VI. Access to HIV/AIDS Treatment in Immigration DetentionICE Policy and ProceduresThe DIHS Covered Services PackageThe United States Public Health Service (USPHS) provides medical and dental services to immigration detainees pursuant to federal law. 71 This mandate is carried out by the Division of Immigration Health Services (DIHS), a component of the Health Resources and Services Administration (HRSA). DIHS operates the medical systems directly at the eight Service Processing Centers and at seven Contract Detention Facilities. DIHS policies cover the medical care provided at all facilities, including county jails, through the application of the “DIHS Medical Dental Covered Services Package.”72 Similar to the coverage brochure from an HMO or managed health care network, this document establishes guidelines for approval or denial of health care that will be reimbursed by ICE to contracting detention facilities. From the outset, the DIHS Services Package makes it clear that medical treatment shall be limited, whenever possible, to emergency care: The DIHS Detainee Covered Services Package primarily provides health care services for emergency care. Emergency care is defined as “a condition that poses an imminent threat to life, limb, hearing or sight” Accidental or traumatic injuries incurred while in the custody of ICE or BP(Bureau of Prisons) and acute illnesses will be reviewed for appropriate care.73 The Services Package states that “Elective, non-emergent care requires prior authorization…Requests for pre-existing, non-life threatening conditions will be reviewed on a case by case basis…Other medical conditions which the physician believes, if left untreated during the period of ICE/BP custody, would cause deterioration of the detainee’s health or uncontrolled suffering affecting his/her deportation status will be assessed and evaluated for care.”74 Under this provision, the treating physician must evaluate the appropriateness of care based upon an estimate of how long the detainee will be in ICE custody and/or whether the medical condition will affect the detainee’s “deportation status.”75 Regarding HIV/AIDS, the Services Package contains only one reference, under the section entitled “Other Services.” This section provides: Follow up health care services, with periodic check ups, for detainees with conditions that are considered chronic will be determined by the health care provider. These conditions may include but not be limited to:
The Services Package fails to provide coverage for HIV/AIDS testing except in very limited circumstances. The test may not be covered even when it is requested by the detainee. Rather, the Services Package provides: HIV testing will be approved if a provider determines that the HIV testing is indicated based upon clinical evaluation or if the detainee requested the test and it is deemed necessary by the medical provider (highlight in original).77 The HIV/AIDS Detention Standard As discussed above, ICE has adopted a Detention Operations Manual (DOM) that sets forth 38 standards for conditions in immigration detention. The “Medical Care” standard set forth in this Manual contains a specific section addressing the treatment of detainees with HIV/AIDS. The Medical Care standard states, however, that all of its provisions apply only to Service Processing Centers and Contract Detention Facilities; some provisions, italicized in the text, apply only as “guidelines” for local jails and other facilities contracting with ICE. Even when applied, the HIV/AIDS provisions fail to establish an acceptable standard of care. The HIV/AIDS “standard” requires medical staff merely to “promote”, rather than to provide, accurate diagnosis and medical management and then only “to the extent possible”. The standard makes no reference to current clinical guidelines, testing and counseling, confidentiality or access to specialty care, as it should according to the National Commission on Correctional Health Care, the American Public Health Association, World Health Organization, and UNAIDS guidelines.78 As a result of these omissions the HIV/AIDS provisions fail to meet community standards of care and fall below national and international recommended standards for the treatment of HIV/AIDS in correctional settings. Which Standards Apply?The conflicting array of variably applicable guidelines, standards, and policies fails to provide clear direction to the administrators of any ICE facility, whether a Service Processing Center, a Contract Detention Facility, or the hundreds of local jails contracting with ICE. Wardens and correctional staff interviewed by Human Rights Watch, while defending the quality of medical care in their facility, each gave different descriptions of the standards they considered applicable to the immigration detainees.79 The ACLU of New Jersey reviewed the contracts between ICE and each of the five New Jersey facilities holding immigration detainees. Each contract contains different descriptions of the standards applicable to immigration detainees, and none of them specify, or incorporate by reference, the ICE detention standards.80 As one county jail warden told Human Rights Watch, “I don’t know what standards apply. It’s hard to keep it all straight.”81 In addition to the DOM provisions relating to the treatment of HIV/AIDS, ICE cites additional standards as applicable to detainee medical care. For example, the DOM “Medical Care” standard cites the American Correctional Association (ACA) Standards for Adult Detention Facilities and the National Commission on Correctional Health Care (NCCHC) Standards for Health Services