidence community does not generally recognize ASCLD/LAB accreditation for digital evidence and therefore should be exempt. The comment also points out that there are currently no ASCLD/LAB accredited digital evidence labs in the country as of the date of the comment and that this fact supports the conclusion that the discipline should be exempt.

RESPONSE: Staff believes that additional research is necessary to properly evaluate the scope of accreditation for digital evidence. Further discussion of this is contained in other parts of this preamble.

COMMENT: At least one comment against the accreditation of digital evidence asserts that requiring accreditation will interfere with federal/state partnerships in the battle against electronic crime since federal electronic labs are not ASCLD/LAB accredited. Accreditation would eliminate the availability of many federal resources.

RESPONSE: Staff believes that additional research is necessary to properly evaluate the scope of accreditation for digital evidence. Further discussion of this is contained in other parts of this preamble.

COMMENT: At least one comment against the accreditation of digital evidence asserts that accreditation by ASCLD/LAB is new and there are other means of certification.

RESPONSE: Staff believes that additional research is necessary to properly evaluate the scope of accreditation for digital evidence. Further discussion of this is contained in other parts of this preamble.

COMMENT: At least one comment against the accreditation of digital evidence asserts that the federal court system accepts current processing standards and training used by law enforcement and most of these agencies are not accredited through ASCLD/LAB. The comment asserts that the requirement of accreditation would make Texas standards different than federal standards and that DPS should not require accreditation of the discipline because it would go against current trends.

RESPONSE: Staff believes that additional research is necessary to properly evaluate the scope of accreditation for digital evidence. Further discussion of this is contained in other parts of this preamble.

COMMENT: At least one comment against the accreditation of digital evidence asserts that federal agencies have determined that it is inappropriate to create a specifically accredited "laboratory" when better results may be obtained by training specific investigators who work exclusively in the field.

RESPONSE: Staff believes that additional research is necessary to properly evaluate the scope of accreditation for digital evidence. Further discussion of this is contained in other parts of this preamble.

Cont'd...

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