*6.2. ICE Detention Today*

Mid FFY2021, ICE had agreements to house adult detainees in 131 facilities in 38 states of which, 122 were in use. They are 38 dedicated detention centers housing ICE detainees only, and include five Service Processing Centers (SPCs),<sup>4</sup> 19 dedicated Intergovernmental Service Agreement (DIGSA) facilities,<sup>5</sup> and 14 Contract Detention Facilities (CDF),<sup>6</sup> all of which are supposed to comply with ICE Performance-based National Detention Standards (PBNDS). The remaining 84 facilities are non-dedicated, housing detainees, inmates and other prisoners, and include 47 Intergovernmental Service Agreement (IGSAs),<sup>7</sup> 35 U.S. Marshals Service Intergovernmental Agreements (USMS IGAs),<sup>8</sup> and two U.S. Marshals Service Contract Detention Facilities (USMS CDFs).<sup>9</sup> No detainees were assigned to a DOJ Bureau of Prison (BOP) facility at that time.<sup>10</sup> Most of these facilities are supposed

to comply with ICE's National Detention Standards. The USMS agreed to adopt the 2019 NDS at USMS CDF facilities but not at USMS IGA facilities; instead, ICE agreed to utilize the USMS contracts already in place with those providers. ICE also agreed to accept BOP standards when using its facilities.

Although dedicated detention facilities are supposed to comply with PBNDS detention standards and non-dedicated detention facilities, NDS detention standards, it does not always work out that way. Just these several detention practices—civilly held immigration detainees many of them comingled with criminally charged and convicted inmates, in over 100 correctional facilities, operating under five different sets of expectations, all of them based upon corrections policy and practice, in conditions more restrictive than many pre-trial prisoners are exposed—illustrate how insidious incarceration can be.

Currently, there is some discussion "on the Hill" about moving away from privately owned and operated correctional facilities altogether and using only those that are publicly owned and operated. Numerous studies by Congress and the White House have concluded most of the detention facilities that ICE uses are chronically deficient. Advocates point out, public or private, they are still correctional facilities, staffed with correctional personnel, operating pursuant to correctional detention standards, holding detainees in conditions as punitive as those in jails and prisons, perpetuating the belief that detainees are dangerous and should be punished. Some imagine readily available, non-secure settings appropriate for most civilly-held individuals, conveying the civil nature of their proceedings, the contributions they made already before their arrival, and their suitability to be our neighbors (Schriro 2009).

### **7. Detainee Healthcare: The Right to Receive Treatment**

The case law is clear. Adequate healthcare is a fundamental right of the detained (Estelle v. Gamble 1976), and it cannot be conditioned upon the facility to which detainees are assigned (Cuoco v. Moritsugu 2000).<sup>11</sup> ICE must provide detainees with the actual care necessary to treat their medical conditions at every facility (Rosemarie M. v. Morton 2009). This can only occur when one clear set of expectations consistent with the corresponding case law is uniformly executed nationwide.

The overall responsibility for detainee healthcare rests with the Immigration Health Service Corps (IHSC) within Enforcement and Removal Operations (ERO). The IHSC serves as the medical authority for detainee healthcare issues, establishes the formulary, and oversees the financial authorization and paymen<sup>t</sup> for off-site specialty and emergency care services. The IHSC is also the healthcare provider at approximately half of 38 to 40 dedicated detention facilities and provides medical case managemen<sup>t</sup> and oversight of the medical care administered by 84 non-IHSC providers at the other facilities (ICE IHSC 2021). Unlike correctional healthcare however, which is premised on the community standard of care, the IHSC deviates in its delivery, conditioning care on cost containment and anticipated time to removal or release, all too often delaying or denying care. Frequently occurring examples of IHSC's questionable decision-making include denials of corrective lenses and hearing aids to address vision and hearing impairments, dental cleanings within the first six months at a facility, and dental treatment for cavities—instead, detainees are redirected to the commissary to purchase "cheaters" regardless of their vision problem, and teeth requiring attention are extracted; cavities are not filled. Most physical ailments are treated with ibuprofen, and some mental health symptoms as well; there are no clinical services.

Although ICE's healthcare policy is established by IHSC, independently of ICE, IHSC is not responsible for healthcare outcomes. Instead, the delivery of detainee healthcare, and ultimately, detainees' health and safety, are the responsibility of each detention facility with which ICE contracts in accordance with that agreemen<sup>t</sup> which specifies in part, its assigned detention standards. This is an especially impactful provision at all the non-dedicated facilities where the state or local health department determines what is medically necessary.

### *7.1. Performance-Based National Detention Standards (PBNDS) for Dedicated Facilities*

2008 PBNDS, 22 Medical Care, states, "All detainees shall have access to emergent, urgent, and non-emergen<sup>t</sup> medical, dental, and mental health care within the scope of services provided by the Division of Immigration Health Services (ICE 2008c)".

*2011 PBNDS, 4.3 Medical Care*, states, "All detainees shall have access to appropriate and necessary medical, dental, and mental health care, including emergency services (ICE 2011c)".

2011 PBNDS (rev. 2016), 4.3 Medical Care, also provides, "All detainees shall have access to appropriate and necessary medical, dental, and mental health care, including emergency services (ICE 2016c)".

### *7.2. National Detention Standards for Non-Dedicated Facilities*

*2000 NDS, Medical Care*, states, "All detainees shall have access to medical services that promote detainee health and general well-being (ICE 2002c)".

*2019 NDS, 4.3 Medical Care*, Policy, states, "All detainees shall have access to appropriate medical, dental, and mental health care, including emergency services (ICE 2019c)".

The inconsistencies in expectations and service delivery were especially apparent during the pandemic.
