Human Rights Watch respectfully submits this testimony to the House Judiciary Committee Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law as it examines the issue of medical care for immigration detainees.

In December 2007 Human Rights Watch released “Chronic Indifference: HIV/AIDS Services for Immigrants Detained by the United States,” a report documenting the substandard medical care and services for immigration detainees with HIV/AIDS.3 Key findings of “Chronic Indifference” are summarized below.

The US Provides Substandard Care and Services to Detainees with HIV/AIDS

There are more than 30,000 individuals in immigration detention in the United States, held in hundreds of prisons, jails, and immigration centers throughout the United States. The US Department of Homeland Security (DHS), which is responsible for ensuring that these individuals receive necessary medical care, does not know how many of these individuals have HIV or AIDS, how many need treatment, or how many are receiving the care they need. DHS policies fail to meet national or international standards for appropriate HIV/AIDS care and treatment, and the agency fails to enforce its own minimal standards. As a result, HIV-positive immigrants in detention risk serious illness, needless suffering, and premature death.

In 2007, Human Rights Watch conducted interviews with current and former detainees, attorneys and advocates working on immigration detention, DHS officials, and wardens at local detention centers. An HIV clinician also conducted an independent medical review of treatment provided to specific detainees. Our research revealed a failure by DHS to ensure basic standards of care to HIV-positive immigrants in its custody.

Antiretroviral medications are not delivered consistently

Antiretroviral medications are critical to sustaining the lives and health of people living with HIV/AIDS. But for antiretroviral therapy to be effective, it is critical that patients adhere fully to the medication regimen. Human Rights Watch found that detention facilities frequently delivered partial and incomplete antiretroviral medications to HIV-positive detainees and that delivery of these life-saving medications was often delayed and interrupted. Such inconsistent treatment creates a serious health risk for individual detainees as well as for the larger community. It endangers an HIV-positive detainee’s health by creating a risk of drug resistance by reducing the number of medications that can be used to treat his or her disease. Inconsistent treatment also leads to the development of drug resistant strains of the virus which can then be transmitted to others, creating a public health impact in the community.

Peter R., a 43-year-old man from Jamaica was detained at Hampton Roads Regional Jail in Portsmouth, Virginia. “There seemed to be no system for giving us the AIDS drugs,” said Peter. Peter kept a diary in July 2007 to record his medication delivery. This diary shows an erratic delivery of HIV/AIDS medication in which he received a correct dosage (3 pills in the morning, 3 pills in the evening) only 65 percent of the time.

Inconsistent HIV care can be devastating to a detainee’s health. Charles B. was held in detention for four years and eight months, during which time medical staff provided incomplete prescriptions and antiretroviral drugs to which he had demonstrated resistance. As a result, Charles B. developed resistance to thirteen primary HIV/AIDS medications, severely restricting doctors’ ability to treat his condition, even in the United States, and now suffers from disabling neurological problems.

Fundamental clinical monitoring and testing is not conducted

Tests that are fundamental to effective treatment of HIV/AIDS, including tests for CD4+ T cells, viral load and resistance, were conducted sporadically or not at all.

“I have no idea what my T cells are or how I am doing with this virus,” said Diane P., a 41-year-old woman from Trinidad detained at Monmouth County Correctional Center in New Jersey. Independent medical review of Diane’s medical records showed that four months after her arrival at the jail she had not received complete lab work necessary to effectively treat her condition. Test results indicated that her viral load was not as suppressed as it should have been after months on antiretroviral therapy. Her medication regimen should therefore have been reevaluated and resistance testing conducted, but this was not done.

Life-threatening infections are not prevented or treated

HIV attacks the body’s immune system, leaving patients vulnerable to serious infections such as meningitis or pneumocystis pneumonia (often called “opportunistic infections”). Independent medical review showed that James L., a 44- year-old musician and drum instructor from Haiti, and Anna F., a 51- year-old detainee born in Germany, had CD4 counts so low as to require prophylactic medication to prevent opportunistic infections, yet none was prescribed.

Opportunistic infections can be fatal. Victoria Arellano, a 23-year-old transgendered detainee, vomited blood and became too weak to sit up in her bunk as her condition became critical. According to witnesses, detention center authorities – including medical staff – ignored her symptoms and suffering, and Ms. Arellano died of meningitis after 8 weeks in immigration detention.