in Jails (1996). According to the U.S. Government Accountability Office Audit, the ICE Detention Standards were “derived” from the American Correctional Association standards.82 Neither the ACA nor the NCCHC standards, however, bear any resemblance to the HIV/AIDS “standard” set forth in the DOM. The ACA Health Care Standard since 1999 has been a performance-based standard that requires written treatment plans for individuals with HIV/AIDS that provide for testing, education, treatment guidelines, follow up lab work, and continuity of care.83 The NCCHC Standards greatly exceed the limited provisions found in the DOM. In its position paper entitled “Administrative Management of HIV in Corrections” the NCCHC endorses what is known as the “equivalence standard,” the principle that “the medical management of HIV positive inmates and correctional staff should parallel that offered to individuals in the non-correctional community.” The NCCHC standards include provisions for adoption of the clinical guidelines established by the Centers for Disease Control for the treatment of HIV/AIDS; testing, counseling and education programs; prevention measures to reduce transmission; protection of confidentiality; and timely lab work, access to specialists and other measures designed to ensure continuity of care.84 The DOM also states that neither the NCCHC nor the ACA medical care standards are applicable to the local facilities (IGSAs) contracting with ICE.85 The federal Bureau of Prisons, which also houses some immigration detainees, explicitly references community treatment standards and guidelines in its Clinical Practice Guidelines for Management of HIV. This 43 page document provides thorough guidance for its medical staff in treating prisoners with HIV, in accordance with nationally recognized treatment guidelines. 86 Detainees who happen to be placed in federal Bureau of Prisons facilities are subject to a different, and higher, standard of medical care. The current US government system lacks uniformity and consistency, creating distinct populations of immigrant detainees subject to differing standards of medical care depending upon their custodian. In an effort to clarify the issue, Human Rights Watch submitted a Freedom of Information Act request 87 seeking copies of all policies and procedures related to HIV/AIDS care in immigration detention, ICE provided the DOM standards but also responded with additional documents. One document consisted of three pages identified only as “National Policy, chapter 8” (one page) and the other was entitled “Standard Operating Procedure” (two pages). These excerpts of larger documents state that chronic care in immigration detention shall be provided in a “chronic care clinic” and that chronically ill detainees shall receive “follow up” every 90 days. HIV/AIDS is on the list of “chronic” diseases. The source of these documents, however, was not identified, leaving it unclear which agency or agencies issued these policies and to which immigration facilities, if any, they apply. ICE Oversight of HIV/AIDS Care in Immigration DetentionInspection of Detention FacilitiesICE’s current mechanism for ensuring compliance with the National Detention Standards is one site visit per year to each of the 300 facilities housing immigrants in the United States.88 Inspections are conducted by the Detention Standards Compliance Unit, which employs 8 inspectors and three support staff.89 Inspections typically last 3 days and cover all 38 detention standards.90 Recent audits of detention centers by the Department of Homeland Security Office of Inspector General (OIG) and the US Government Accountability Service (GAO) identified significant defects in the ICE inspection system. In a section entitled “Thoroughness of ICE Detention Facility Inspection” the OIG addressed the failure of the ICE inspectors to identify the violations found shortly thereafter by the OIG: A final rating of acceptable was given to all five detention facilities, meaning the detention facilities were determined to be adequate and operating within standards, with some deficiencies. However, our review of the five facilities identified instances of non-compliance regarding health care and general conditions of confinement that were not identified during the ICE annual inspection of the detention facilities…This observation was beyond the planned scope of our work. However, we believe it needed to be brought to the attention of ICE management.91 In response to the OIG report, ICE “concurred” and stated that it “recognizes the need for independent review of its inspection process.” ICE agreed to authorize three full time, funded positions to the ICE Office of Professional Responsibility in order to improve the quality of the inspection process.92 Numerous prisons and jails contracting with ICE for immigration detention are accredited by the National Commission on Correctional Health Care (NCCHC) or the American Correctional Association (ACA). The Detention Standard for Medical Care recommends that contracting facilities be “accredited or accreditation-worthy.” Neither NCCHC nor ACA, however, requires on-site inspections of accredited facilities on either an annual or a semi-annual basis. Rather, once accreditation is achieved (requiring an initial on-site visit), it can be maintained for several years by submitting documentation of existing policies and procedures.93 Detainee ComplaintsInadequate medical care is one of the primary complaints of immigration detainees. This is true for complaints filed within specific facilities through the grievance procedures, 94 communicated