*7.3. Pandemic Planning and Preparation*

Pandemic planning and preparation are not new and there is no question as to its necessity. Over the course of DHS' 20-year history, the federal governmen<sup>t</sup> has responded to the Severe Acute Respiratory Syndrome (SARS) between 2002 and 2004, H1N1 in 2009, Middle East Respiratory Syndrome (MERS) in 2012, Ebola between 2014 and 2016, Zika between 2015 and 2016, and the Coronavirus (COVID-19) since 2019 (Council on Foreign Relations 2021). Despite the continual threat each outbreak presents systemwide, ICE's Medical Care Detention Standards vary considerably in their responses to infectious disease and infection control.

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

PBNDS 2008, PBNDS 2011, and PBNDS 2011 (rev. 2016) Detention Standard Medical Care considered Communicable Disease and Infection Control at length, and provide detailed instructions to identify and address tuberculosis, significant communicable diseases (the most commonly occurring, chicken pox, measles, mumps, whooping cough, and typhoid), and blood-borne pathogens (notably, hepatitis and HIV).

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

NDS 2000 and 2019 NDS Detention Standards Medical Care are far narrower in their consideration of communicable diseases, contemplating just the identification of tuberculosis and only during the intake screening, although NDS 2019 is also the only Medical Care standard to reference CDC guidelines, including CDC Guidelines for Correctional Facilities, in its screening requirements for TB.

NDS 2000 also dedicated a section to HIV/AIDS, the only standard to address operational issues associated with HIV/AIDS when it was published. Although NDS 2000 is still in use, it has never been updated and this section is outdated and should be revised or removed.

Regarding the treatment all other Infectious and Communicable Diseases, both NDS 2000 and 2019 are quite terse. NDS 2000 states in its entirety, "[d]etainees diagnosed with a communicable disease shall be isolated according to local medical operating procedures". NDS 2019 directs, "[t]he facility will have written plans that address the managemen<sup>t</sup> of infectious and communicable diseases, including testing, isolation, prevention, and education. This also includes reporting and collaboration with local or state health departments

in accordance with state and local laws and recommendations". It is up to the state or local health department to determine what this is.

ICE's decision that non-dedicated facilities are governed by state or local law is consequential when trying to assess the impact of COVID-19 on detainees in those facilities: in keeping with NDS 2000 and NDS 2019, each facility shall report positive test results—and deaths attributed to the coronavirus—according to that jurisdiction's policy or practice. As of June 2021, ICE reported detention facilities had administered 219,547 COVID-19 tests to detainees of which, 18,797 tests were positive for the coronavirus (8.5%) including nine patients known to have died and 851 patients currently in ICE custody, (ICE 2021b), a considerable number at a time that the percent of infected people in the community was at its lowest value in over a year (CDC 2021b). Studies show the actual number of COVID-19 detainee deaths nationwide may be as much as 5.5 times greater than reported by ICE due to jurisdictional differences in testing and reporting practices (Dolovich 2021).

### **8. ICE's Adaptation of CDC Interim Guidance on Management of Coronavirus Disease 2019 in Correctional and Detention Facilities**

IHSC issued ICE's initial instructions to the field (ICE IHSC 2020). Thereafter, ERO released an Action Plan (ICE ERO 2020f) and then, Pandemic Response Requirements (PRR) (ICE ERO 2020a), to implement the CDC Interim Guidance (CDC 2020). ICE's earliest releases are especially revealing as to the dichotomy that differing detention standards created.

Interim Reference Sheet on 2019-Novel Coronavirus (COVID-19), Version 6.0. The first Interim Reference Sheet to be made available to the public is Version 6.0, on 6 March 2020, concerning CDC's expanded testing to include a wider group of symptomatic detainees ICE. IHSC's Sheet directed facility providers use their judgement to determine whether patients should be tested. It also "strongly encouraged" them to test for other causes of respiratory illness such as influenza (ICE IHSC 2020).