Continuity of care and necessary specialty care is not ensured

National correctional standards for HIV care require emphasize the importance of continuity of care and access to specialty medical care for this complex disease. DHS frequently transfers detainees within the immigration detention system without ensuring continuity of care for HIV-positive immigrants.

In a letter to Human Rights Watch, Samuel L. described his inability to keep an appointment with an HIV specialist:

“I have been here for six months now and I haven’t seen a specialist on chronic disease. When I was in Arizona, the health care provider scheduled me to see a specialist…But I wasn’t able to go because I was transferred back to California.”

Jean P., 35, who suffers from high blood pressure as well as HIV and is blind in one eye from CMV retinitis (an opportunistic infection found in advanced AIDS patients) was transferred four times during a six-month period in 2007. According to his attorney, whose representation of Jean was repeatedly interrupted, the government failed to provide any explanation for these transfers. Independent medical review of Jean’s chart showed no eye exam during two years in detention and other examples of his disrupted care.

Confidentiality of medical care is not ensured, exposing detainees to discrimination and harassment

Detainees described crowded, hectic pill distribution systems and staff insensitivity that failed to protect the confidentiality of prisoners with HIV/AIDS. US law and international standards require that information about HIV status be protected against unauthorized disclosure. The failure to ensure confidentiality about HIV-related care threatens these important protections as well as other fundamental rights. Still stigmatized, HIV-positive, gay and transgender detainees face abuse and harassment from staff and other prisoners. In the absence of any ICE policies designed to prevent or punish discrimination, they have neither protection nor recourse from such treatment.

Antonio O., 33, is a gay man living with HIV who was detained at the San Pedro Service Processing Center in San Pedro, California, Antonio told Human Rights Watch, “The guards yell at me, make fun of me, they look at me with disgust.”

“Are you the one that’s HIV positive?” – question asked by ICE officer to Anna F. in front of other detainees at the Varick Street detention facility in New York City.

Policies and Procedures for Detainees with HIV/ AIDS are Inadequate

Immigration detainees receive sub-standard HIV care and services because DHS policies and procedures fail to ensure that adequate care is provided.

DHS fails to collect basic information about detainees with HIV/ AIDS

DHS fails to collect basic information concerning HIV/AIDS cases in the hundreds of detention facilities contracting with Immigration and Customs Enforcement (ICE) to incarcerate immigrants. Human Rights Watch requested, through the Freedom of Information Act, data as fundamental as the number of immigration detainees with HIV/AIDS—only to discover that this information is “not tracked.” Failure to collect this vital information, as well as information about the treatment and services provided to detainees with HIV/AIDS, prevents DHS from improving its programs to meet the needs of this vulnerable population.

DHS guidance fails to meet national or international standards for HIV care

The DHS policies and procedures for HIV/AIDS should describe appropriate treatment protocols for people living with HIV/AIDS to be followed in its own facilities as well as those it utilizes to provide care. DHS policies and procedures, however, are conflicting, confusing and incomplete, and fail to conform to national and international guidelines for HIV/AIDS care in correctional settings. Further, DHS has failed to adopt their internal detention standards as formal administrative regulations, making the standards largely unenforceable. Although ICE “outsources” much of its immigration detention to local jails and facilities across the United States, its responsibility for adequate standards of care may not be delegated or evaded by contracting with third parties.

DHS fails to adequately monitor the quality of health care provided to detainees with HIV/ AIDS

The inspection system for most facilities contracting with ICE fails to provide the oversight necessary to identify and resolve the deficiencies in medical care – a problem that the Government Accountability Office (GAO) has documented. A 2007 GAO report found serious flaws in the quality of ICE’s inspections and in its mechanisms for ensuring that detainee complaints, including those pertaining to medical care, are properly monitored and resolved.4

DHS Documents Confirm Substandard Care for Detainees

Documents recently obtained by the Washington Post support Human Rights Watch’s findings of substandard care for HIV-positive detainees.5 An internal ICE review of the death of Victoria Arellano, the 23-year-old transgendered detainee with AIDS who died in federal custody states in “off the record observations and recommendations” that:

The clinical staff at all level fails to recognize early signs and symptoms of meningitis. In an advanced AIDS patient with CD4 counts of less than 100 and without proper prophylaxic treatment a severe headache associated with nausea and vomiting must raise the suspicion of a CNS toxoplasmosis or a Cryptococcal meningoencephalitis. Pt. was evaluated multiple times and an effort to rule out those infections was not even mentioned.6
The ICE review also calls into question the policy of denying lab work to all detainees until they had been held for more than 30 days. As the reviewer acknowledges, such a policy violates medical protocol and endangers the lives of patients with HIV/AIDS, noting specifically:

…that practice is particularly dangerous with many chronic care cases and specially HIV/AIDS patients. Labs for AIDS patients (CD4 count and HIV RNA by PCR) must be performed ASAP to know their immune status and were you are standing in reference to disease control and meds. In this particular case it took them 22 days to perform the lab work.7

Another document obtained by the Washington Post demonstrates that ICE headquarters repeatedly denied life-saving medications to detainees with HIV/AIDS. An accounting record entitled “TAR Cost Savings Based on Denials” shows that during the period October 2005-September 2006, 17 requests from medical staff at detention facilities for HIV/AIDS medications were denied. Denial of these TARs (Treatment Authorization Requests) from medical staff saved ICE a total of $129,713.62.8

For copies of these documents, please see Appendices A and B.

Conclusion

HIV-positive detainees are truly an at-risk population dispersed throughout the hundreds of detention centers, private prisons and local jails used by the Department of Homeland Security to hold immigrants. Vulnerable to discrimination and harassment and often denied fundamental treatment and services, immigrant detainees with HIV/AIDS continue to suffer, and in some cases, die, in detention. DHS must act now to bring its procedures and policies into conformity with national and international standards. Specifically, Human Rights Watch strongly supports HB 5950, the Detainee Basic Medical Care Act of 2008 that establishes a threshold for adequate medical care for immigration detainees. HRW further urges the following recommendations to be implemented without delay:

Recommendations

To the US Department of Homeland Security

  • Increase the number and quality of inspections of all facilities contracting with DHS to detain immigrants
  • Revise and upgrade the medical care detention standard to conform to national and international standards for HIV care
  • Convert the DHS internal detention standards to enforceable administrative regulations
  • Adopt a non-discrimination policy to prevent and punish abuse or harassment of HIV-positive, gay and transgender detainees
  • Promote alternatives to detention for detainees with serious chronic medical conditions

To the Division of Immigration Health Services

  • Collect vital information about the number of detainees with HIV/ AIDS, the care provided to them and the services available. Use this information to develop programs and policies to address the needs of this population
  • Develop a program for voluntary testing, counseling and education for HIV

To Immigration and Customs Enforcement

  • Require compliance with the Medical Care Detention standards (as revised above) as an express condition of all contracts with private, county or local facilities
  • Improve the current system for tracking complaints from detainees relating to inadequate medical care
  • Ensure that all detainees receive medical care free of charge

To the US Congress

  • Ensure that all immigration detainees in federal custody are subject to standards for medical care that comply with national and international standards
  • Establish a monitoring body independent of the Department of Homeland Security with the responsibility and expertise to ensure that all facilities housing immigration detainees comply with national and international health care standards


[1].See, e.g. Human Rights Watch and ACLU,, Custody and Control: Conditions of Confinement in New York’s Juvenile Prisons for Girls (New York: September 2006); Human Rights Watch, So Long As They Die: Lethal Injections in the United States (New York: April 2006); Human Rights Watch, Locked Away: Immigration Detainees in Jails in the United States (New York: September 1998).

[2].See, e.g., Human Rights Watch, Life Doesn’t Wait: Romania’s Failure to Protect and Support Children and Youth Living with HIV (New York: August 2006); Human Rights Watch, Injecting Reason: Human Rights and HIV Prevention for Injection Drug Users (New York: September 2003).

[3].Human Rights Watch, Chronic Indifference: HIV/AIDS Services for Immigrants Detained by the United States (New York December 2007.)

[4].Government Accountability Office Report GAO-07-875 (GAO Report): Alien Detention Standards, July 2007.

[5].See Dana Priest and Amy Goldstein, “System of Neglect,” The Washington Post, May 11, 2008.

[6].
Division of Immigration Health Services Case Summary of the death of V. Arellano, undated, para. 1, cited and included in online materials for “System of Neglect,” supra, at http://media.washingtonpost.com/wp-srv/nation/specials/immigration/docum..., accessed May 27, 2008.

[7].Ibid.

[8].“TAR Cost Savings Based on Denials 10/1/2005-9/30/2006,” undated, cited and included in online materials for “System of Neglect,” supra, at HTUhttp://media.washingtonpost.com/wp-srv/nation/specials/immigration/docum..., accessed May 27, 2008.