to ICE itself,95 or addressed to NGOs such as the American Bar Association, the ACLU, and Human Rights Watch.96 However, recent government audits reveal ICE’s complaint monitoring procedures to be deficient in key respects. First, detainees are not sufficiently informed of how to communicate complaints to ICE. None of the five facility handbooks reviewed during the OIG audit advised detainees of the right to contact DOJ, ICE or anyone outside the facility.97 The GAO report noted that although some units posted a hotline number to ICE for complaints, the number did not work in 8 of 23 facilities inspected. ICE failed to effectively track, analyze, or resolve detainee complaints that they did receive. The GAO described a confusing process within ICE for handling detainee complaints involving three departments and sub-agencies and concluded that due to a lack of a formal monitoring system, “the number of reported allegations may not reflect the universe of detainee complaints.” Although complaints worthy of investigation were supposed to be referred to the Department of Removal Operations (DRO) for follow up, the GAO “could not determine the number of cases referred to DRO or their disposition.”98 The absence of a coherent monitoring process hindered ICE’s ability to identify patterns of violations in the nation’s detention centers and to take corrective action if necessary. In addition, the report criticized the agency’s lack of transparency, “…Our standards for internal control in the federal government call for clear documentation of transactions and events that is readily available for examination.”99 ICE Data re: HIV/AIDS Cases in DetentionHuman Rights Watch filed a Freedom of Information Act request seeking statistical information about immigrants with HIV/AIDS in immigration custody, including the number of detainees tested, diagnosed and treated for HIV/AIDS in the last five years.100 The documents received from ICE indicate that the agency largely fails to track this information, or that the information tracked is incomplete, failing to account for the hundreds of facilities throughout the country contracting with ICE to hold detainees. ICE responded “not tracked” to the following questions:
ICE reported that “the numbers below reflect all reported HIV cases to the DIHS Epidemiology Unit including those diagnosed per (sic) -ICE custody”:
ICE also reported the number of on-site “clinic visits” related to HIV/AIDS:
These numbers reflect that ICE collects HIV/AIDS statistics only from the few Service Processing Centers and Contract Detention Facilities where DIHS manages the health care services. The DIHS Epidemiology Unit collects no data related to HIV/AIDS from the more than 300 jails and regional centers housing the majority of detainees.101 71 42 USC 249 (a); 42 CFR 34.7 (a) (2003) 72 DIHS Medical Dental Covered Services Package, updated 9/4/07.http://inshealth.org/managed care/combined%20benefit%20package%202005.doc (accessed October 11, 2007). 73 DIHS Services Package, p.1. 74 Ibid. 75 Ibid. 76 DIHS Services Package p. 29. 77 Ibid. 78 National Commission on Correctional Health Care, Standards for Health Services in Jails, 2003; American Public Health Association, Standards for Health Care in Correctional Institutions, (2003); World Health Organization, Guidelines on HIV Infection and AIDS in Prisons (1999); UNAIDS, International Guidelines on HIV/AIDS and Human Rights (2006); UNODC, HIV/AIDS Prevention, Care, Treatment and Support in Prison Settings: A Framework for Effective National Response (2006). 79 Human Rights Watch interview with Warden David Streiff, Perry County Correctional Facility May 3, 2007; Human Rights Watch interview with Superintendent Lewis W. Barlowe, Piedmont Regional Jail June 20, 2007; Human Rights Watch interview with Lt. James Howell, Monmouth County Correctional Institution May 1, 2007.. 80 “Behind Bars,” supra, p. 6. 81 Human Rights Watch interview with Superintendent Lewis W. Barlowe, supra. 82 GAO Report, supra, at 1. 83 American Correctional Association, Performance-Based Standards for Correctional Health Care in Adult Correctional Institutions, January 2002. 84National Commission on Correctional Health Care, Position Statement, “Administrative Management of HIV in Corrections”, October 9, 2005, www.ncchc.org/resources/statements/admin_hiv2005.html, (accessed November 28, 2007.) See also, NCCHC Standards for Health Services in Jails, 2003 (2d Printing 2005), p. 187. 85 DOM, Medical Care, p. 1. 86 Federal Bureau of Prisons Clinical Practice Guidelines: Management of HIV, www.nicic.org/library/021582 (accessed November 28, 2007) 87 Letter from Human Rights Watch to ICE FOIA Office dated April 4, 2007 (Appendix). 88 OIG Report, supra, p. 36. 89 GAO Report, supra, p. 31. 90 Ibid; Human Rights Watch interview with Warden David Streiff, supra. 91 OIG Report, supra, p. 36. 92 Ibid. 93 See, Accreditation Procedures at www.ncchc.org and www.aca.org, (accessed October 2, 2007). 94 Human Rights Watch interviews with correctional officials, fn 76 supra. 95 GAO Report, supra, p.36. 96 GAO Report, supra p.37-38; Briefing Materials Submitted to the United Nations Special Rapporteur, supra; Human Rights Watch U.S. prisoner correspondence database. 97 In October 2007 ICE issued a new Detainee Handbook that provides the telephone number and address of the DHS Office of Inspector General. Plans for distribution and translation have not been made public. 98 GAO report, supra, p.37. 99 GAO report, supra, at 34-39. 100 FOIA letter, supra. 101 The DIHS Epidemiology Unit declined Human Rights Watch’s request for an interview. |