Coronavirus Disease 2019 (COVID-19) Action Plan, Revision 1. The next publicly available document and ERO's first release is its COVID-19 Action Plan, Revision 1, dated 27 March 2020 (ICE ERO 2020f). It was ICE's most comprehensive effort to date to mitigate risk of infection and transmission among detainees and staff but applied *only* to IHSCstaffed and non-IHSC-staffed, ICE-dedicated facilities.

Intergovernmental partners and non-dedicated facilities were instructed to take their directions from their local, state, tribal, territorial, and federal public health authorities, although it recommended that they consider the dedicated facilities' instructions as "best practices". It was one of the earliest and clearest demarcations in ICE's expectations for the field's response to COVID-19: Dedicated facilities must comply, non-dedicated facilities may. In fact, few did.

COVID-19 Pandemic Response Requirements. ERO released COVID-19 Pandemic Response Requirements (PRR), Version 1, on 10 April 2010 (ICE ERO 2020a), the first of six, addressing an agency-wide healthcare crisis with some requirements for dedicated detention facilities, and others for non-dedicated facilities, and a statement of sorts for all facilities.

In June 2020, PRR Version 2 attempted to address the considerable confusion—and criticism—that its facility-specific approach to a nationwide threat had generated, now insisting ERO's PRR establishes mandatory requirements, as well as best practices, for *all* its detention facilities in response to COVID-19 (ICE ERO 2020b). The DHS Office of Inspector General (OIG) disagreed with ICE's assertion that it had issued universal expectations for all facilities in its in June 2020 report about detention facilities' early experiences with COVID-19), reiterating ICE had provided guidance regarding COVID-19, but only dedicated detention facilities must comply (OIG 2020).

PRR Version 2 brought to light another disparity in ICE's detention management. Not all its agreements with facility operators contained compliance measures, and where there were provisions, they varied by contract in their consequences, and others had no provisions for penalties. Specific to the pandemic, differences in the facilities' provisions

to impose sanctions for non-compliance with the PRR varied considerably and none of the dedicated facilities without a certain mechanism, a quality-assurance surveillance plan (QASP), could be penalized (OIG 2020). In another report by the DHS OIG just the year before, and referenced above, it found only a few of the contracts it had reviewed included a QASP, and ICE had exercised this provision on only two occasions (OIG 2019).

PRR Version 3 issued in July 2020 (ICE ERO 2020c), PRR Version 4 issued in September 2020 (ICE ERO 2020d), PRR Version 5 issued in October 2020 (ICE ERO 2020e), and PRR Version 6 issued in March 2021 (ICE ERO 2021) continued to differentiate detention operators' responsibilities by facility type.

### **9. ICE's Pandemic Plan: Feedback from Federal Oversight Agencies**

Both the GAO and the DHS OIG have released reports about ICE's readiness for and response to the pandemic.

Department of Homeland Security (DHS) Office of Inspector General. In April 2020, the DHS OIG surveyed 196 detention facilities in use at that time about their experiences and challenges managing COVID-19; 188 facility operators responded representing 31 dedicated and 157 non-dedicated facilities, of which only 18 dedicated facilities were IHSCstaffed. Overall, 93% (175) of the facilities reported they were prepared to handle COVID-19 (OIG 2020). Generally, respondents stated they had adequate supplies for detainees to mitigate the spread of COVID-19. Specifically, 89% (168) said they had enough masks for detainees who exhibited COVID-19 symptoms or tested positive for COVID-19. About 90% (170) of facilities reported having enough liquid soap for detainees but more than one-third (69) reported not having enough hand sanitizer for their use.

There were demonstrable differences however, in readiness by facility type. For example, 85% of dedicated facilities (26 of 31) had on-site testing capacity compared to 54% of non-dedicated facilities (84 of 157). The disparity and its impact are significant: The ability to test on-site frequently determines whether detainees are tested at all—77% (24 of 31) of dedicated facilities reported testing detainees for potential COVID-19, whereas only 20% (32 of 157) of non-dedicated facilities reported doing so (ICE 2020b).

Quite a few facilities also reported significant limitations due to their physical space, its configuration and size. Of note, 11% (21) did not have the capacity to quarantine or isolate detainees who exhibited suspected COVID-19 symptoms, 12% (23) could not quarantine or isolate a detainee who had tested positive for COVID-19; and 29% (55) did not have negative pressure ventilation rooms to isolate airborne infections. Another one-third (62) had only one or two negative pressure rooms in their facilities.

Again, survey results conveyed the disparity between dedicated and non-dedicated facilities. Every dedicated facility (31) reported being able to quarantine or isolate detainees with confirmed cases of COVID-19, whereas 15% (21 of 157) of non-dedicated facilities reported they could not, and all but one dedicated facility had negative pressure ventilation rooms while 34% (54 of 165) of non-dedicated facilities did not.

As mentioned in the previous section, the OIG also took note that ICE had provided guidance regarding COVID-19 to all the facilities, much of which was applicable only to dedicated facilities and facilities with IHSC staff, and non-dedicated facilities and those without IHSC staff—the majority—were not obligated to comply. The artificial line that ICE created as to facilities' accountability also affected its efforts to communicate effectively with the field. The OIG determined about 83% (156) of facilities had received COVID-19 guidance from ICE headquarters and 75% (141) had received guidance from IHSC. Responses regarding the receipt of guidance differed however, between dedicated and nondedicated facilities. For example, every dedicated facility reported it had received guidance from ICE regarding COVID-19, whereas almost 20% (32) of non-dedicated facilities reported they had not. Similarly, all but one dedicated facility reported receiving IHSC guidance, while 27% (43) of non-dedicated facilities reported they did not. It is difficult for the non-dedicated facilities to consider information from ERO as best practices when they were not received.

In September 2021, the DHS OIG released its assessments of nine detention facilities' responses to COVID-19 (OIG 2021). The OIG conducted unannounced remote inspections in response to congressional requests for a more in-depth review than the year before to determine whether ICE effectively controlled COVID-19 and adequately safeguarded the health and safety of detainee and detention staff. The areas that the OIG considered included maintaining adequate supplies of personal protective equipment, enhanced cleaning, and proper screening for new detainees and staff. The OIG identified a number of areas where the facilities struggled to properly manage the health and safety of detainees. For example, they observed instances where staff and detainees did not consistently wear face masks or socially distance. They also noted that some facilities did not consistently manage sick calls and did not regularly communicate with detainees about their COVID-19 test results. Although the OIG found that ICE was able to decrease the detainee population to help mitigate the spread of COVID-19, information about their transfers was limited. Its staff also found that testing of both detainees and staff was insufficient, and that ICE headquarters generally did not provide effective oversight of the facilities during the pandemic. Overall, the OIG concluded, ICE must resolve these issues to ensure it can meet the challenges of the COVID-19 pandemic, as well as future pandemics.

The Government Accounting Office. In June 2021, the GAO released a report summarizing its examination of ICE's policies and procedures for responding to COVID-19 in the field and how they were implemented at six facilities; ICE's mechanisms for conducting oversight of COVID-19-related health and safety measures; and ICE's data on COVID-19 cases and identified high-risk health factors among detainees, between January 2020 and March 2021 (GAO 2021). The study had been requested by unspecified Congressional committees. GAO staff reviewed ICE documents and interviewed ICE officials at headquarters and select facility operators between May 2020 and June 2021 about initial ERO communication, interim guidance and policy documents, detainee intake screening and testing, the identification of high-risk detainees, quarantine and isolation, hygiene and PPE supplies, cleaning and disinfection, social distancing and education efforts, and visitation procedures. The report summarized the interviews and surveys upon which ERO relied to monitor facilities' COVID-19 activities remotely during the pandemic. The GAO staff did not consider detainee grievances, formulate opinions, or make any recommendations, as it often does.
